Relative Impermeability of The Wall of Separation: Marriage Equality in The Philippines

Asian Journal of Comparative Law, Page 1 of 32
doi:10.1017/asjcl.2018.17
© National University of Singapore, 2018
Relative Impermeability of the Wall

of Separation: Marriage Equality in
the Philippines
Raphael Lorenzo Aguiling PANGALANGAN*

University of the Philippines College of Law, The Philippines
rapangalangan@up.edu.ph
Abstract
The Philippine doctrine on the separation of church and state, while rooted in American
constitutional tradition, continues to show vestiges of Spanish colonial rule. The
Philippines adopted the union of church and state for three and a half centuries as a
Spanish colony, but became a secular state after it was ceded to the United States of
America in 1898. The wall of separation has since been maintained in all subsequent
Philippine constitutions, only to be compromised in statutes and daily life. That conflict is
most evident in marriage, a legal institution openly shaped by canon law. Falcis v Civil
Registrar-General, the marriage equality petition pending before the Philippine Supreme
Court, seeks to end that practice. But note the irony: while the US Supreme Court in
Obergefell v Hodges secularizes marriage and disconnects it from religion, Falcis takes an
opposing route in anchoring marriage equality on religious freedom. This article looks at
the prospect of that gambit. By contrasting the legal and theological contexts from which
Obergefell and Falcis stem, the article shows how the demands of same-sex union and
church-state separation are tightly intertwined.
i. the philippines: a secular state

The separation of church and state has long been adopted in the Philippines,1
entrenched in legal doctrine but compromised in practice. After 350 years under
Spanish rule, during which Catholicism was the state religion, the Philippines was
ceded to the United States of America (US) through the Treaty of Paris of 1898 (1898
* Lecturer, Department of Philosophy, University of the Philippines; Master of Studies in International

Human Rights Law candidate (University of Oxford), Diploma in Advanced Studies on Human Rights
and Humanitarian Law (American University); Juris Doctor (University of the Philippines); Bachelor of
Arts in Philosophy cum laude (University of the Philippines). An earlier draft of the essay received
honours for the 2015-2016 international essay contest on ‘Religious Freedom in Southeast Asia and the
West’ jointly organized by the Institute for Global Engagement and the Leimena Institute.
1. 1987 Constitution of the Republic of the Philippines (1987 Constitution), art II, s 6: ‘The separation of
Church and State shall be inviolable.’ cf ibid art III, s 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.’
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2 asian journal of comparative law
Treaty) which guaranteed the free exercise of religion.2 All subsequent Philippine
constitutions, from those in the American era up to the current 1987 Constitution of
the Republic of the Philippines (1987 Constitution), would preserve the non-
establishment3 and free exercise4 doctrines of America’s First Amendment.5
The doctrine of separation seeks to guarantee that the ‘government neither engage in
nor compel religious practices’, ‘effect no favoritism’, and ‘work deterrence of no
religious belief’.6 But note the ultimate irony: though the wall of separation was
intended in American constitutional tradition to keep the realms of God and Caesar
apart, in the Philippines it is used to carry out God’s will with Caesar’s sword. This is
most evident in the legal institution of marriage, which is characterized by the
unabashed commingling of canon and civil law. Indeed, apart from the Vatican, the
Philippines is the only state in the world that does not allow for absolute divorce.7
Notwithstanding its common law origin, religious freedoms have evolved differently in the
Philippine legal system. While American constitutional law erects the colloquial ‘Jeffersonian
wall’8 of strict separation9 to shield the state from the church,10 the Philippines does the
opposite: it adopts the principle of benevolent neutrality to protect the church from the
state.11 Like a one-way mirror, the wall of separation in the Philippines is thus only relatively
impermeable; adverse to government action, yet pervious to creed. This is most evident in
the legal institution of marriage, which has historically morphed ecclesiastic marital
presumptions into legal doctrine – a major obstacle for the marriage equality movement.
The purpose of this article is to study this shared principle of religious freedom as
used in the US and the Philippine jurisdictions in relation to two cases on marriage
equality: Obergefell v Hodges12 (Obergefell) decided by the US Supreme Court, and
Falcis v Civil Registrar-General13 (Falcis Petition) pending before the Philippine
2. Treaty of Peace of December 10, 1898, in Message from the President of the United States, transmitting a
Treaty of Peace Between the United States and Spain, Signed at the City of Paris, on December 10, 1898,
55th congress, 3rd session, doc no 62, pt 1, (Washington Government Printing Office, 1899) (Treaty of
Paris 1898), art X: ‘The inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of their religion.’
3. 1987 Constitution, art III, s 5.
4. ibid.
5. Constitution of the United States (US Constitution), Amendment I: ‘Congress shall make no law
respecting an establishment of religion’. cf Everson v Board of Education (1947) 330 US 1, 16, which
provides that while the First Amendment does not expressly provide for the separation of church and
state, ‘the clause against establishment of religion by law was intended to erect a wall of separation
between church and State’.
6. Abington School District v Schempp (1963) 374 US 203, 305.
7. Elizabeth Aguiling-Pangalangan, Marriage and Unmarried Cohabitation: The Rights of Husbands,
Wives, and Lovers (University of the Philippines College of Law 2014) 248.
8. Reynolds v United States (1878) 98 US 145, 164. Thomas Jefferson, in reply to an address to him by a
committee of the Danbury Baptist Association, suggests that a ‘wall of separation’ must be built between
the realms of church and state.
9. Lemon v Kurtzman (1971) 403 US 602.
10. Zorach v Clauson (1952) 343 US 306.
11. Estrada v Escritor, AM No P021651 (22 June 2006), (2006) 492 SCRA 1, 68.
12. (2015) 576 US ____, Slip Opinion at < www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf >
accessed 15 February 2017. All citations to Obergefell hereinafter are to the Slip Opinion.
13. Petition for Certiorari and Prohibition, Falcis v Civil Registrar-General, GR No 217910 (18 May 2015)
[Falcis Petition].
relative impermeability of the wall of separation 3
Supreme Court. By framing religious freedoms as the backdrop of the Philippines’

marriage equality movement, this article seeks to establish how the demands of same-
sex unions and church-state separation are tightly intertwined.
ii. same constitutional doctrine, different

historical context
The Philippine legal system may be founded on American political tradition, yet it
continues to grapple with severing deeply inculcated influences of Spanish civil law. As
a colony of Spain from the mid-1500s to June 1898, the Philippines adopted ‘the union
of church (Roman Catholicism) and state in the Philippine archipelago’.14 It was only
in light of the 1898 Treaty and ‘the defeat of the [Philippine] independence movement,
[that] the United States Congress adopted the Philippine Bill of 1902 which extended
the ‘free exercise’ and ‘establishment’ clauses for Filipinos’.15
Notwithstanding its common law etymology, Philippine free exercise rights have
since deviated from its US counterpart in light of varying socio-political contexts.
Indeed, while the Jeffersonian wall of separation is applied to a pluralist community in
the US, the Philippine religious profile remains unequivocally majoritarian.16 In a 2010
census, respondents reported over forty distinct religious affiliations, none of which
have a mandate constituting a majority of the US population.17 In contrast, Philippine
society is predominantly Roman Catholic.18
Table 1. Religious Demography
PHILIPPINES
RELIGIOUS AFFILIATION 2010 %
Roman Catholic, including Catholic Charismatic 74,211,896 80.6%

Islam 5,127,084 5.6%
Others/Not Reported 3,953,917 4.3%
Evangelicals (Philippine Council of Evangelic Churches) 2,469,957 2.7%
Iglesia ni Cristo 2,251,941 2.4%
Non-Roman Catholic and Protestant (National Council of Churches in the 1,071,686 1.2%
Philippines)
Aglipay 916,639 1%
Seventh Day Adventist 681,216 0.7 %
Bible Baptist Church 480,409 0.5%
United Church of Christ in the Philippines 449,028 0.5%
Jehova’s Witness 410,957 0.4%
None 73,248 0.1%
14. Raul C Pangalangan, ‘Country Reports: Philippines’ in Human Rights Resource Center (HRRC), Keeping
the Faith: A Study of Freedom of Thought, Conscience, and Religion in ASEAN (HRRC 2015) 364.
15. ibid.
16. ibid.
17. See United States Census Bureau, ‘Statistical Abstract of the United States: 2011’ (130th edn, United
States Census Bureau 2011), 61 table 75 < www2.census.gov/library/publications/2010/compendia/
statab/130ed/tables/11s0075.pdf > accessed 27 June 2018.
18. See Philippine Statistics Authority, ‘The Philippines in Figures 2015’ (Philippines Statistics Authority
2015), 28 < https://psa.gov.ph/sites/default/files/2015%20PIF_0.pdf > accessed 27 June 2018.
While the principle of separation may have been lifted in language and doctrine
from American constitutional law, it is clearly applied in a fundamentally different
context.19 The purpose of this article is to study the principle of religious freedom vis-à-
vis marriage equality in the Philippine legal system and determine where along the way
its path diverged from the US doctrine whence it came.
A. The Marriage Equality Petition: Obergefell v Hodges

On 28 April 2015, petitioners ranging from a toddler adopted by a married same-sex
couple to same-sex married parents and grieving widowers20 appeared before the US
Supreme Court to fight for the right of homosexual couples to lawfully enter into
marriage.21 Barely three weeks later, Jesus Falcis, ‘as an open and self-identified
homosexual’, likewise filed his Petition for Certiorari and Prohibition before the
Philippine Supreme Court seeking a declaration that ‘the provisions of the Family Code
disallowing same-sex marriage’ are unconstitutional.
In both the Philippines and the US, the institution of marriage has been historically
celebrated as a union between two persons of the opposite sex.22 The respondents in
Obergefell claimed that it should remain as such, alleging that same-sex marriages
would ‘demean a timeless institution’ which by ‘its nature [is] a gender-differentiated
union of man and woman’.23 The petitioners acknowledged the historical basis for
marriage, but argued that the debate should not end with it.24
The US Supreme Court, in a 5–4 decision, ruled that the right of same-sex couples to
marry is part of the liberty promised under the due process and equal protection
clauses of the Fourteenth Amendment.25 Detaching ecclesiastic interests from the
marriage equality petition before it, the court characterized marriage as a mere
‘voluntary contract’.26 Indeed, in the body of the decision, religion came to the fore
merely to recognize the antiquated, and purportedly abandoned, theological
underpinnings of the marital bond.27 Religious liberties, on the other hand, were
addressed only to ‘emphasize that religions, and those who adhere to religious
doctrines, may continue to advocate… by divine precepts, [that] same-sex marriage
should not be condoned’.28
19. Pangalangan, ‘Country Reports: Philippines’ (n 14) 364.

20. Reply Brief for Petitioners, Obergefell v Hodges, No 14-556 (17 April 2015), 1.
21. ibid 11; Brief for Petitioners, Obergefell v Hodges, No 14-556 (27 February 2015), 18. cf US
Constitution, Amendment XIV: ‘No State shall… deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
22. Obergefell (n 12) 1. See Executive Order No 209, Family Code of the Philippines (promulgated 6 July
1987 by President Corazon C Aquino) (Family Code), art 1 (‘Marriage is a special contract of permanent
union between a man and a woman entered into in accordance with law for the establishment of conjugal
and family life.’).
23. Obergefell (n 12) 4.
24. ibid.
25. ibid 22.
26. ibid 6.
27. ibid.
28. ibid 27.
Further, state-sanctioned same-sex unions were not found to violate First

Amendment rights.29 The US Supreme Court opined that to advocate for or against
same-sex marriage whether by reason of religious conviction or secular belief is a
right protected under the US constitution. What is not constitutionally permissible is
‘to bar same-sex couples from marriage on the same terms as accorded to couples of
the opposite sex’.30
B. What Would Jesus Do?: The Case of Falcis v Civil Registrar-General

On 18 May 2015, Falcis filed his Petition for Certiorari and Prohibition as an ‘open
and self-identified homosexual…interested in the unconstitutionality of the
provisions of the Family Code disallowing same-sex marriage’.31 Disregarding the
doctrine of hierarchy of courts,32 Falcis dispensed with the courts of first instance (ie
the Regional Trial Court) and directly filed his petition with the Supreme Court – ‘the
court of last resort’.33
The petition sought: (1) a declaration that Articles 1,34 2,35 46(4),36 and 55(6)37
of the Family Code of the Philippines (Family Code) are unconstitutional on the
ground that Congress gravely abused its discretion in ‘defining and limiting marriage
as between man and woman’;38 and (2) an order ‘prohibit[ing] the civil registrar-
general from enforcing the portions of Articles 1 and 2 of the Family Code in
processing applications for and in issuing marriage licenses against homosexual
couples’.39
Similar to Obergefell, Falcis claimed that ‘homosexuals are deprived of their right of
due process, equal protection, [and] the right to decisional and marital privacy’.40 But
the Falcis Petition likewise reaches beyond its US counterpart – it grounds the
legitimacy of same-sex marriages on religious freedoms.
29. US Constitution, Amendment I.

31. Falcis Petition (n 13) para 2.
32. Far Eastern Surety and Insurance Co, Inc v People of the Philippines, GR No 170618 (20 November
2013), (2013) 710 SCRA 358 (‘direct resort… to the Supreme Court will not be entertained unless the
appropriate remedy cannot be obtained in the lower tribunals’).
33. Dy v Bibat-Palamos, GR No 196200 (11 September 2013), (2013) 705 SCRA 613, 621.
34. Family Code (n 22) art 1.
35. ibid art 2 (‘No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of
the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of
the solemnizing officer.’).
36. ibid art 46(4) (‘Any of the following circumstances shall constitute fraud referred to in Number 3 of the
preceding article: … Concealment of … homosexuality or lesbianism existing at the time of the
marriage.’). cf ibid art 45(3) (‘A marriage may be annulled [when] the consent of either party was
obtained by fraud’).
37. ibid art 55 (‘A petition for legal separation may be filed on any of the following grounds… (6) Lesbianism
or homosexuality of the respondent’).
38. Comment (Ad Cautelam) of the Office of the Solicitor General (OSG), Falcis v Civil Registrar-General,
GR No 217910 (18 May 2015), para 8(a), citing Falcis Petition (n 13) paras 1.1 to 1.2.
39. ibid para 8(b) citing Falcis Petition (n 13) para 1.3.
The prefatory statements of the Falcis Petition cited Ang Ladlad LGBT Party v
Commission on Elections to frame the debate, ie, that Philippine democracy prohibits
the exclusion of values of other members of society by reason of religious or moral
views.41 But despite emphatically opening with the separation of church and state, the
doctrine of non-establishment is not once forwarded in the body of the petition. Rather,
religious freedoms would only be substantively discussed in the final paragraphs of the
thirty-one-page pleading42 through the right to free exercise of religion enshrined in
Section 3(1), Article XV of the 1987 Constitution, which mandates the state to defend
‘the right of spouses to found a family in accordance with their religious convictions’.
Falcis claimed that the challenged provisions of the Family Code effectively prohibit
same-sex couples from founding a family through the vehicle of marriage in line with
their faith.43 In other words, by reserving the legal institution of marriage to
heterosexual couples alone, gay Christian Filipinos belonging to pro-LGBT religious
denominations, such as the members of the Metropolitan Community Church44
(MCC) and the Lesbian Gay Bisexual Transgender and Straight Christian Church Inc45
(LCCI) – a breakaway group of the MCC46 – are ‘denied […] the right to found a
family in accordance with their religious convictions’.47
On 29 March 2016, the Office of the Solicitor General (OSG) opposed the court
petition – allegedly not to hamper the marriage equality movement, but to defend it.48
Avoiding the merits of the case altogether, the OSG forwarded in its Comment (Ad
Cautelam) that the petition was ‘so intrinsically [procedurally] flawed that it is
incumbent upon the honourable court to summarily dismiss the case’.49 Notably, the
OSG opposed the petition’s form and not its cause.
The Falcis Petition is indeed riddled with remedial lapses. The OSG points out that
the mere fact that Falcis ‘comes before the honourable court as an “open and self-
identified homosexual… interested in the unconstitutionality of the provisions of the
Family Code disallowing same-sex marriage” does not confer him legal standing’.50
Likening the Falcis Petition to an open invitation to ‘coffee-shop conversation’ rather
than ‘constitutional litigation’, the OSG submitted that a judicial decision on the matter
41. Ang Ladlad LGBT Party v Commission on Elections, GR No 190582 (8 April 2010), (2010) 618 SCRA
32, 72.
42. Falcis Petition (n 13) paras 84 to 88.
44. ibid para 86.
45. ibid. See also Erika Sauler, ‘15 gay couples celebrate US victory with mass wedding’ Philippine Daily
Inquirer (Manila, 28 June 2015) < http://lifestyle.inquirer.net/198612/15-gay-couples-celebrate-us-
victory-with-mass-wedding/ > accessed 29 June 2018.
46. Rev Crescencio ‘Ceejay’ Agbayani Jr, ‘LGBTS CHRISTIAN CHURCH INC. is an independent and
autonomous Christian Church since October 13, 2012’ (LGBTS CHRISTIAN CHURCH INC, 2017)
< https://lgbtschristianchurch.wordpress.com/2017/09/20/lgbts-christian-church-inc-is-an-independent-
and-autonomous-christian-church-since-october-13-2012/ > accessed 29 June 2018.
48. Oscar Franklin Tan, ‘SolGen did not oppose same-sex marriage’ Philippine Daily Inquirer (Manila, 4
April 2016) < http://opinion.inquirer.net/94125/solgen-not-oppose-sex-marriage > accessed 29 June
2018.
49. Comment of the OSG (n 38) para 3.
50. ibid para 11, citing Falcis Petition (n 13) para 2.
would be nothing more than ‘an advisory opinion, without binding effect on real
parties that were not impleaded’.51
The OSG’s comment gives a laundry list of procedural missteps that warrant the
petition’s dismissal. These include Falcis’ lack of ‘injury in fact’ from the operation of
the Family Code – an essential element in establishing legal standing;52 the error in
impleading the civil registrar-general, who ‘merely exercises technical supervision over
local civil registrars’;53 the failure to implead an indispensable party, the Philippine
Congress;54 and the advisory nature of the inquiry.55
The OSG further asserted that there was also an error in the relief sought.56 The
petitioner argued that his ‘ability to find and enter into long-term monogamous same-
sex relationships is impaired because of the absence of a legal incentive for gay
individuals to seek such a relationship’.57 The OSG responded that ‘the grant of the
reliefs sought in the petition [would] not lead to the establishment of a legal incentive
for gay individuals to seek [same-sex] relationships’ with Falcis per se.58
Finally, citing Obergefell, the OSG distinguished the Falcis Petition from its western
counterpart. The US decision was ‘rendered in view of [n]umerous cases about same-
sex marriage’.59 The Philippines, however, does not enjoy that same luxury. The
Supreme Court has neither jurisprudence nor factual findings ‘mixed in the judicial
cauldron that would help it explain … the constitutional status of same-sex marriage in
the Philippines. To decide … would be to brew with missing ingredients’.60
Obergefell is celebrated as the product of a collective effort, yet the Falcis Petition is
criticized as the making of an individual’s caprice.61 While years of litigation, political
advocacy and debates, as well as coalition-building paved the way for the Obergefell
doctrine, Falcis – ‘all by himself, unassisted – puts on the line the future of a social
movement and gambles the right of homosexuals’.62
Falcis boldly claimed that religious freedoms reinforce his petition for marriage
equality. The following sections will look at the prospect of his gambit.
iii. marriage: the union of canon and civil law

Both American and Philippine case law recognize the marital union as a relationship of
transcendental importance.63 Although both jurisdictions acknowledge marriage as a
51. ibid para 4.

52. ibid para 12.
53. ibid para 27.
54. ibid para 20.
55. ibid para 17.
56. ibid para 35.
57. ibid para 13 citing Falcis Petition (n 13) para 30.
58. ibid para 13.
59. ibid para 44.
60. ibid para 45.
61. See eg Tan (n 48).
62. Comment of the OSG (n 38) para 48.
63. See eg Maynard v Hill (1888) 125 US 190; De Santos v Angeles, GR No 105619 (12 December 1995),
(1995) 251 SCRA 206.
pillar of social order, the two diverge on the role religion plays in that bond. In
Obergefell, the US Supreme Court upheld the right of same-sex couples to enter into
marriage on the grounds of due process and equal protection, free expression, and
marital privacy, among others.64 Through Obergefell’s main opinion, Justice Kennedy
explains that marriage, though once viewed as a religious concern, is contemporarily
‘understood to be a voluntary contract’.65 The Falcis Petition likewise raises the issue
before the Philippine Supreme Court. However, unlike in Obergefell, Philippine courts
have historically integrated religious tradition into the country’s marriage laws. Indeed,
the Family Code – the lex generalis on marriage – is openly recognized to have been
shaped by the position of the Catholic majority and its clergy.
A. De Facto Divorce: The Marriage of Canon and Civil Law

The Philippines is the outlier nation that does not grant divorce decrees in its general
law. Instead, the Family Code allows only for ‘relative divorce’66 by way of legal
separation67 – a disunion a mensa et thoro68 where the marital bond subsists
notwithstanding the suspension of common marital life.69 This ‘involves nothing more
than the bed-and-board separation of the spouses’.70
The Philippines also provides for de facto divorce71 through Article 36 of the Family
Code,72 which allows for a declaration of nullity of marriage on the obscure and
sweeping basis73 of ‘psychological incapacit[y]… to comply with essential obligations
of marriage’.74 Justice Sempio-Diy, a luminary on Philippine family law, explains that
the Canon Law concept of psychological incapacity was adopted by the Family Code
for three reasons: (1) it was intended to be a substitute for divorce; (2) it was viewed as
a solution to church-annulled marriages; and (3) it served as an additional remedy for
problematic marriages not falling under the Family Code provisions on void or
voidable marriages.75
A fourth reason was identified by the Philippine Supreme Court, which has
historically recognized the scriptural bases of this proviso. As echoed through
Philippine case law, Article 36 was adopted as an ‘acceptable alternative to divorce’
64. Obergefell (n 12) 25–28.

65. ibid 6.
66. Pablo-Gualberto v Gualberto, GR No 154994 (28 June 2005), (2005) 461 SCRA 450, 472.
68. Latin for ‘from board and hearth’: Bryan A Garner (ed), Black’s Law Dictionary (9th edn, West 2009) 96.
69. Garcia v Gracia-Recio, GR No 138322 (2 October 2001), (2001) 366 SCRA 437.
70. Sy v Eufemio, GR No L-30977 (31 January 1972), (1972) 43 SCRA 177, 181.
71. Aguiling-Pangalangan, Marriage and Unmarried Cohabitation (n 7) 81 (dubbing Article 36 ‘Divorce,
Philippine style.’).
72. Family Code (n 22) art 36 (‘A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its solemnization.’).
73. See Marcos v Marcos, GR No 136490 (19 October 2000), (2000) 343 SCRA 755, 757. The Court
asserted that ‘[t]here is no requirement, however, that the respondent should be examined by a physician
or a psychologist as a conditio sine qua non for such declaration’.
74. Kalaw v Fernandez, GR No 166357 (14 January 2015), (2015) 745 SCRA 512, 554.
75. Alicia V Sempio-Diy, Handbook on the Family Code of the Philippines (AV Sempio-Diy 1995) 43.
to avoid ‘the strong opposition that any provision on absolute divorce would
encounter from the Catholic Church’.76
In Santos v Bedia-Santos, the Philippine Supreme Court explained that Article 36 of
the Family Code was a compromise to avoid the strong opposition of ‘the Catholic
sector … to whom the great majority of [the] people belong’.77 Hence, in the
determination of a marriage’s invalidity, the Court ‘must be guided by decisions of
church tribunals which, although not binding on the civil courts, may be given
persuasive effect since [Article 36] was taken from Canon Law’.78
In Republic v Molina, the Philippine Supreme Court unabashedly called for ‘great
respect’ for the interpretations of the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, as Article 36 was derived from Canon 1095 of the
New Code of Canon Law.79 The Court ruled that because the legislative intent was to
‘harmonize our civil laws with the religious faith of our people … great persuasive
weight should be given to decisions of such appellate tribunal’.80 Thus, according to
the Court, ‘what is decreed as canonically invalid should also be decreed civilly void’.81
Further eroding the wall of separation, the Philippine Court in Antonio v Reyes
pronounced that when a marriage had already been annulled by the Catholic Church,
the courts should ‘take [this] into consideration’; otherwise, ‘the rulings of the Catholic
Church on this matter would have diminished persuasive value’.82 Through Malilin v
Jamesolamin, the Court confessed how Article 36 envisages ‘the second paragraph of
Canon 1095[,] which refers to those who suffer from grave lack of discretion of
judgment concerning essential matrimonial rights and obligations’.83
B. Exceptions for the Minority Faith

The breach of the Jeffersonian wall of separation is not limited to Catholicism alone.
The Code of Muslim Personal Laws (CMPL) was enacted as Philippine law in 1977 via
Presidential Decree No 1083. Unlike the Family Code, the CMPL allows for divorce as
a right of both husband and wife where both spouses are Muslim, or where the
husband is Muslim and the couple was married under Islamic rites.84
The CMPL deviates from the lex generalis in many ways. While the Family Code
sets the minimum age of consent for marriage at eighteen for both men and women,85
the CMPL lowers the age requirement, depending on one’s gender. For men to marry,
they must be at least fifteen years old.86 For Muslim women, capacity to marry is
76. Santos v Bedia-Santos, GR No 112019 (4 January 1995), (1995) 240 SCRA 20, 40 (Romero J,
concurring).
77. ibid.
78. ibid 42.
79. Republic v Molina, GR No 108763 (13 February 1997), (1997) 268 SCRA 198, 212.
80. ibid.
81. ibid 213.
82. Antonio v Reyes, GR No 155800 (10 March 2006), (2006) 484 SCRA 353, 384.
83. Mallilin v Jamesolamin, GR No 192718 (18 February 2015), (2015) 751 SCRA 1, 24.
84. CMPL, Presidential Decree No 1083, art 13.
85. Family Code (n 22) art 2; cf art 35(1).
86. CMPL, art 16(1).
10 a s i a n j o u r n a l o f c o m p a r a t i v e l a w
attained upon reaching puberty – which is statutorily presumed to be attained at the

age of fifteen.87 The CMPL also allows females who have attained puberty, and less
than fifteen but not below twelve years of age, to marry upon a petition by a wali
(guardian).88 The betrothal of a minor below the prescribed ages, provided it has been
arranged by the wali, is also permitted. It may be subsequently annulled by either party
provided, inter alia, no voluntary cohabitation had taken place.89
Significantly, the CMPL’s provisions contemplates ‘voluntary cohabitation’ with a
child below twelve years old – a situation penalized under the Revised Penal Code of
the Philippines 1930 (Revised Penal Code) as statutory rape.90 While the CMPL
expressly states that the crime of bigamy does not apply to persons married in
accordance with its provisions,91 it does not provide a blanket exemption of criminal
liability.
Thus, contrary to the characterization in Obergefell, the institution of marriage in
both Philippine lex generalis and lex specialis remains religious. The Family Code has
unapologetically entwined Christian theology in its general law, the single exception to
which is codified through the CMPL – a legal classification evidently based on Islamic
creed. While either institution of marriage is distinct, they are united by a common
thread: religious influence.
iv. freedom of religion: the exception to

the general rule
The Philippines is the only country in the Association of South East Asian Nations
(ASEAN) that explicitly provides for the separation of church and state in its
constitution.92 Yet in that same breath, the 1987 Constitution unapologetically
affords religion a privileged status through tax exemptions93 and an optional
religious education clause for public academic institutions.94 Further, Philippine
constitutions have historically implored the ‘aid of Divine Providence’95 or of the
‘Almighty God’,96 which ‘manifest the State’s respect and recognition of the collective
spirituality of the Filipino’.97 The Philippine Supreme Court itself has transmuted
religious influences into legal fiat under the auspices of benevolent neutrality. The
87. ibid.
88. ibid art 16(2).
89. ibid art 16(3).
90. Revised Penal Code of the Philippines, Act No 3815, art 266-A (1930), as amended by the Anti-Rape Law
of 1997(Republic Act No 8353).
91. CMPL, art 16.
92. Raul C Pangalangan, ‘Keeping the Faith: A Study of Freedom of Thought, Conscience and Religion in
ASEAN, Philippine Report’ (Lecture delivered at the University of the Philippines Law Center, Manila, 29
June 2015).
93. 1987 Constitution, art VI, s 29(2)–(3).
94. Ibid art XIV s 3(3).
95. 1935 Constitution of the Philippines, Preamble; 1973 Constitution of the Philippines, Preamble.
96. 1987 Constitution, Preamble.
97. Valmores v Achacoso, GR No 217453 (19 July 2017). SCRA publication forthcoming.
following section will look at how that purported neutrality has been wielded with
impunity by the courts to breach the wall of separation, and with it, the constitutionally
mandated secularity of the state.
A. Religious Exceptions to the General Rule

In Goldman v Weinberger, the US Supreme Court held that in the absence of a
government regulation based solely on religious motivations, prohibiting a member of
the Jewish faith from wearing a yarmulke while on duty in the Air Force did not violate
the First Amendment.98 Similarly, as held in Employment Division Department of
Human Resources of Oregon v Smith, religious freedoms do not relieve an individual
from complying with the incidental effects of a generally applicable and otherwise valid
government regulation.99 In gist, if regulating the free exercise of religion is but an
accidental effect of law, there is no undue derogation of religious freedoms.100
In Smith, respondents Alfred Leo Smith and Galen Black had their employment
terminated for ingesting peyote, a hallucinogenic drug, at a ceremony of the Native
American Church. Having been dismissed for work-related misconduct, Smith and
Black were denied unemployment benefits, allegedly, in violation of their free exercise
rights. The Court, however, rejected their contention101 on the basis that free exercise
rights do not exempt a person from complying with a valid and neutral law of general
applicability. The Court warned that to hold otherwise would render religious doctrine
‘superior to the law of the land, and in effect, to permit every citizen to become a law
unto himself’.102
The Philippine approach to the interplay of lex generalis and religious freedoms is
greatly different from that in the US. In contrast with Goldman and Smith, the
Philippine case of Victoriano v Elizalde Rope Workers’ Union pronounced that ‘when
general laws conflict with scruples of conscience, exemptions ought to be granted’.103
Similarly, in Ebralinag v Superintendent,104 the Philippine Supreme Court ruled that
the State cannot by law105 compel students to participate in flag-salute ceremonies
98. Goldman v Weinberger (1986) 475 US 503.

99. Employment Division Department of Human Resources of Oregon v Smith (1990) 494 US 872.
100. ibid 878, citing Compare Citizen Publishing Co v United States (1969) 394 US 131, 139, where the Court
stated: ‘If prohibiting the exercise of religion… [is] merely the incidental effect of a generally applicable
and otherwise valid provision, the First Amendment has not been offended.’
101. ibid 876–890; cf Gonzales v O Centro Espírita Beneficente União do Vegetal (2006) 546 US 418. The
Supreme Court unanimously held that under the Religious Freedom Restoration Act of 1993 (RFRA), the
União do Vegetal (UDV), in the sincere practice of religion, may take communion containing an illegal
narcotic. Notably, it was decided in City of Boerne v Flores (1997) 521 US 507 that the RFRA binds the
federal government alone. Hence, in many state courts, Smith remains the controlling case. See also
William C Canby Jr, American Indian Law in a Nut Shell (5th edn, West 2009) 344; W Cole Durham, Jr,
‘Religious Freedom’s Darkling Plain: American and European Responses to the Erosion of a
Fundamental Right’ (International Forum on Law and Religion: The Secular State and Religious
Freedoms, University of the Philippines Law Center, Manila, 3 August 2017).
102. Smith (n 99) 879, citing Reynolds v US (n 8).
103. GR No L-25246 (12 September 1974), (1974) 59 SCRA 54, 75.
104. GR No 95770 (1 March 1993), (1993) 219 SCRA 256.
105. An Act Making Flag Ceremony Compulsory in All Educational Institutions, Republic Act No 1265
(1955).
when doing so would contravene their religious beliefs. Ruel Ebralinag, a member of
the Jehovah’s Witnesses, claimed that to salute the flag was to adore it, hence in
violation of his religious creed: ‘Thou shalt have no other gods before me.’106
The Court ruled for Ebralinag on the rationale that ‘[l]egitimate ends cannot be
pursued by methods which violate fundamental [religious] freedoms’.107 While US
jurisprudence has a similar flag-salute doctrine embodied in West Virginia State Board
of Education v Barnette, it is worth noting that it was grounded on the freedom of
speech clause of the First Amendment,108 distinct from the free exercise basis of the
Ebralinag ruling.
The ecclesiastic exception to the general rule is most evident in Estrada v Escritor,
where the Philippine Supreme Court refrained from administratively disciplining
Soledad Escritor, a court interpreter and a member of the Jehovah’s Witnesses, for
having allegedly engaged in ‘disgraceful and immoral conduct’ in violation of the
Revised Administrative Code.109 Escritor sought exemption, claiming that her
conjugal arrangement – a twenty-year extra-marital union with a man with whom
she had borne a child – was not ‘immoral’ but in conformity with a ‘Declaration of
Pledging Faithfulness’ – a religious ceremony equivalent to a wedding sanctioned by
the Jehovah’s Witnesses, particularly in countries where divorce is not recognized.110
The Court ruled that Escritor could not be disciplined absent a showing that the
State and the judiciary would be undermined if she were given an exemption.111
Effectively, Estrada condoned Escritor’s adulterous relationship – an act that would
otherwise give rise to administrative,112 civil,113 or criminal liability114 – on the ground
of religious belief.
106. King James Version (1995) Exodus 20:3. See also Ebralinag (n 104) 263 (‘Jehovah’s Witnesses admittedly
teach their children not to salute the flag… They feel bound by the Bible’s command to ‘guard ourselves
from idols — 1 John 5:21’[.]’)
107. Ebralinag v Superintendent (29 December 1995), (1995) 251 SCRA 569, 589 (Mendoza J, concurring).
108. West Virginia State Board of Education v Barnette (1943) 319 US 624, 634.
109. Estrada v Escritor, AM No P021651 (4 August 2003), (2003) 408 SCRA 1, 63 (Ynares-Santiago J,
dissenting) citing Administrative Code of 1987, Executive Order No 292 (1987) [Revised Administrative
Code]; see also Banaag v Espeleta, AM No P-11-3011 (29 November 2011), (2011) 661 SCRA 513, 519
(‘Disgraceful and Immoral Conduct … is an act which violates the basic norm of decency, morality and
decorum abhorred and condemned by the society and conduct which is willful, flagrant or shameless, and
which shows a moral indifference’).
110. Marites Dañguilan Vitug and Criselda Yabes, Our Rights, Our Victories: Landmark Cases in the
Supreme Court (Cleverheads Publishing 2011) 55.
111. Estrada (n 109) 81.
112. Sealana-Abbu v Laurenciana-Hurao, AM No P-05-2091 (28 August 2007), (2007) 531 SCRA 289. In
this case, court stenographers were found guilty of disgraceful and immoral conduct for having entered
into an illicit affair. They received the penalty of one-year suspensions without pay with the possibility of
dismissal from the service should they persist in their illegitimate and immoral relationship. See also
Antonio BC Reynes, ‘The Bed & The Bar: Regulating Attorney-Client Sexual Relations in the Philippines’
(2016) 90 Philippine Law Journal 84, 150, citing Garrido v Garrido, AC No 6593 (4 February 2010),
(2010) 611 SCRA 508; Tiong v Florendo, AC No 4428 (12 December 2011), (2011) 662 SCRA 1.
113. See Civil Code of the Philippines, Republic Act No 386, (1949) art 2219 (‘Moral damages may be
recovered in the following and analogous cases… (4) Adultery or concubinage’).
114. Revised Penal Code, art 333.
B. Religious Accommodations in Public Institutions

As held by the US Supreme Court in Abington School District v Schempp115 and Lee v
Weisman,116 prayers hosted by public academic institutions transgress the principle of
separation. The same cannot be said for the Philippine legal system. In Estrada,117 the
Philippine judiciary observed that the Constitution expressly permits forms of religious
entanglement in allowing religion to be taught to children in public schools, so long as
it is without additional cost to the government. However, in Arias v University of the
Philippines,118 a law student challenged his professor’s practice of performing an
ecumenical prayer in class. The Quezon City Regional Trial Court denounced the
professor’s practice as a breach of the wall of separation.
Religious entanglement in public institutions is no novel issue in the Philippines. The
Philippine Supreme Court itself abides by a religious practice in prescribing, pursuant
to its constitutionally enshrined rule-making power,119 a ‘Centennial Prayer for the
Courts’.120 The purportedly ecumenical orison is read by judges in open court,
expressly implores an ‘Almighty God’,121 and is often commenced and proceeded by
the signum crucis (the sign of the cross).
In the recent case of Re: Letter of Tony Q Valenciano,122 in an 11-1 ruling, the
Philippine Supreme Court validated the use of government buildings – for instance, the
basement of the Hall of Justice of Quezon City – as a Roman Catholic chapel, complete
with an offertory table, images of Catholic religious icons, a canopy, and an electric
organ. Tony Q Valenciano wrote a series of letters to the then Chief Justice Reynato S
Puno protesting the practice as a violation of the principle of non-establishment and the
constitutional prohibition against the appropriation of public money or property for
the benefit of a sect, church, denomination, or any other system of religion.123 He
further averred that the holding of masses at the basement of the Hall of Justice showed
that it tended to favour Catholic litigants.
In categorically rejecting Valenciano’s contention, the Court ruled that the
holding of masses within the courts did not violate the separation of church and
state. On the contrary, the collaboration of the church and the court was in fact
‘necessary to ensure that there would be no excessive entanglement’ to begin
with.124 The free exercise of religion having mandated an ‘unconditional tolerance’
115. Abington School District v Schempp (1963) 374 US 203.

116. Lee v Weisman (1992) 505 US 577.
117. Estrada (n 109) 165.
118. Criminal Case No 47696 (Quezon City Regional Trial Court).
119. 1987 Constitution, art VIII s 5(5).
120. Supreme Court Memorandum Circular No 001-2001 (18 April 2001) (Philippines). See also Artemio V
Panganiban Jr, Chief Justice of the Republic of the Philippines Supreme Court, ‘Saving the Constitutional
System’ (Address at the University of Santo Tomas Central Seminary, UST Martyrs’ Hall, Manila, 19
February 2002).
121. ibid.
122. Re: Letter of Tony Q Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon
City, AM No 10-4-19-SC (7 March 2017), (2017) 819 SCRA 313.
123. 1987 Constitution, art VI s 29(2).
124. Re: Letter of Tony Q Valenciano (n 122) 360.
of all religions, one denomination ‘cannot ask for tolerance when [it] refuses to do
the same for others’.125
The Philippine Supreme Court ignored the constitutional mandate of separation
through the logical but callous rationale that religious tolerance abets tolerance. But
what is even more striking is that instead of showing disapproval at a clear case of state
entanglement with religion, the court justified it. The Supreme Court opined that
prohibiting the use of government property for religious purposes would, first, be in
itself a form of excessive entanglement, and second, espouse ‘[s]trict separation, rather
than benevolent neutrality/accommodation, [as] the norm’.126
C. Government Endorsed Religious Holidays

According to County of Allegheny v American Civil Liberties Union,127 which was
decided by the US Supreme Court, religion cannot be the basis of public, state-
proclaimed, holidays. In a complex and fragmented decision, the majority held that
while the government may acknowledge Christmas as a cultural phenomenon, it may
not celebrate it as a Christian holy day.128 Historical practice may not legitimize the use
of crèche or Christmas displays, which would evidence state fidelity to a particular
religion.129 Justice O’Connor, in a concurrence joined in part by Justices Brennan and
Stevens, stated that these signs merely recognize Christmas as part of the winter holiday
season that had attained a secular status in society.130 In a partial concurrence and
dissent by Justice Kennedy, it was said that mere passive and symbolic recognition by
the government was unlikely to present a realistic risk of establishment131 – a ratio
adopted in the earlier cases of Lynch v Donnelly,132 regarding a crèche holiday display,
and Marsch v Chambers,133 concerning the employment of a legislative chaplain.
Philippine courts have consistently subscribed to the reasoning in the Allegheny
minority opinions. Similar to Re: Letter of Tony Q Valenciano discussed above, the
Supreme Court pronounced in Garces v Estenzo134 that the use of government-raised
funds for the purchase of a wooden image of Valencia’s patron saint, San Vicente
Ferrer, for the local barrio fiesta violated neither the principle of non-establishment nor
the constitutional prohibition on the appropriation of public money ‘directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion’.135 The effigy having been purchased to celebrate the
barrio fiesta honouring the patron saint (instead of favouring any particular religion
125. ibid 319.

126. ibid.
127. (1989) 492 US 573.
128. ibid 601.
129. ibid 603.
130. ibid 616.
131. ibid 664 (Kennedy J, concurring in part and dissenting in part, joined by Rehnquist CJ, and White and
Scalia JJ).
132. (1984) 465 US 668.
133. (1983) 463 US 783.
134. GR No L-53487 (25 May 1981), (1981) 104 SCRA 510.
135. 1973 Constitution of the Philippines, art VII, s 18(2), now 1987 Constitution, art VI, s 29(2).
nor interfering with religious matters), the use of public funds could not be barred.136
For the Court, the celebration was a socioreligious affair – an ingrained tradition in
rural communities.
In doing so, Garces attempts to recast religious celebration in secular light. This
ratio is comparable to the European Court of Human Rights’ reasoning in Lautsi v
Italy,137 which recognized that ‘in countries of Christian tradition, Christianity enjoys
a special social legitimacy’.138 Hence, as in the Philippines, ‘Christian symbols may
legitimately relish greater visibility in government institutions’.139
D. Religious Expression as a Highly Protected Speech

The Philippines’ adoption of American constitutional tradition is not isolated to
religious freedoms alone. While under Spanish rule the right of freedom of expression
remained a foreign notion, it was after the Philippines was ceded to the US that the right
to free speech was guaranteed through President McKinley’s Instruction to the second
Philippine Commission.140 The doctrine of free expression was ‘lifted bodily from the
Federal Constitution of the United States’141 and reproduced in all Philippine
constitutions, including the current 1987 Constitution.142
The rights to free expression and religion encompass proselytization. In Cantwell v
Connecticut,143 the US Supreme Court ruled that absent a statute narrowly drawn to
punish specific conduct as a clear and present danger, religious communication fell
within the realm of protected speech. In Cohen v California, the court ruled that even
words which invoke tumult, discord, and offence are protected, these being ‘but
necessary side effects’ of free speech.144 Indeed, the right of free expression espouses
‘the principle of free thought – not free thought for those who agree with us, but
freedom for the thought that we hate’.145
The Philippines adopts the Holmesian model of free expression, albeit
inconsistently. In the case of Iglesia ni Cristo (INC) v Court of Appeals, Board of
Review for Motion Pictures and Television (now MTRCB) and Mendez,146 the
Philippine Supreme Court allowed the airing of televangelist episodes containing
controversial statements aimed against the Catholic Church. The Court opined that the
136. Garces (n 134) 518.

137. App no 30814/06 (ECtHR (Grand Chamber), 18 March 2011).
138. Grégor Puppinck, ‘The Case of Lautsi v. Italy: A Synthesis’ (2012) Brigham Young University Law
Review 873, 917.
139. ibid; cf Re: Letter of Tony Q Valenciano (n 122).
140. Joaquin G Bernas, Constitutional Rights and Social Demands: Notes and Cases Part II (Rex Book Store
2004) 284.
141. ibid.
142. ibid, citing 1987 Constitution, art III, s 4 (‘No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.’).
143. (1940) 310 US 296.
144. Cohen v California (1971) 403 US 15, 25.
145. United States v Schwimmer (1929) 279 US 644, 655 (Holmes J, dissenting).
146. GR No 119673 (26 July 1996), (1996) 259 SCRA 529.
‘bedrock of freedom of religion is freedom of thought … [hence] the marketplace of

ideas demands that speech should be met by more speech’.147 With the establishment
clause of the Constitution having prohibited any bias towards or against religion, the
State enjoys no option but neutrality. The MTRCB cannot thus ‘squelch’ the speech of
the INC ‘simply because it attacks other religions’, even if said religion happens to be
the pre-dominant faith in the country.148
The constitutional guarantee of free expression notwithstanding, the Philippines
criminalizes acts against religious worship.149 It is also prohibited under Article 133 of
the Revised Penal Code for ‘anyone who, in a place devoted to religious worship or
during the celebration of any religious ceremony [to] perform acts notoriously
offensive to the feelings of the faithful’.150 Pursuant to this law, ridicule of religious
dogma or ritual is a ground for criminal liability.151 Simple remarks on certain beliefs
as anti-Christ or that the Pope is the commander of Satan are notoriously
offensive to the feelings of the faithful and are deemed criminal acts under Philippine
law.152
In People v Celdran,153 the defendant, a celebrity tour-guide and media
personality, was prosecuted under Article 133 for staging a protest inside the
Manila Cathedral against the church’s meddling in government affairs. During the
ecumenical prayer, Celdran, while dressed as the Filipino national hero Jose Rizal,
paraded a placard with the word ‘DAMASO’ before the attending Cardinal and
bishops. The sign referred to ‘Padre Damaso’, the antagonist Catholic priest in Jose
Rizal’s novel, Noli Me Tangere154 – a celebrated and familiar reference for students
enrolled in Philippine academic institutions.155 Ultimately, the Court found Celdran
guilty beyond reasonable doubt of offending religious feelings and subsequently
sentenced him to a maximum prison sentence of a year, a month, and eleven
days.156
Professor Florin T Hilbay, former Solicitor General of the Philippines, has criticized
Article 133 as ‘patently unconstitutional because it smacks of viewpoint
147. ibid 547.

148. ibid.
149. Revised Penal Code, art 132.
150. ibid, art 133.
151. People v Baes, GR No L-46000 (25 May 1939), (1939) 68 Phil 203.
152. Luis B Reyes, The Revised Penal Code: Criminal Law (18th edn, Rex Book Store 2012) 81, citing People
v Mandoriao, Jr, CA 51 OG 4619 (Court of Appeals of the Republic of the Philippines).
153. People v Celdran y Pamintuan, Criminal Case No 387435-SA, 14 December 2012 (Metropolitan Trial
Court).
154. Jose Rizal, Noli Me Tangere [Don’t Touch Me] (Ma Soledad Lacson-Locsin tr, Raul L Locsin ed,
University of Hawai’i Press 1996).
155. See An Act to Include in the Curricula of All Public and Private Schools, Colleges and Universities Courses
on the Life, Works and Writings of Jose Rizal, Particularly His Novels Noli Me Tangere and El
Filibusterismo, Authorizing the Printing and Distribution Thereof, and for Other Purposes, Republic Act
No 1425 (1956).
156. Celdran (n 153) 7.
discrimination’.157 Likening the law to lèse-majesté – a ‘set of criminal offenses meant

to sanction disrespect toward the crown or its agents’158 – Hilbay opposes government
use of the criminal justice system to silence public criticism against certain institutions,
ideas, and practices, which would violate constitutional guarantees of free expression
and secularism.159
The contrast between Celdran and Iglesia ni Cristo evidences the dichotomy
between the right of free expression in general and the right of religious expression
per se, with the latter enjoying greater protection. In Iglesia ni Cristo, the
congregation’s ‘attacks’ on another religion were justified on principles of free
thought – that ‘the ultimate good desired is better reached by the free trade in ideas’,160
that ‘the remedy against bad theology is better theology’, and that ‘speech should be
met by more speech’.161 On the other hand, in Celdran, which concerned the crime of
offending religious feelings, the marketplace of ideas was promptly abandoned. While
the content-neutral considerations of Article 133 should not be arbitrarily dispensed
with,162 the legal dichotomy is made clear: while offensive utterances are recognized as
part and parcel of a free and robust debate,163 they are actionable when made against
religious feelings.
E. Juridical Personality of Majority and Minority Faiths

In the US, the church’s corporate status is a mere concession of the state. It is not
recognized as an independent society established by divine law.164 On the other hand,
Philippine courts have declared as early as 1907 that the Catholic Church has both a
moral and juridical status.165 Furthermore, in Long v Basa, the Philippine Supreme
Court ruled that a corporation sole – a religious corporate body166 – was of a peculiar
nature and based on common religious or spiritual belief.167
The recognition given to the corporation sole is no trivial matter. In the case of
Register of Deeds v Ung Siu Si Temple,168 involving an unincorporated Buddhist
organization composed of foreign nationals, the Court ruled that constitutional
prohibitions on foreign landholding169 applied to the Ung Siu Si Temple because
157. Florin T Hilbay, ‘Offending Religious Feelings’ Philippine Daily Inquirer (Manila, 31 January 2013)
< http://opinion.inquirer.net/45975/offending-religious-feelings > accessed 18 February 2018.
158. ibid; cf People v Perfector, GR No L-18463 (4 October 1922).
159. ibid.
160. Abrams v United States (1919) 250 US 616, 630 (Holmes J, dissenting).
161. Iglesia ni Cristo (n 146) 547.
162. Reyes (n 152) 80. (‘The acts complained of [must be] performed (1) in a place devoted to religious
worship, or (2) during the celebration of any religious ceremony.’)
163. See Cohen v California (1971) 403 US 15, 25; cf Snyder v Phelps (2011) 562 US 443.
164. Mormon Church v United States (1890) 136 US 1.
165. Barlin v Ramirez, GR No L-2832 (24 November 1906), (1906) 7 Phil 41.
166. See Batas Pambansa Bilang [National Assembly Enactment] 68, The Corporation Code of the Philippines
(1980), s 109.
167. GR Nos 134963–64 (27 September 2001), (2001) 366 SCRA 113.
168. GR No L-6776 (21 May 1955), (1955) 97 Phil 58.
169. 1987 Constitution, art XII, s 1.
‘the spirit of the Constitution demands that in the absence of capital stock, the
controlling membership should be composed of Filipino citizens’.170 However, in
Roman Catholic Apostolic Administrator of Davao, Inc v Register of Deeds,
which concerned a Catholic corporation sole comprising only Msgr Thibault, a
Canadian citizen, the Court ruled that constitutional mandates against foreign
landholdings were inapplicable because Msgr Thibault was a mere ‘administrator
of the “temporalities” or properties titled in [the Sole’s] name’, and that the
constitutional provisions ‘could not have intended to curtail the Roman Catholic
faith’.171
The aforementioned cases show that although religion is generally given a
privileged status in the Philippines, not all religions are treated similarly. While the
Supreme Court liberally construed constitutional mandates in Roman Catholic
Apostolic Administrator of Davao, a case involving the pre-dominant religion, a
strict construction was adopted in Ung Siu Si Temple, which concerned a
minority faith.
v. union, dissolution, consummation:

turning of the tide?
Philippine law has historically breached the wall of separation. It may be argued,
however, that the disentanglement of canon and civil law slowly ensues. Recently, it
appears that the Philippines has mustered a newfound courage in taking positions
contrary to those of pre-dominant Christian theology. This can be observed in three
separate yet intertwined issues: same-sex relations by way of civil partnerships,
marriage dissolution, and reproductive health.
A. Civil Partnerships: Separate but Equal

Pending before the Philippine Congress are House Bill No (HB) 6595 (An Act
Recognizing the Civil Partnership of Couples Providing for their Rights and
Obligations) and HB 3179 (An Act Governing Property Ownership of Couples of
Same Sex Living Together). HB 6595 seeks to remedy the Philippines, failure to provide
‘some of the most basic civil rights to couples who are not eligible for marriage under
the law[,] [a] large part of [whom are members of] the Lesbian [,] Gay, Bisexual and
Transgender (LGBT) community’ who ‘by reason of their sexual orientation and who
they love… are excluded from entering into legally recognized and protected
unions’.172 Deviating from religious tradition, the bill proposes to allow couples,
regardless of sex, to enter into civil partnerships enjoying the same rights, benefits, and
responsibilities of marriage.173
170. Ung Siu Si Temple (n 168) 61.

171. GR No L-8451 (20 December 1957), (1957) 102 Phil 596, 597.
172. House Bill No 6595, An Act Recognizing the Civil Partnership of Couples, Providing for Their Rights and
Obligations (HB 6595) (10 October 2017) Explanatory Note, 1.
173. ibid 2.
On the other hand, HB 3179 seeks to offer legal recognition and protection to the
property relations of same-sex partners. Similar to HB 6595, the novelty of HB 3179 is
found in its departure from the religious sentiment reflected in existing Philippine
family law.174 While the proposed statutes are undoubtedly progressive efforts worth
celebrating, they have done little to quell the marriage equality debate. Rather than
serving as a panacea to the Philippines’ social ills, these bills are merely ‘band-aid’
solutions to the Filipinos’ repudiation of the LGBT community.
HB 3179’s principal author, Representative Edcel B Lagman, explains that because
the church holds a degree of influence in state affairs, gay marriage has yet to find a
place in the Philippine legal system. Thus, rather than providing for a right to marriage,
HB 3179 proposes a sui generis property regime for two persons of the same sex
cohabiting with each other. Representative Lagman concludes: ‘after all, they should
also be treated equally’.175
Representative Lagman echoes the reality embedded in law and jurisprudence:
notwithstanding the constitutionally mandated separation of church and state,
‘religion has transcended mere rubric and has permeated into every sphere of human
undertaking’.176 Congress thus seeks to circumvent religious considerations altogether
by providing the same bundle of rights that come with marriage for a separate and
distinct institution – the civil partnership. On its face, these bills deserve scant criticism.
If the same rights of marriage are afforded to extra-marital same-sex relations, then the
difference between the legal status of heterosexual and same-sex couples would lie in
terminology rather than substantive right. After all, what’s in a name?
In the author’s opinion: everything. The issues entrenched in the marriage equality
debate go beyond legal niceties and into the value ‘We the People’ give to same-sex
relations, ie, ‘whether same-sex unions are worthy of honour and recognition by the
community – whether they fulfil the purpose of the social institution of marriage’.177
Determining the rights of same-sex couples to legally enter into marriage is ultimately
about the equal status of their person and the validity of their claim.178
But the issue of same-sex unions is not solely about de jure recognition, but also de
facto equality. This the Philippines fails to address. HBs 3179 and 6595 profess to level
the playing field by granting the rights of marriage to those who do not enjoy the right
to marriage. The bills purport to treat heterosexual and same-sex couples as ‘separate
but equal’179 creatures. But upon closer scrutiny, contrary to securing equality in law,
they reinforce secular biases. The bills restate religious dogma: same-sex couples are
174. House Bill No 3179, An Act Governing Property Ownership of Couples of Same Sex Living Together (17
October 2013) (HB 3179).
175. ibid Explanatory Note, 1.
176. Valmores (n 97).
177. Michael J Sandel, Justice: What’s the Right Thing to Do? (Farrar, Straus and Giroux 2010) 254.
178. See also Ang Ladlad (n 41) (Puno CJ, separately concurring) (‘it would not be difficult to conclude that
gay persons are entitled to heightened constitutional protection [under the equal protection clause of the
1987 constitution]’). The author agrees with that view, but for purposes of space will focus solely on
religious considerations.
179. See generally Plessy v Ferguson (1896) 163 US 537, 540.
unworthy of the legal institution of marriage. They are ‘separate’ because they are
‘unequal’.
That inequality is inherent to the institution of civil partnerships as illustrated by HB
6595 itself. While the bill seeks to afford same-sex couples ‘[a]ll benefits and
protections as are granted to spouses in a marriage under existing laws’,180 it demands
more from aspiring civil partners than from heterosexual spouses-to-be. For example,
Section 5(b) of the proposed legislation provides for a residency requirement before the
applicant same-sex couple may avail of the bill’s benefits. The civil partnership would
be valid only if the parties have shared ‘a common domicile for a minimum of two (2)
uninterrupted years at the time when the civil partnership license is applied for, as
supported by competent evidence’.181 Further, the relationship must be ‘publicly
known’.182
Traditional marriage under the Family Code is not subjected to these pre-requisites.
Article 2 of the Family Code but requires ‘a man and a woman’183 who have obtained a
valid marriage license184 to have the legal capacity to enter into marriage185 and to
freely consent thereto in the presence of a duly authorized186 solemnizing officer187 and
at least two witnesses of legal age.188
While HBs 3179 and 6595 seek to afford same-sex couples the same rights of
marriage, it restricts the right to marriage to its legal, traditional, and religious
definition: as a bond between a man and a woman.189 What is more, they impose upon
same-sex couples stricter pre-requisites than heterosexual partners for the enjoyment of
the same rights. The legal recognition of same-sex partnerships is thus not the
abandonment of canon law; rather, it is ratification.
B. Marriage Dissolution, Church Annulments: Divorce in Sheep’s Clothing

The Philippines is the only state in the world apart from the Vatican that does not allow
for absolute divorce.190 Instead, the Family Code only allows for relative divorce by
way of legal separation191 and for de facto divorce through Article 36 of the Family
Code.192 The Philippine Supreme Court has openly recognized the scriptural bases of
the latter proviso, Article 36 having been adopted to avoid the ‘strong opposition that
any provision on absolute divorce would encounter from the Catholic Church’.193
180. HB 6595, s 11(a).

181. ibid s 5(b).
182. ibid s 5(c).
184. ibid art 3(2).
185. ibid art 2(1).
186. ibid art 3(1).
187. ibid art 2(2).
188. ibid art 3(3).
189. ibid art. 1. See also Black’s Law Dictionary (n 68) 96, 1533.
190. Aguiling-Pangalangan, Marriage and Unmarried Cohabitation (n 7) 248.
192. ibid art 36.
193. Santos (n 76) 40.
One might argue, however, that a divorce-free Philippines may soon be a thing of the
past. In a landmark effort, members of Congress have proposed three house bills – HB
1062, HB 1629, and HB 6027.194 But like Article 36 of the Family Code, none of these
bills seek to directly incorporate divorce per se within Philippine jurisdiction. Rather,
the bills attempt to juridify a ‘disguised divorce’ under the auspices of ‘marriage
annulment’ or ‘marriage dissolution’.195
While HBs 1062 and 6027 invoke grounds of public policy,196 HB 1629 openly
adopts religious rationale by attempting to effect ‘divorce’ by legally recognizing
church-ordained annulments and dissolutions. Section 1 of HB 1629 provides that
marriages ‘legally solemnized by a priest, minister, imam, rabbi, or presiding elder of
an established church or religion in the Philippines’ may be subsequently ‘annulled’ or
‘dissolved’ by ‘said church or religion’ and ‘be given full force and effect in the
Philippines’. The bill’s principal sponsor Gweondolyn F Garcia explains:
… if the marriage, insofar as the contracting parties are concerned, is validated by the laws
of the Church, then it necessarily follows that by the same laws, such marriage can also be
invalidated or annulled.
The law recognizes as valid a marriage solemnized in accordance with the laws of the
church. In other words, the State respects the laws of the church. To give full force and
effect to this principle of State recognition of the law of the church, it is but proper, if not
logical that the state must also respect the annulment of a marriage that results from
application of church laws.197
As observed in an expert opinion by the University of the Philippines Institute of

Human Rights, ‘giving automatic recognition to an annulment decree issued by [any]
one church will violate the doctrine of separation of church and state’.198 Distinct from
the divorce laws of foreign nations, HB 1629 does not attempt to legalize absolute
divorce – it hopes to give legal effect to canonical marital dissolutions. Likewise, similar
to Article 36 of the Family Code, HBs 1062 and 6027 reflect religious consideration199
by proposing a divorce in sheep’s clothing – an adamant refusal to call a spade a
spade.200 Thus, in its attempt to modernize the Family Code, Congress does not break
194. House Bill No 1062, An Act Amending Title I, Chapter 3, of Executive Order No 209, Otherwise Known
as the Family Code of the Philippines, Prescribing Additional Ground (sic) for Annulment (5 July 2010)
(HB 1062); House Bill No 6027, An Act Providing for Grounds for the Dissolution of a Marriage (24 July
2017) (HB 6027); and House Bill No 1629, An Act Legalizing Church Annulment or Dissolution of
Certain Marriages and for Other Purposes (18 July 2016) (HB 1629).
195. Elizabeth Aguiling-Pangalangan, ‘Expert Opinion Communicated to the House of Representatives
Committee on Population and Family Relations’ (18th Congress, 16 February 2018), 2.
196. See HB 1062, Explanatory Note, 1 and HB 6027, Explanatory Note, 1.
197. HB 1629, Explanatory Note, 1.
198. Aguiling-Pangalangan, ‘Expert Opinion’ (n 195) 2.
199. Santos (n 76).
200. Bea Cupin, ‘Alvarez says option for dissolution ‘makes marriage stronger” (Rappler, 24 July 2017)
< www.rappler.com/nation/176530-sona-2017-alvarez-dissolution-marriage > accessed 19 July 2018.
When asked why he preferred a ‘dissolution of marriage’ over a divorce law, Speaker of the House of
Representatives Panteleon Alvarez said that divorce would be ‘too complicated’: ibid.
away from the religious underpinning of Philippine law. On the contrary, it

embraces it.
C. The Secular State of Reproductive Health

After fourteen years of debates and delays due to resistance by the Catholic clergy, the
Philippine Congress passed the Reproductive Health Act of 2012 (RH Law).201
Catholic clergy and conservative legislators campaigned against its passing on the
ground that the use of artificial methods of contraception was a ‘direct assault and
violation of [Philippine] religious belief’.202 Ironically, the law’s naysayers claimed that
Congress could not ‘quibble or trifle with matters of faith… against the fundamental
Catholic doctrines, [and] the strong beliefs of the majority of Filipinos born and raised
in a Catholic environment’.203
The RH Law was immediately challenged before the Supreme Court in Imbong v
Ochoa.204 After long and agonizing debates, the Court eventually affirmed the law’s
constitutionality, recognizing that the ‘jurisdiction of the Court extend[s] only to public
and secular morality’ and not ‘one’s dogma or belief … ecclesiastical matters [falling]
outside the province of the civil courts’.205
The foregoing illustrates a rejuvenation of the non-establishment doctrine in the
Philippines. Yet, notwithstanding Imbong’s secular approach to the intimate matter of
reproductive health in the marital bed, jurisprudence has yet to take a similar stance
regarding the institution of marriage. Likewise, even Congress’ attempts to modernize
Philippine family laws through the incorporation of ‘marriage dissolution’ remain
rooted in religious considerations. In similar vein, civil partnerships do not amount to
the abandonment of canon law. Rather, the proposal would carve out a separate and
distinct legal relationship, leaving the traditional religious institution unscathed.
Given the seminal role religion plays in Philippine society, particularly on the subject
of marriage as a legal institution, the compatibility of Obergefell’s secular notion of
marriage with the Philippine socio-political landscape remains to be seen. The Falcis
Petition thus faces an uphill battle against decades of jurisprudence kowtowing to the
clergy and a majoritarian society that fails to distinguish between popular religious
opinion and secular culture.
vi. recasting religious freedoms for marriage

equality: revisiting the FALCIS PETITION
A comparison of Philippine and US case law reveals that while both jurisdictions
adhere to religious freedoms through the doctrine of separation, the two diverge as to
201. The Responsible Parenthood and Reproductive Health Act of 2012, Republic Act No 10354 (2012).
202. Congressional Record, House of Representatives, 14th Congress, 2nd Regular Session, 23 September
2008, vol 2 no 21, 31, available at < www.congress.gov.ph/legisdocs/congrec/14th/2nd/14C_2RS-21.
pdf > accessed 29 June 2018.
203. ibid.
204. GR No 204819 (8 April 2014), (2014) 721 SCRA 146.
205. ibid 332.
the degree of separation required. Philippine law has strayed from the wall of strict
separation, and instead abides by the principle of benevolent neutrality which allows
government support of religion so long as it does not discriminate for or against other
faiths. In doing so, however, the Philippines has struggled to distinguish neutral
government action from excessive state entanglement.
The doctrinal nuances of these jurisdictions are created and reinforced by factual
disparities. First, unlike US paradigms, the Philippines operates under a hybrid
common law-civil law system206 – the latter quality systemically reflecting deeply
ingrained Christian values.207 Second, the all-pervasive presence of the Catholic
Church with a membership of more than 80 per cent of the Philippine population has
conflated majoritarian religious belief with secular Philippine culture – a consideration
absent in the pluralist US context. Third, the ‘excessive entanglement’ proscribed in US
law is inevitable in the Philippines. The church and the state have reached beyond their
traditional domains of temple and courtroom, and are now both deeply embedded in
the social sphere. The functions of the state have also expanded beyond their usual
responsibilities such as fire prevention and policing,208 and now extend to basic social
needs like health and education.209 On the other hand, religious congregations remain
a powerful social and political force.210 The Roman Catholic Church, through the late
Manila Archbishop Jaime Cardinal Sin, played a pivotal role in the People Power
uprisings of 1986 and 2001. Non-Catholic groups, such as the Iglesia ni Cristo and El
Shaddai, have as well flexed their political muscle by adopting official electoral
candidates and delivering a solid ‘bloc vote’.211
Notwithstanding an equal opportunity to breach the wall of separation, this does
not necessarily mean that religious sectors in the Philippines are treated equally. As a
comparison of Roman Catholic Apostolic Administrator of Davao with Ung Siu Si
Temple reveals, a more liberal interpretation of the law was used when dealing with a
Christian organization as compared to a minority faith. But, as seen through the
CMPL, the state has likewise protected the minority Islamic faith by disregarding the
non-establishment clause and codifying it into law. Effectively, what was originally
contemplated to be a wall of separation is now one of relative impermeability –
prohibiting state interference in religious matters, but permitting religious influences to
seep through the cracks of the Jeffersonian Wall under the veneer of Philippine
culture.212
Considerations of religious freedom bear heavy implications for the marriage
equality movement. Obergefell secularized marriage by accepting its religious
206. Tecson v Commission on Elections, GR No 161434 (3 March 2004), (2004) 424 SCRA 277.
207. Pacifico Agabin, ‘LGBT Rights Under the 1987 Constitution’ (Lecture delivered at the University of the
Philippines Malcolm Hall, Manila 8 April 2016).
208. National League of Cities v Usery (1976) 426 US 833, 850.
209. Pangalangan, ‘Keeping the Faith’ (n 92).
210. Pangalangan, ‘Country Reports: Philippines’ (n 14) 403–404.
211. ibid. See also Ma Ceres P Doyo, ‘INC “thinking” members to defy group’s practice of bloc voting’
Philippine Daily Inquirer (Manila, 14 December 2015) < http://newsinfo.inquirer.net/747390/inc-
thinking-members-to-defy-groups-practice-of-bloc-voting > accessed 18 February 2018.
212. Garces (n 134).
character as an antiquated notion. The US Supreme Court acknowledged that although

marriage remains ‘sacred to those who live by their religions’, it likewise ‘offers unique
fulfilment to those who find meaning in the secular realm’.213
The ‘history of marriage is one of both continuity and change’214 in the US, but the
same cannot be said for the Philippines. In both its lex generalis and lex specialis,
Philippine law continues to recognize the institution of marriage as a religious bond.
Indeed, while the former has been shaped by Roman Catholicism, the latter
unapologetically codifies Islamic precepts through the CMPL.
Though religious freedoms in the Philippines have departed from American
doctrine, this is not to say that the two respective states’ approaches are categorically
distinct. Given a choice between maintaining the principle of separation at the expense
of religious freedoms on one hand or ruling in favour of religion at the cost of
breaching the Jeffersonian wall on the other, both jurisdictions choose to err on the side
of individual freedoms.215 Philippine courts have taken – at best – a cautious approach
to religion, reluctant to take a stance contrary to religious opinion purportedly out of
deference to the free exercise of religion.216
The Falcis Petition attempts to use this approach, albeit on the eleventh-hour,
by pointing to MCC and LCCI members as examples of ‘individuals belonging
to religious denominations that believe in same-sex marriage’ and are therefore ‘denied
of the right to found a family in accordance with their religious convictions’.217
Though innovative, the petition is found wanting for both procedural and substantive
reasons.
A. Procedural Errors: Religious Freedoms for Whom?

Falcis fails to establish a factual foundation that would trigger the Free Exercise Clause
of the constitution. Of the sects expressly listed in the Philippine census of 2010,218 not
one congregation officially celebrates or recognizes same-sex marriages.219 Arguing
that the veracity of faith does not hinge upon numbers, Falcis points to the practice of

214. ibid 6.
215. See Laurence H Tribe, American Constitutional Law (3rd edn, Foundation Press 2000) 1201 (arguing
that the ‘free exercise principle should be dominant in any conflict with the anti-establishment principle’).
cf Estrada (n 109).
216. Congressional Record (n 202) 30–31.
218. Philippine Statistics Authority (n 18).
219. See eg Philippine Council of Evangelical Churches (PCEC), ‘Philippine Evangelicals Support Biblical
Marriage’ (PCEC, 8 July 2015) < http://pcec.org.ph/2015/07/08/philippine-evangelicals-support-
biblical-marriage/ > accessed 7 July 2018; Oscar V Cruz, ‘Same Sex “Marriage”’ (CBCP News)
< www.cbcpnews.com/cbcpnews/?p=286 > accessed 5 September 2017; ‘Have you heard about the
Church Of Christ?’ (Iglesia ni Cristo) < https://incmedia.org/have-you-heard-about-the-church-of-
christ/ > accessed 7 July 2018; ‘Homosexuality. What does the Bible say about homosexuality and
homosexual acts?’ (Iglesia ni Cristo) < https://incmedia.org/homosexuality-2/ > accessed 7 July 2018;
Jehovah’s Witnesses, ‘Does the Bible Comment on Same-Sex Marriages?’ (JW.org, 2018) < www.jw.org/
en/bible-teachings/questions/same-sex-marriage-bible-view/ > accessed 20 September 2017; Statement
by Karmen Sayas, Administrative Secretary for the Iglesia Filipina Independiente Aglipay (Personal
Communication, 20 September 2017); Statement of Elias Marcelo, Youth Leader of the Seventh Day
Baptist Church (Personal Communication, 20 September 2017); Statement of Neneng Bautista,
two minority religions of a generous estimate of 150 followers220 – a membership of

about 0.00000163 per cent of the Philippine population221 – to establish a free exercise
claim for same-sex marriages. But this only leads to a greater faux pas: Falcis claims a
personal injury.
Assuming, for the purpose of argument, that the Court were to recognize that
individuals belonging to the MCC and LCCI creeds are ‘denied of the right to found a
family in accordance with their religious convictions’,222 Falcis established the
prospect of neither perk nor prejudice from a court ruling on the ground of religious
freedoms. After all, his claims to legal standing stem from a ‘personal stake’ in the case
because his chances to enter long-term monogamous same-sex relationships is
impaired.223 Nowhere in the pleading does Falcis claim to be a member of these
congregations, yet as a last ditch effort, he conveniently invokes the rights of
‘individuals belonging to religious denominations that believe in same-sex marriage’
for his benefit.224 Falcis – an alleged atheist225 – thus attempts to free-ride on the
religious beliefs of others.
This glaring error casts serious doubt on Falcis’ cause. Again, Falcis does not seek to
represent the group of members who may be injured by the absence of law recognizing
same-sex marriages in a class suit;226 he merely hopes to vindicate a phantom injury –
the alleged impairment of his ability to enter into long-term monogamous same-sex
relationships.227 As observed by the OSG, Falcis’ claim to standing is a non sequitur
devoid of any evidence of an ‘injury in fact’, and ‘demeans’ the very people Falcis
purports to protect.228
B. Substantive Mischaracterization: A Lack of Deprivation

Setting these procedural lapses aside, the Falcis Petition encounters its greatest
substantive hurdle: it fails to establish how the free exercise rights of MCC and LCCI
members were deprived229 by the contested provisions of the Family Code. Falcis
Administrative Secretary of the United Church of Christ in the Philippines (Personal Communication, 20
September 2017).
220. Rev Crescencio ‘Ceejay’ Agbayani Jr (n 46); Statement by Jack Quimbo, Church Administrator of the
Open Table Community of the Metropolitan Community Church (Personal Communication, 20
September 2017).
221. See Philippine Statistics Authority (n 18) 17.
223. ibid para 30.
224. ibid para 86.
225. Andy Uybuco, ‘Uybuco: Meeting Jesus’ SunStar Philippines (Cebu, 26 February 2016) < www.sunstar.
com.ph/article/60253/ > accessed 7 September 2017.
226. See Banda v Ermita, GR No 166620 (20 April 2010), (2010) 618 SCRA 488 (‘From the foregoing
definition, the requisites of a class suit are: 1) the subject matter of controversy is one of common or
general interest to many persons; 2) the parties affected are so numerous that it is impracticable to bring
them all to court; and 3) the parties bringing the class suit are sufficiently numerous or representative of
the class and can fully protect the interests of all concerned.’).
227. Falcis Petition (n 13) para 30, cf Comment of the OSG (n 38) para 13.
228. Comment of the OSG (n 38) para 13–14.
229. 1987 Constitution, art III, s 1 (‘No person shall be deprived of life, liberty, or property without due
process of law’).
claims that reserving state-sanctioned marriages to heterosexual couples alone is

contrary to Section 3(1) Article XV of the 1987 Constitution because it ‘prohibits
same-sex couples from founding a family through the vehicle of marriage in
accordance with their religious convictions’.230 This claim is highly questionable for
failing to consider: (1) the proper subject of the right claimed; and (2) the concomitant
duty borne by the state.
As to the former, a plain reading of the Constitution shows that the right ‘to found a
family in accordance with their religious convictions’ belongs to a particular subject –
the ‘spouses’.231 Notice the paradox: Falcis claims that by withholding the legal status
from same-sex marriages, members of the MCC and LCCI are denied the
constitutional right to raise a family in accordance with their religious convictions.
Yet that is a right that, in the first place, belongs to spouses, a term which has
historically and legally referred to a relationship ‘between a man and a woman’.232
Effectively, Falcis places the cart before the horse. He seeks a legal status for same-sex
marriages, but in that same breath, he attempts to found that claim on a right hinged on
the very status that is sought.
But perhaps it may be argued that as far as the MCC and LCCI are concerned, the
marriage celebrators are indeed spouses, albeit from a religious perspective rather than
its traditional legal sense. Even if through some form of legal gymnastics, the
unqualified233 use of the word ‘spouse’ in Section 3(1) Article XV of the 1987
Constitution could and should be stretched to include all marriages, whether civil or
otherwise, the Falcis Petition still does not withstand legal scrutiny.
Again, the petitioner claims that individuals whose religious denominations approve
of same-sex marriage are denied the right to found a family in accordance with their
religious beliefs.234 However, even assuming that said right was enjoyed by spousal
relations recognized by the MCC or LCCI, Falcis fails to establish how that right was
indeed violated. On the contrary, these religious sects are cited in the petition precisely
because they successfully celebrated same-sex marriages.
Absent any form of state action depriving their respective congregations of religious
freedoms, the Falcis Petition is its own rebuttal. It must be emphasized that Philippine
jurisprudence subscribes to state action-only liability.235 As in the US legal system,236
the Philippine Constitution presumes ‘[o]ne’s liberty, not to mention one’s dignity, was
something to be shielded from – not provided by – the State’.237 The state being bound

231. 1987 Constitution, art XV s 3(1) (‘The State shall defend: (1) … right of spouses to found a family in
accordance with their religious convictions’).
232. Family Code (n 22) art 1. See also Black’s Law Dictionary (n 68) 96, 1533.
233. See eg Yu v Samson-Tatad, GR No 170979 (9 February 2011), (2011) 642 SCRA 421 (‘Ubi lex non
distinguit nec nos distinguere debemos.’).
235. Record of the Constitutional Commission: Proceedings and Debates, No 32, 17 July 1986 (Sponsorship
Remarks by Commissioner Father Joaquin G Bernas (Society of Jesus)) < www.officialgazette.gov.ph/
1986/07/17/r-c-c-no-32-thursday-july-17-1986/ > accessed 30 June 2018.
236. See DeShaney v Winnebago County Dept of Social Services (1989) 489 US 189, 196–97.
237. Obergefell (n 12) 17 (Thomas J, dissenting), cf Duncan Association of Detailman-PTGWO v Glaxo
Wellcome Philippines Inc, GR No 162994 (17 September 2004), (2004) 438 SCRA 343.
by negative obligation alone,238 a mere failure to afford the same state-sanctioned

status of heterosexual marriages to ecclesiastically ordained same-sex marriages would
not constitute a deprivation of religious freedoms per se.
The foregoing discussion is crafted neither to decide on the legitimacy nor moral
propriety of same-sex marriages. It is instead about the potential of the Falcis Petition
to withstand judicial scrutiny when subjected to constitutional tests. Unfortunately for
Falcis, the petition’s prospects of success are in doubt. Contrary to Obergefell, neither
the Philippine legislature nor judiciary is poised to open the door to marriage equality.
As Article 36 of the Family Code and the CMPL show, the legislative and judiciary
alike have abandoned state secularity in favour of sectarianism, content with infusing
religious convictions into the Philippine legal system.
But all is not lost for the Falcis Petition. While the views of mainstream
churches cannot be ignored, jurisprudence has consistently treated religious
freedoms as lex specialis vis-à-vis laws of general application; the judiciary eager to
condone even patently prohibited acts when couched in terms of religious freedoms.239
Ironically, it thus appears that the very remedy against religious encroachments by
the state is the invocation of religion itself. In this light, the following strategies are
offered for the more effective use of religious freedoms in the march towards marriage
equality.
C. Recasting the Debate: Neutrality as a Duty to Accommodate

It is said that the Constitution was crafted to allow the government to control the
governed, but in that same breath, to oblige it to control itself.240 Contrary to the
tripartite duties to respect, protect, and fulfil human rights recognized in international
human rights law,241 the Philippine Bill of Rights is simply ‘a list of those which the
state may not do … not a list of those which the state must do’.242 That principle is
known as the state action doctrine (as distinguished from state inaction liability),
pursuant to which the government is bound by a single obligation: the duty to
respect.243
But as already established, religion is the exception to the general rule. In the
language of religious freedoms, the duty of the state is fulfilled through the doctrine of
benevolent neutrality:
238. See People v Marti, GR No 81561 (18 January 1991), (1991) 193 SCRA 57.
239. See Estrada (n 109).
240. James Madison, ‘The Federalist No 51: The Structure of the Government Must Furnish the Proper
Checks and Balances Between the Different Departments’ in Alexander Hamilton, John Jay and James
Madison, The Federalist Papers (Clinton Rossiter ed, Penguin 1961) 321 (‘In framing a government
which is to be administered by men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control itself.’).
241. Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran
(eds), International Human Rights Law (2nd edn, OUP 2014) 101–104.
242. Record of the Constitutional Commission (n 235).
243. DeShaney (n 236).
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the governments favoured
form of religion, but to allow individuals and groups to exercise their religion without
hindrance… Thus, what is sought under the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but an exemption from its application or its
burdensome effect, whether by the legislature or the court … [The Philippine] Constitution
adheres to the benevolent neutrality approach that gives room for accommodation of
religious exercises as required by the Free Exercise Clause.244
Under the orthodox view, the state need only refrain from interfering with
individual rights; it is not obligated to take positive steps to protect those rights.245
Notice, however, how the language of benevolent neutrality modifies the duty to
respect, which is a negative obligation, into a positive duty to accommodate. In Estrada
v Escritor, the Philippine Supreme Court applied that doctrine by exempting Escritor’s
‘disgraceful and immoral conduct’ from administrative liability.246 But that notion has
recently been further expanded. In Valmores v Achacoso, the Philippine Supreme
Court construed benevolent neutrality as an affirmative duty to protect and preserve
religious freedoms.247
Denmark S Valmores, a Seventh Day Adventist Church (SDAC) devotee and
medical student at the Mindanao State University College of Medicine (MSUCM) – a
public academic institution248 – strictly observed the Sabbath as a sacred day for
worship. He thus refrained from nonreligious undertakings from sunset on Friday to
sunset on Saturday. Hoping to avoid any potential conflict between his academic
schedule and his church’s Saturday worship, Valmores wrote to his professor,
respondent Achacoso, requesting to be excused from attending Saturday classes. He
likewise expressed his willingness to take make-up exams whenever necessary.
Valmores’ request fell on deaf ears. No accommodation having been given to him, he
received a failing grade for Achacoso’s class and was considered ineligible to retake
the exam.
Before the Supreme Court, Achacoso argued inter alia that membership to the
SDAC was not a valid excuse to exempt Valmores from complying with academic
standards. Valmores, however, claimed that his professor’s refusal to accommodate his
request, in contravention of his religious freedoms, violated a 2010 Commission on
Higher Education (CHED) Memorandum.249 The memorandum provides that, in
light of the Free Exercise Clause enshrined in the Philippine Constitution, all higher
education institutions are ordered to excuse students, faculty, personnel, and staff from
school attendance if such conflicts with the exercise of their religious duties. Instead,
244. Estrada (n 109) 10–12.

245. Aoife Nolan, Children’s Socio-Economic Rights, Democracy and the Courts (Hart Publishing 2011) 25.
246. Estrada (n 11) 91.
248. An Act Providing for the Establishment of the University of Mindanao in Dansalan City and Authorizing
the Appropriation of Funds Therefor, Republic Act No 1387 (18 June 1955).
249. Commission on Higher Education, ‘Memorandum from the Chairperson: Remedial Work for
Teachers, Personnel and Students to be Excused Due to Compliance with Religious Obligations’
(15 November 2010), available at < https://drive.google.com/file/d/1EmX2vefzBoMz3uPhkSB9abBO
F1sEg3Z6VAigyZGDXzl4n 3KiLlj2TbucD34P/view > accessed 8 July 2018.
the affected individual ‘may be allowed to do remedial work to compensate for

absences … without their grades being affected, or with no diminution in their
salaries’.250
The Supreme Court ruled for Valmores. In a unanimous decision, the Court held
that because the Bill of Rights guaranteed the free exercise of religion, the state is ‘duty-
bound to protect and preserve’ Valmores’ religious freedom.251 As representatives of
the State, educational institutions should thus restrict their own academic liberties if
they collide with the constitutionally preferred right of religion.
The following observations were made: First, neither public health252 nor academic
freedom253 were at issue. As to the latter, the court insouciantly pronounced that the
‘respondents never even asserted, much less mentioned, their right to academic
freedom in any of their submissions’. In contrast with the secular nature of the
doctrines laid down in Schempp254 and Weisman,255 Valmores conceded that ‘religion
has transcended mere rubric and has permeated into every sphere of human
undertaking’.256 Public education, therefore, is not detached from religious
considerations.
Second, the separation of church and state was wholly ignored. Rather than
invoking the doctrine of non-establishment, the Supreme Court espoused religious
entanglement as the status quo, with religion having already become so deeply
entrenched in Philippine culture. For the Court, therefore, religion is at the heart of the
Philippine legal system. All Philippine constitutions have acknowledged and
recognized the significance of religion in the country’s social and political history.
This is manifested in various benevolent provisions, as well as in the present
constitution’s Preamble (‘imploring the aid of Almighty God’). Ironically, the Court
further expounded on how the recognition is also embodied in Section 5, Article III of
the Constitution – the very same provision which expressly mandates that ‘[n]o law
shall be made respecting an establishment of religion’.
Last and most importantly, while the Court has historically packaged its preference
for religion in passive language, the doctrine of benevolent neutrality now manifests as
an affirmative duty to safeguard religion. Departing from earlier case law recognizing
state action-only liability,257 Valmores interpreted ‘neutrality’ as a duty to protect and
preserve. As in the case of MSUCM, a refusal to accommodate religious beliefs and
practices of same-sex marriages (ie, a failure to protect) would violate religious
freedoms.
250. ibid.
251. Valmores (n 97) 14.
252. See eg Tablarin v Gutierrez, GR No 78164 (31 July 1987), (1987) 152 SCRA 730, 742 (‘the regulation of
the practice of medicine in all its branches has long been recognized as a reasonable method of protecting
the health and safety of the public’).
253. 1987 Constitution, art XIV s5(2).
254. Schempp (n 115).
255. Weisman (n 116).
257. See eg People v Marti (n 238). See also Raphael Pangalangan, ‘The Blurring of the Public/Private
Distinction: Obsolescence of the State Action Doctrine’ (2016) 90 Philippine Law Journal 84.
Freedom of religion is more than an exception to general law; it is an exception to the

very paradigm on which the Bill of Rights is founded. Benevolent neutrality mandates the
state to go beyond the duty to respect – it is obligated to protect religion. Such an
interpretation is consistent with Section 3(1), Article XV of the Constitution, which
compels the state to defend the right to found a family in accordance with one’s religious
convictions.258 Through Valmores, sects such as the MCC and LCCI are effectively given
a narrow but opportune opening to argue for the accommodation of their religious
beliefs and practice of same-sex marriage. The criticism to Falcis’ use of religious
freedoms is therefore not one of impropriety, but one of misapplication. In addition to
the procedural lapses riddling his petition, Falcis fails to capitalize on substantive law in
advocating for judicial protection of the religious beliefs of the MCC and LCCI.
Falcis insists that Articles 1 and 2 of the Family Code proscribe same-sex couples
from founding a family in accordance with their religious convictions.259 This claim is
problematic, considering that the questioned articles are merely permissive and are
neither mandatory nor prohibitory (ie, they allow, but neither prescribe nor proscribe,
conduct).260 These provisions do not forbid same-sex unions in the same way that they
do not compel heterosexual marriages. Rather, they merely fail to confer on the former
the same statutorily created status of marriage enjoyed by the latter. However, as I have
argued earlier, under Philippine constitutional tradition, the state is bound only by a
negative obligation. There is thus no constitutionally mandated duty to ‘give’ that legal
status of marriage.261 As far as the Bill of Rights is concerned, the members of the MCC
and LCCI cannot be ‘deprived without due process of law’ of what they did not have in
the first place.
However, this criticism only attacks the orthodox view of the Falcis Petition: Falcis
can still avail himself of a better argument. What Falcis should have done was to recast
the debate not as a prohibition on religious freedoms (ie, as a deprivation of the
constitutional right of spouses to found a family in accordance with their religious
convictions) but rather as a failure to accommodate religious freedoms, particularly
that of the MCC and LCCI. Recall that Valmores interpreted benevolent neutrality as a
duty of the state to protect and preserve. Pursuant to this paradigm, the ‘refusal to
accommodate’ religious belief would violate the constitutionally enshrined right to the
free exercise of religion.262 Concomitantly, a failure to accommodate the MCC’s and
LCCI’s religious views of marriage cannot be countenanced. As a matter of duty, the
state must ensure that religious freedoms are unconstrained.263
258. See Falcis Petition (n 13) paras 84–88.

260. Teodorico C Martin and Arturo M Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, vol 1 (Central Books 2004) 8 (‘Law, in the specific sense, is generally classified into
mandatory, prohibitory, and permissive. In commands in three different ways: (1) it commands that
something be done, in which case it is mandatory; (2) it commands that something should not be done, in
which case it is prohibitory; and (3) it commands that what it permits to be done should be tolerated or
respected, in which case it is permissive.’).
261. But see 1987 Constitution, art III s 1 (‘nor shall any person be denied the equal protection of the laws’); cf
Ang Ladlad (n 41) (Puno CJ, separately concurring).
262. Valmores (n 97) 13.
263. ibid.
If religious freedoms will indeed be used in the march towards marriage equality, the
task remains: (1) to cure the procedural flaws of the Falcis Petition by either finding an
appropriate party suffering from a personal injury264 or by bringing a case in a
representative capacity;265 and (2) to re-frame the claim as one of accommodation of
religion rather than its prohibition or deprivation.
With these elements present, unbeknownst to the Philippines Supreme Court, their
breach of the Jeffersonian wall may have very well set the stage for marriage equality –
ironically, through the vehicle of religion.
vii. conclusion
The Philippine Constitution mandates a separation between church and state, yet its
statutes and case law contemplate a different paradigm – one reflective of a Christian
faith deeply entrenched after centuries under Spanish rule. US doctrine assumed
religious pluralism and an open market of competing faiths, yet it is imported into a
vastly different context. There is no fragmentation in the Philippines’ religious market.
A single religion dominates; lording it over with its own lord.
There remains a gap between grand constitutional doctrines on one hand, and
legislation, court decisions, and workaday practices, on the other. The Bill of Rights
may have been crafted to place religious freedom beyond the reach of political
majorities,266 but it clashes with the republican democracy likewise enshrined in the
Philippine Constitution. Elected legislators thus treat the Establishment Clause as a
curtailment of their ‘sacred duty’267 to their sovereign electors. They evade
constitutionally enshrined limits by invoking their own constitutionally mandated
duty.268
Congress makes a legitimate point. The essence of republicanism is indeed
representation.269 The true error thus lies elsewhere – not with the political
institution, but the professed counter-majoritarian court. By deciding ‘cases and
controversies [in ways that] reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government’,270 the judiciary disclaims its apolitical mandate. In interpreting
constitutional limits in light of majoritarian views rather than in spite of them, the
264. Jaymee T Gamil, ‘Same-sex couples to challenge marriage ban at SC’ Philippine Daily Inquirer (Manila, 4
August 2015) < http://newsinfo.inquirer.net/710349/same-sex-couples-to-challenge-marriage-ban-at-sc >
accessed 18 February 2018.
265. See Banda v Ermita (n 226), citing Rules of Court, r 3 s 12; cf Sauler (n 45); see also Comment of the OSG
(n 38) paras 13 to 14.
266. Philippine Blooming Mills Employment Organization v Philippine Blooming Mills Co Inc, GR No
L31195 (5 June 1973), (1973) 51 SCRA 189, citing Barnette (n 108) 638.
267. See Saguisag v Ochoa Jr, GR No 212426 (12 January 2016), (2016) 779 SCRA 241, 333 (members of
Congress ‘are representatives of the sovereign people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people is not trampled upon’). See eg Congressional
Record (n 202) 31.
268. Naval v Commission on Elections, GR No 207851 (8 July 2014), (2014) 729 SCRA 299, 316.
269. ibid 315.
270. Angara v Electoral Commission, GR No L-45081 (15 July 1936), (1936) 63 Phil 139, 158. See eg Santos
(n 76).
Supreme Court betrays the very minoritarian basis of constitutional guarantees.

Instead of protecting religious faiths such as the MCC and LCCI, the court leaves them
at the mercy of the predominant faith acting through their elected representatives in
Congress, flexing political muscle under the guise of democracy.
The constitution never purported to ‘establish and divide fields of black and
white’.271 The extent of constitutionally enshrined limits varies gradually from one
extreme to the other.272 In the Philippines, that relativism extends beyond church-state
relations and into the epistemological line between religion and secular culture.
Religion thus serves as that ‘hydraulic pressure … before which even well settled
principles of law will bend’.273 But while the Jeffersonian wall may have been
compromised and debased at every turn, the fact that it has been consistently
constitutionalized since the Philippines’ 1899 Independence Constitution means it has
a place in the Filipinos’ public life. That the people prefer to tinker, tweak, and trivialize
it in daily life means that the separation of church and state is likewise so normatively
entrenched in Philippine society that it can only be confronted in episodic compromises
that erode, but not erase it.
The constitutional wall of separation mandates that the Filipino people ‘[r]ender to
Caesar the things that are Caesar’s, and to God the things that are God’s’.274 The
Constitution asks for too much. Religious values are so deeply embedded in secular
culture that it is impossible to draw the line where God’s realm ends and Caesar’s
begins. That the Philippines is a civil law country makes it even worse, because the
moral values of the religious majority are unapologetically legislated into all-
encompassing codes. The Falcis Petition hopes to be the Philippines’ Obergefell,
praying that the Supreme Court pave the way for same-sex unions by concluding for
church-state separation. Yet in a nation where the Jeffersonian wall is routinely
breached historically in favour of free exercise, the more compelling approach for
marriage equality is not to excise the Philippines’ religious bias, but to exploit it.275
Contrary to Obergefell, neither the Philippine legislature nor courts are poised to
open the door to marriage equality. Until the Philippine legal system distinguishes
popular religious belief from secular culture, foreign notions of absolute divorce and
same-sex marriages are unlikely to be given legal recognition within its jurisdiction. It
thus appears that Falcis should do more than petition before the gods of Padre
Faura276 – he must petition the heavens. But indeed a man’s reach should exceed his
grasp, or what is a heaven for?277
271. Springer v Government of the Philippine Islands (1928) 277 US 189, 209 (Holmes J dissenting).
272. ibid.
273. Northern Securities Co v United States (1904) 193 US 197, 401 (Holmes J (joined by Fuller CJ, White J,
and Peckham J), dissenting).
274. New American Standard Bible, Mark 12:17.
275. See eg Valmores (n 97).
276. ‘Supreme Court wants out of Faura, transfer to Fort Bonifacio’ Philippine Daily Inquirer (Manila, 18
August 2014) < http://newsinfo.inquirer.net/630207/supreme-court-wants-out-of-faura-transfer-to-fort-
bonifacio > accessed 19 February 2018 (‘The location of the Supreme Court building on Padre Faura led
to the justices being dubbed the “gods of Padre Faura”.’).
277. Robert Browning, ‘Andrea del Sarto’ in Men and Women (Ticknor and Fields 1855) 184.

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Asian Journal of Comparative Law, Page 1 of 32

Relative Impermeability of the Wall

Raphael Lorenzo Aguiling PANGALANGAN*

i. the philippines: a secular state

* Lecturer, Department of Philosophy, University of the Philippines; Master of Studies in International

Supreme Court. By framing religious freedoms as the backdrop of the Philippines’

ii. same constitutional doctrine, different

Table 1. Religious Demography

Roman Catholic, including Catholic Charismatic 74,211,896 80.6%

A. The Marriage Equality Petition: Obergefell v Hodges

19. Pangalangan, ‘Country Reports: Philippines’ (n 14) 364.

Further, state-sanctioned same-sex unions were not found to violate First

B. What Would Jesus Do?: The Case of Falcis v Civil Registrar-General

29. US Constitution, Amendment I.

iii. marriage: the union of canon and civil law

51. ibid para 4.

A. De Facto Divorce: The Marriage of Canon and Civil Law

64. Obergefell (n 12) 25–28.

B. Exceptions for the Minority Faith

attained upon reaching puberty – which is statutorily presumed to be attained at the

iv. freedom of religion: the exception to

A. Religious Exceptions to the General Rule

98. Goldman v Weinberger (1986) 475 US 503.

B. Religious Accommodations in Public Institutions

115. Abington School District v Schempp (1963) 374 US 203.

C. Government Endorsed Religious Holidays

125. ibid 319.

D. Religious Expression as a Highly Protected Speech

136. Garces (n 134) 518.

‘bedrock of freedom of religion is freedom of thought … [hence] the marketplace of

147. ibid 547.

discrimination’.157 Likening the law to lèse-majesté – a ‘set of criminal offenses meant

E. Juridical Personality of Majority and Minority Faiths

v. union, dissolution, consummation:

A. Civil Partnerships: Separate but Equal

170. Ung Siu Si Temple (n 168) 61.

B. Marriage Dissolution, Church Annulments: Divorce in Sheep’s Clothing

180. HB 6595, s 11(a).

As observed in an expert opinion by the University of the Philippines Institute of

away from the religious underpinning of Philippine law. On the contrary, it

C. The Secular State of Reproductive Health

vi. recasting religious freedoms for marriage

character as an antiquated notion. The US Supreme Court acknowledged that although

A. Procedural Errors: Religious Freedoms for Whom?

213. Obergefell (n 12) 3.

two minority religions of a generous estimate of 150 followers220 – a membership of

B. Substantive Mischaracterization: A Lack of Deprivation

claims that reserving state-sanctioned marriages to heterosexual couples alone is

230. Falcis Petition (n 13) para 84.

by negative obligation alone,238 a mere failure to afford the same state-sanctioned

C. Recasting the Debate: Neutrality as a Duty to Accommodate

244. Estrada (n 109) 10–12.

the affected individual ‘may be allowed to do remedial work to compensate for

Freedom of religion is more than an exception to general law; it is an exception to the

258. See Falcis Petition (n 13) paras 84–88.

Supreme Court betrays the very minoritarian basis of constitutional guarantees.

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