“Separation of Church and State” in the Philippines

VII. Religion Clauses in the Philippines

A. History

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses.  However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and benevolent neutrality – the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B.  Jurisprudence

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

1. Free Exercise Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts.  It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.[321]

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

Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.[322]

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

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

It stated in categorical terms, viz:

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

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

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

Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion.  It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.[327] (emphasis supplied)

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

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one’s chosen form of religion within limits of utmost amplitude.  It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted).  Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)  But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state’s secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)

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

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.[331]

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

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

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

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

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

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

The Court reiterated the Gerona rulingviz:

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

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

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

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

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

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

2.  In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights.  The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).[339] (emphasis supplied)

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

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

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

The Court added, viz:

We are not persuaded that by exempting the Jehovah’s Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a ‘small portion of the school population’ will shake up our part of the globe and suddenly produce a nation ‘untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes’ (Gerona v. Secretary of Education, 106 Phil. 224).  After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of ‘patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula.  Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona.  Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.[343]

Barnette also found its way to the opinion, viz:

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

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

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

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

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

The Court annulled the orders expelling petitioners from school.

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

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

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

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

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

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion.  There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm.  Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.

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

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

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

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

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension.  The first, voluntarism, has both a personal and a social dimension.  As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause.  From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.[354] As a social value, it means that the “growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage.  Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics.”[355] Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.[356]

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

The prohibition herein expressed is a direct corollary of the principle of separation of church and state.  Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom.  All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications.  It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.

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

xxx                                                                          xxx                                                                   xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government.  We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation.  The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saint’s image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling.  The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio.  It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an “ingrained tradition in rural communities” that “relieves the monotony and drudgery of the lives of the masses.”  Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrioresidents.  The Court pointed out that the image of the patron saint was “purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents.”  Citing the Aglipay ruling, the Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://sc.judiciary.gov.ph/jurisprudence/2003/aug2003/am_p_02_1651.htm

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About Erineus

Ernesto O. Bendita. Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Church and State, Constitutional Law, Constitutional Rights, History, Religious Freedom and tagged . Bookmark the permalink.

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