Constitutional Law 2

Free Exercise and Non-Establishment of Religion Clauses (Art. III, Sec. 5)1
The Religion Clauses
The purpose of the religion clauses both in the restriction it imposes on the government to interfere
with the free exercise of religion and the limitation on the government to establish, aid, and support
religion is the protection and promotion of religious liberty.
The clauses were not designed to serve contradictory purposes. They have a single goal to promote
freedom of individual religious beliefs and practices.
The two religion clauses were intended to deny government the power to use either the carrot or the
stick to influence individual religious beliefs and practices.

Benevolent Neutrality and Separation

Accommodation is distinguished from strict neutrality in that the latter holds that government should
base public policy solely on secular considerations, without regard to its religious consequences.
Separation strict or tame protects the principle of church-state separation with a rigid reading of
the principle. It holds that the wall of separation was meant to protect the state from the church.
Strict Neutrality, a tamer version of the strict separationist view, requires the state to be neutral in its
relations with groups of religious believers and non-believers; it does not require the state to be their
adversary. State power is to neither handicap religions nor favor them.
Benevolent neutrality gives room for accommodation, buttressed by a different view of the wall of
separation wherein unlike the unlike the Jeffersonian wall that is meant to protect the state from the
church; instead, the wall is meant to protect the church from the state.

Benevolent Neutrality as the Standard of Separation

There is a recognition that religion plays an important role in public life as shown by many traditional
government practices which, to strict neutrality, pose Establishment Clause questions.
It believes that accommodation of religion may be allowed, not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their religion without hindrance.
Under the theory, the freedom to carry out ones duties to a Supreme Being is an inalienable right, not
one dependent on the grace of legislature.
Religious freedom is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances.
The benevolent neutrality approach is adopted because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which the Court should take off
in interpreting religion clause cases.

Free Exercise Clause

The Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice. It proscribes establishment is a necessary means to protect the rights of
those who might dissent from whatever religion is established.
Freedom to believe is absolute but freedom to act on ones belief, where it affects the public, is subject
to the authority of the state.
The Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but
carving out or upholding an exception to accommodate religious exercise where it is justified.
Given that a free exercise claim could lead to three different results, the question now remains as to
how the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling
state interest test which is most in line with the benevolent neutrality-accommodation approach.

1
Art. III, Sec. 5 provides: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.

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Reviwer is based primarily on the two Estrada v. Escritor cases.
Accommodation under Benevolent Neutrality
Using benevolent neutrality as a standard could result to three situations of accommodation: those
where accommodation is required, those where it is permissible, and those where it is prohibited.
A free exercise claim could result to three kinds of accommodation:
Those found to be constitutionally compelled, i.e., required by the Free Exercise Clause;
Those which are discretionary or legislative, i.e., not required by the Free Exercise Clause
but nonetheless permitted by the Establishment Clause; and
Those which the religion clauses prohibit
Given that a free exercise claim could lead to three different results, it is the strict scrutiny-compelling
state interest test which is most in line with the benevolent neutrality-accommodation approach.
Underlying the compelling state interest test is the notion that free exercise is a fundamental right
and that laws burdening it should be subject to strict scrutiny.

When Accommodation is Required, Mandatory

In this situation, accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for religious freedom.
Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e, when the Court itself carves out an exemption.
In a situation where accommodation is required, a three-step process is followed in weighing the
states interest and religious freedom when these collide:
- First, has the statute or government action created a burden on the free exercise of religion?
The courts often look into the sincerity of the religious belief, but without inquiring into the
truth of the belief because the Free Exercise Clause prohibits inquiring about its truth.
The sincerity of the claimants belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation.
- Second, the court asks: is there a sufficiently compelling state interest to justify this infringement
of religious liberty?
The government has to establish that its purposes are legitimate for the state and that they
are compelling. It must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.
The person claiming religious freedom will try to show that the interest is not legitimate or
that the purpose, although legitimate, is not compelling compared to infringement of
religious liberty.
This step involves balancing, i.e., weighing the interest of the state against religious liberty
to determine which is more compelling under the particular set of facts.
- Third, the court asks: has the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?
The analysis requires the state to show that the means in which it is achieving its legitimate
state objective is the least intrusive means.
As a whole, in carrying out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined judgment.

When Accommodation is Permitted

In the second situation where accommodation is permissible, the state may, but is not required to,
accommodate religious interests.
The limits of permissible state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.

When Accommodation is Prohibited

There is prohibited accommodation when the Court finds no basis for a mandatory accommodation, or
it determines that the accommodation runs afoul of the establishment or free exercise clause.

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 In this case, the Court finds that establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not
mean that all claims for free exercise exemptions are valid.

Acts Permitted/Not Permitted by the Free Exercise Clause

Acts Permitted
- Registration provisions of the Value Added Tax law imposing a registration fee is merely an
administrative fee to defray part of the cost of registration. (Tolentino v. Secretary of
Finance)
- Imposition of tax without an exemption for sale of religious materials as such burden is not
different from that imposed by other generally applicable laws and regulations to which
religious organizations must adhere. (Jimmy Swaggart Ministries v. Board of Equalization)
Acts Not Permitted
- Requiring a religious missionary corporation to secure a permit and license ordinarily
required of those engaged in the business of general merchandise. The power to tax the
free exercise of religion is the power to control/suppress its enjoyment. (American Bible
Society v. City of Manila)
- Expelling students who refuse to take part in the flag ceremony in account of their religious
beliefs as Jehovahs Witnesses. (Ebralinag v. Division of Schools)
- MTRCB classifying Iglesia ni Cristo TV programs criticizing other religions. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it
against an attack by another religion. (Iglesia ni Cristo v. CA)

Non-Establishment Clause
The Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices.
It mandates separation of church and state to protect each from the other, in service of the larger goal
of preserving religious liberty, to limit the opportunities for any religious group to capture the state
apparatus to the disadvantage of those of other faiths, or of no faith at all.
A law or government action with a legitimate secular purpose does not offend the Establishment Clause
even if it incidentally aids a particular religion.

Lemon Test
The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause.
- First, the statute must have a secular legislative purpose
- Second, its primary or principal effect must be one that neither advances nor inhibits religion
- Finally, the statute must not foster an excessive entanglement with religion.

Acts Permitted/Not Permitted By The Non-Establishment Clause

Acts Permitted
- Issuing and selling postage stamps commemorative of a religious event, as it promotes
Philippine tourism and to give publicity to the Philippines and its people. (Aglipay v. Ruiz)
- Lending textbooks free of charge to all students, including those in parochial schools, as it
furthers educational opportunities available to the young. (Board of Education v. Allen)
- Reimbursement to parents of money expended by them for the bus transportation of their
children, part of which was for the transportation of some children enrolled in Catholic
parochial schools. The legislation does no more than provide a general program to help
parents get their children to school, regardless of their religion. (Everson v. Board of
Education)
Acts Not Permitted
- Financial subsidy for teachers, where Roman Catholic school teachers are the sole
beneficiaries. The statute involves excessive entanglement. (Lemon v. Kurtzman)

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Definition of Religion
It has been proposed a creed must meet 4 criteria to qualify as religion under the First Amendment.
- First, there must be belief in God or some parallel belief that occupies a central place in the
believers life.
- Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be
purely subjective.
- Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.
- Fourth, there must be some associational ties, although there is also a view that religious beliefs
held by a single person rather than being part of the teachings of any kind of group or sect are
entitled to the protection of the Free Exercise Clause.

On Public Morality
The distinction relevant is the one between public and secular morality on the one hand, and religious
morality on the other. The distinction is important because the jurisdiction of the Court extends only to
public and secular morality.
The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions.
Although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests.

Other Constitutional Provisions on Religion

- Tax Exemption for Religious Institutions
Art. VI, Sec. 28(3) provides: Charitable institutions, churches and personages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
- Prohibition on Appropriation of Public Money and Property
Art. VI, Sec. 29(2) provides: No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher, minister,
other religious teacher, or dignitary as such, except when such priest, preacher, minister,
or dignitary is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium.
- Permitted Religious Instruction in Public Schools
Art. XIV, Sec. 3(3) provides: At the option expressed in writing by the parents or guardians,
religion shall be allowed to be taught to their children or wards in public elementary and high
schools within the regular class hours by instructors designated or approved by the religious
authorities of the religion to which the children or wards belong, without additional cost to
the Government.
- Operation of Educational Institutions
Art. XIV, Sec. 4(2) provides: Educational institutions, other than those established by
religious groups and mission boards, shall be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum of the capital of which is owned by
such citizens. The Congress mayrequire increased Filipino equity participation in all
educational institutions.

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