1
EN BANC exclusively to courts or tribunals to keep them within the limits of
G.R. No. L-45459             March 13, 1937
GREGORIO AGLIPAY, petitioner,  the jurisdiction of other tribunals, but will issue, in appropriate
vs. JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the
Philippine Independent Church, seeks the issuance from this court
of a writ of prohibition to prevent the respondent Director of Posts
from issuing and selling postage stamps commemorative of the
Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of
Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the
Thirty-third international Eucharistic Congress, organized by the
Roman Catholic Church. The petitioner, in the fulfillment of what
he considers to be a civic duty, requested Vicente Sotto, Esq.,
member of the Philippine Bar, to denounce the matter to the
President of the Philippines. In spite of the protest of the
petitioner's attorney, the respondent publicly announced having
sent to the United States the designs of the postage stamps for
printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as
border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are
for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were
actually issued and sold though the greater part thereof, to this
day, remains unsold. The further sale of the stamps is sought to be
prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not
the proper legal remedy in the instant case, although he admits
that the writ may properly restrain ministerial functions. While,
generally, prohibition as an extraordinary legal writ will not issue
to restrain or control the performance of other than judicial or
quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may
issue to . . . inferior tribunals, corporations, boards, or persons,
whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal,
corporation, board, or person, . . . ." (Secs. 516 and 226, Code of
Civil Procedure.) The terms "judicial" and "ministerial" used with
reference to "functions" in the statute are undoubtedly
comprehensive and include the challenged act of the respondent
Director of Posts in the present case, which act because alleged to
be violative of the Constitution is a fortiorari "without or in
excess of . . . jurisdiction." The statutory rule, therefore, in the
jurisdiction is that the writ of prohibition is not confined
Religious freedom, however, as a constitutional mandate is not
their own jurisdiction and to prevent them from encroaching upon
cases, to an officer or person whose acts are without or in excess
of his authority. Not infrequently, "the writ is granted, where it is
necessary for the orderly administration of justice, or to prevent
the use of the strong arm of the law in an oppressive or vindictive
manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation
of the Constitution by the respondent in issuing and selling
postage stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the
respondent is violative of the provisions of section 23, subsection
3, Article VI, of the Constitution of the Philippines, which
provides as follows:
No public money or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, secretarian, institution, or system
of religion, or for the use, benefit, or support of any priest,
preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is
assigned to the armed forces or to any penal institution,
orphanage, or leprosarium.”
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 ocassions might arise when the
estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of
church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the
United States and Spain of December 10, 1898, reiterated in
President McKinley's Instructions of the Philippine Commission,
reaffirmed in the Philippine Bill of 1902 and in the autonomy Act
of August 29, 1916, and finally embodied in the constitution of
the Philippines as the supreme expression of the Filipino people.
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 religious toleration.
inhibition of profound reverence for religion and is not 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 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. Our Constitution and laws
exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the
Philippines and sec. 1, subsec. 4, Ordinance appended thereto;
Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is
not prohibited when a priest, preacher, minister or other religious
teacher or dignitary as such is assigned to the armed forces or to
any penal institution, orphanage or leprosarium 9 sec. 13, subsec.
3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate
allowed (sec. 5, Art. XIII, Constitution of the Philippines, in
relation to sec. 928, Adm. Code). Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays and made
legal holidays (sec. 29, Adm. Code) because of the secular idea
that their observance is conclusive to beneficial moral results. The
law allows divorce but punishes polygamy and bigamy; and
certain crimes against religious worship are considered crimes
against the fundamental laws of the state (see arts. 132 and 133,
Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts
issued the postage stamps in question under the provisions of Act
No. 4052 of the Philippine Legislature. This Act is as follows:
No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY
THOUSAND PESOS AND MAKING THE SAME
AVAILABLE OUT OF ANY FUNDS IN THE INSULAR
TREASURY NOT OTHERWISE APPROPRIATED FOR THE
COST OF PLATES AND PRINTING OF POSTAGE STAMPS
WITH NEW DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the
same:

SECTION 1. The sum of sixty thousand pesos is hereby
appropriated and made immediately available out of any funds in
the Insular Treasury not otherwise appropriated, for the costs of
plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary
of Public Works and Communications, is hereby authorized to
dispose of the whole or any portion of the amount herein
appropriated in the manner indicated and as often as may be
deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise
expended shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand
pesos for the costs of plates and printing of postage stamps with
new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public
Works and Communications, to dispose of the amount
appropriated in the manner indicated and "as often as may be
deemed advantageous to the Government". The printing and
issuance of the postage stamps in question appears to have been
approved by authority of the President of the Philippines in a
letter dated September 1, 1936, made part of the respondent's
memorandum as Exhibit A. The respondent alleges that the
Government of the Philippines would suffer losses if the writ
prayed for is granted. He estimates the revenue to be derived from
the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth
P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it
gives the Director of Posts is the discretionary power to determine
when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the
violation of the Constitution. It does not authorize the
appropriation, use or application of public money or property for
the use, benefit or support of a particular sect or church. In the
present case, however, the issuance of the postage stamps in
question by the Director of Posts and the Secretary of Public
Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit
of the Roman Catholic Church. Nor were money derived from the
sale of the stamps given to that church. On the contrary, it appears
from the latter of the Director of Posts of June 5, 1936,
incorporated on page 2 of the petitioner's complaint, that the only
purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of
international importance "to give publicity to the Philippines and
its people" (Letter of the Undersecretary of Public Works and
Communications to the President of the Philippines, June 9, 1936;
p. 3, petitioner's complaint). It is significant to note that the
stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains
a map of the Philippines and the location of the City of Manila,
and an inscription as follows: "Seat XXXIII International
Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not
the Eucharistic Congress itself but Manila, the capital of the
Philippines, as the seat of that congress. 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 embarassed 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 subordinate to mere
incidental results not contemplated. (Vide Bradfield vs. Roberts,
175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for
the petitioner to maintain inviolate the complete separation of
church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene
of religious intolerance and prescription, care should be taken that
at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect
or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we
have come to the conclusion that there has been no constitutional
infraction in the case at bar, Act No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and
Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made
use of a poor judgment in issuing and selling the postage stamps
in question still, the case of the petitioner would fail to take in
weight. Between the exercise of a poor judgment and the
unconstitutionality of the step taken, a gap exists which is yet to
be filled to justify the court in setting aside the official act assailed
as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without
pronouncement as to costs. So ordered.
EN BANC
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO
OSMEÑA, NICETAS DAGAR and JESUS
2
EDULLANTES, petitioners, 
vs. Hon. NUMERIANO G. ESTENZO, Presiding Judge of the
Court of First Instance of Leyte, Ormoc City Branch V,
BARANGAY COUNCIL of Valencia, Ormoc City, Barangay
Captain MANUEL C. VELOSO, Councilmen GAUDENCIO
LAVEZARES, TOMAS CABATINGAN and MAXIMINO
NAVARRO, Barangay Secretary CONCHITA MARAYA and
Barangay Treasurer LUCENA BALTAZAR, respondents.
AQUINO, J.:
This case is about the constitutionality of four resolutions of the
barangay council of Valencia, Ormoc City, regarding the
acquisition of the wooden image of San Vicente Ferrer to be used
in the celebration of his annual feast day. That issue was spawned
by the controversy as to whether the parish priest or a layman
should have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution
No. 5, "reviving the traditional socio-religious celebration" every
fifth day of April "of the feast day of Señor San Vicente Ferrer,
the patron saint of Valencia".
That resolution designated the members of nine committees who
would take charge of the 1976 festivity. lt provided for (1) the
acquisition of the image of San Vicente Ferrer and (2) the
construction of a waiting shed as the barangay's projects. Funds
for the two projects would be obtained through the selling of
tickets and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6
which specified that, in accordance with the practice in Eastern
Leyte, Councilman Tomas Cabatingan, the Chairman or hermano
mayor of the fiesta, would be the caretaker of the image of San
Vicente Ferrer and that the image would remain in his residence
for one year and until the election of his successor as chairman of
the next feast day.
It was further provided in the resolution that the image would be
made available to the Catholic parish church during the
celebration of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were
duly ratified by the barangay general assembly on March 26,
1976. Two hundred seventy-two voters ratified the two
resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations
of the barangay residents and those of the neighboring places of
Valencia. With those funds, the waiting shed was constructed and
the wooden image of San Vicente Ferrer was acquired in Cebu

City by the barangay council for four hundred pesos (Exh. F-l, 3
and 4).
On April 5, 1976, the image was temporarily placed in the altar of
the Catholic church of Barangay Valencia so that the devotees
could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father
Sergio Marilao Osmeña refused to return that image to the
barangay council on the pretext that it was the property of the
church because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion
of his sermon during a mass, Father Osmeña allegedly uttered
defamatory remarks against the barangay captain, Manuel C.
Veloso, apparently in connection with the disputed image. That
incident provoked Veloso to file against Father Osmeña in the city
court of Ormoc City a charge for grave oral defamation.
Father Osmeña retaliated by filing administrative complaints
against Veloso with the city mayor's office and the Department of
Local Government and Community Development on the grounds
of immorality, grave abuse of authority, acts unbecoming a public
official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the
Catholic church of Valencia. Because Father Osmeña did not
accede to the request of Cabatingan to have custody of the image
and "maliciously ignored" the council's Resolution No. 6, the
council enacted on May 12, 1976 Resolution No. 10, authorizing
the hiring of a lawyer to file a replevin case against Father
Osmeña for the recovery of the image (Exh. C or 8). On June 14,
1976, the barangay council passed Resolution No. 12, appointing
Veloso as its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against
Father Osmeña and Bishop Cipriano Urgel (Exh. F). After the
barangay council had posted a cash bond of eight hundred pesos,
Father Osmeña turned over the image to the council (p. 10, Rollo).
ln his answer to the complaint for replevin, he assailed the
constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the
Aglipayan Church, and two Catholic laymen, Jesus Edullantes and
Nicetas Dagar, filed against the barangay council and its members
(excluding two members) a complaint in the Court of First
Instance at Ormoc City, praying for the annulment of the said
resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of
the resolutions. The petitioners appealed under Republic Act No.
5440. The petitioners contend that the barangay council was not
duly constituted because lsidoro M. Mañago, Jr., the chairman of
the kabataang barangay, was not allowed to participate in its
sessions.
Barangays used to be known as citizens assemblies (Presidential
Decrees Nos. 86 and 86-A). Presidential Decree No. 557, which
took effect on September 21, 1974, 70 O.G. 8450-L, directed that
all barrios should be known as barangays and adopted the Revised
Barrio Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which
they are situated. They are quasi-municipal corporations endowed
with such powers" as are provided by law "for the performance of
particular government functions, to be exercised by and through
their respective barrio governments in conformity with law" (Sec.
2, Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of
the barrio for at least six months, eighteen years of age or over
and Filipino citizens duly registered in the list kept by the barrio
secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the
barangay captain and six councilmen (Sec. 7, Ibid). Section 3 of
Presidential Decree No. 684, which took effect on April 15, 1975,
provides that "the barangay youth chairman shall be an ex-
officio member of the barangay council", having the same powers
and functions as a barangay councilman.
In this case, Mañago, the barangay youth chairman, was notified
of the sessions of the barangay council to be held on March 23
and 26, 1976 but he was not able to attend those sessions because
he was working with a construction company based at Ipil, Ormoc
City (Par. 2[d] Exh. 1).
Mañago's absence from the sessions of the barangay council did
not render the said resolutions void. There was a quorum when the
said resolutions were passed.
The other contention of the petitioners is that the resolutions
contravene the constitutional provisions that "no law shall be
made respecting an establishment of religion" and that "no public
money or property shall ever be appropriated, applied, paid, 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,
3
minister, or other religious teacher or dignitary as such. except
when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government
orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2],
Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned
resolutions do not directly or indirectly establish any religion, nor
abridge religious liberty, nor appropriate public money or
property for the benefit of any sect, priest or clergyman. The
image was purchased with private funds, not with tax money. The
construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the
barangay council favored the Catholic religion by using the funds
raised by solicitations and donations for the purchase of the patron
saint's wooden image and making the image available to the
Catholic church.
The preposterousness of that argument is rendered more evident
by the fact that counsel advanced that argument in behalf of the
petitioner, Father Osmeña the parish priest.
The wooden image 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. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in
the church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta
and having a patron saint for the barrio, then any activity intended
to facilitate the worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-
religious affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of
the lives of the masses.
The barangay council designated a layman as the custodian of the
wooden image in order to forestall any suspicion that it is favoring
the Catholic church. A more practical reason for that arrangement
would be that the image, if placed in a layman's custody, could
easily be made available to any family desiring to borrow the
image in connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their
affidavits. Petitioner Garces swore that the said
resolutions favored the Catholic church. On the other hand,
petitioners Dagar and Edullantes swore that the
resolutions prejudiced the Catholics because they could see the
image in the church only once a year or during the fiesta (Exh. H
and J).
We find that the momentous issues of separation of church and
state, freedom of religion annd the use of public money to favor
any sect or church are not involved at all in this case even
remotely or indirectly. lt is not a microcosmic test case on those
issues.
This case is a petty quarrel over the custody of a saint's image. lt
would never have arisen if the parties had been more diplomatic
and tactful and if Father Osmeña had taken the trouble of causing
contributions to be solicited from his own parishioners for the
purchase of another image of San Vicente Ferrer to be installed in
his church.
There can be no question that the image in question belongs to the
barangay council. Father Osmeña claim that it belongs to his
church is wrong. The barangay council, as owner of the image,
has the right to determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to
the Catholic church. that action would not violate the Constitution
because the image was acquired with private funds and is its
private property.
The council has the right to take measures to recover possession
of the image by enacting Resolutions Nos. 10 and 12.
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.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No.
4052 which appropriated sixty thousand pesos for the cost of
plates and the printing of postage stamps with new designs. Under
the law, the Director of Posts, with the approval of the
Department Head and the President of the Philippines, issued in
1936 postage stamps to commemorate the celebration in Manila
of the 33rd International Eucharistic Congress sponsored by the
Catholic Church.
The purpose of the stamps was to raise revenue and advertise the
Philippines. The design of the stamps showed a map of the
Philippines and nothing about the Catholic Church. No religious
purpose was intended.
Monsignor Gregorio Aglipay, the founder and head of the
Philippine Independent Church, sought to enjoin the sale of those
commemorative postage stamps.
It was held that the issuance of the stamps, while linked
inseparably with an event of a religious character, was not
designed as a propaganda for the Catholic Church. Aglipay's
prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs.
Fernandez, 49 Phil., 627 and 55 Phil. 307, where a religious
brotherhood, La Archicofradia del Santisimo Sacramento,
organized for the purpose of raising funds to meet the expenses
for the annual fiesta in honor of the Most Holy Sacrament and the
Virgin Lady of Guadalupe, was held accountable for the funds
which it held as trustee. 0
Finding that the petitioners have no cause of action for the
annulment of the barangay resolutions, the lower court's judgment
dismissing their amended petition is affirmed. No costs.
SO ORDERED.
EN BANC
G.R. No. 153888             July 9, 2003
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES,
INC., herein represented by PROF. ABDULRAFIH H.
SAYEDY, petitioner,  halal certification since those without said certification had not
vs. OFFICE OF THE EXECUTIVE SECRETARY of the
Office of the President of the Philippines, herein represented
by HON. ALBERTO G. ROMULO, Executive Secretary, and
the OFFICE ON MUSLIM AFFAIRS, herein represented by
its Executive Director, HABIB MUJAHAB
HASHIM, respondents.
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic
Da'wah Council of the Philippines, Inc. (IDCP) praying for the
declaration of nullity of Executive Order (EO) 46, s. 2001 and the
prohibition of herein respondents Office of the Executive
Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of
Social Welfare and Development License No. SB-01-085, is a
non-governmental organization that extends voluntary services to
the Filipino people, especially to Muslim communities. It claims
to be a federation of national Islamic organizations and an active
4
member of international organizations such as the Regional
Islamic Da'wah Council of Southeast Asia and the Pacific
(RISEAP)1 and The World Assembly of Muslim Youth. The
RISEAP accredited petitioner to issue halal2certifications in the
Philippines. Thus, among the functions petitioner carries out is to
conduct seminars, orient manufacturers on halal food and issue
halal certifications to qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify
food products as halal and also due to halal food producers'
request, petitioner formulated in 1995 internal rules and
procedures based on the Qur'an3 and the Sunnah4 for the analysis
of food, inspection thereof and issuance of halal certifications. In
that same year, petitioner began to issue, for a fee, certifications to
qualified products and food manufacturers. Petitioner even
adopted for use on its halal certificates a distinct sign or logo
registered in the Philippine Patent Office under Patent No. 4-
2000-03664.
On October 26, 2001, respondent Office of the Executive
Secretary issued EO 465 creating the Philippine Halal Certification
Scheme and designating respondent OMA to oversee its
implementation. Under the EO, respondent OMA has the
exclusive authority to issue halal certificates and perform other
related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns NGOs
Issuing Illegal 'Halal' Certification" was published in the Manila
Bulletin, a newspaper of general circulation. In said article, OMA
warned Muslim consumers to buy only products with its official
been subjected to careful analysis and therefore could contain
pork or its derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only
from OMA lest they violate EO 46 and RA 4109.6 As a result,
petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional
provision on the separation of Church and State.7It is
unconstitutional for the government to formulate policies and
guidelines on the halal certification scheme because said scheme
is a function only religious organizations, entity or scholars can
lawfully and validly perform for the Muslims. According to
petitioner, a food product becomes halal only after the
performance of Islamic religious ritual and prayer. Thus, only
practicing Muslims are qualified to slaughter animals for food. A
government agency like herein respondent OMA cannot therefore

perform a religious function like certifying qualified food
products as halal.
Petitioner also maintains that the respondents violated Section 10,
Article III of the 1987 Constitution which provides that "(n)o law
impairing the obligation of contracts, shall be passed." After the
subject EO was implemented, food manufacturers with existing
contracts with petitioner ceased to obtain certifications from the
latter.
Moreover, petitioner argues that the subject EO violates Sections
15 and 16 of Article XIII of the 1987 Constitution which
respectively provide:
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
Sec. 15. The State shall respect the role of independent people's
organizations to enable the people to pursue and protect, within
the democratic framework, their legitimate and collective interests
and aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with
identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to
effective and reasonable participation at all levels of social,
political, and economic decision-making shall not be abridged.
The State shall, by law, facilitate, the establishment of adequate
consultation mechanisms.
According to petitioner, the subject EO was issued with utter
haste and without even consulting Muslim people's organizations
like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO
697) "to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs,
customs, traditions, and institutions."8 OMA deals with the
societal, legal, political and economic concerns of the Muslim
community as a "national cultural community" and not as a
religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that
OMA does not intrude into purely religious matters lest it violate
the non-establishment clause and the "free exercise of religion"
provision found in Article III, Section 5 of the 1987 Constitution. 9
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "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."10
Without doubt, classifying a food product as halal is a religious
function because the standards used are drawn from the Qur'an
and Islamic beliefs. By giving OMA the exclusive power to
classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret
for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its
own interpretation of the Qur'an and Sunnah on halal food.
To justify EO 46's intrusion into the subject religious activity, the
Solicitor General argues that the freedom of religion is
subservient to the police power of the State. By delegating to
OMA the authority to issue halal certifications, the government
allegedly seeks to protect and promote the muslim Filipinos' right
to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the
infringement of religious freedom.11 If the government fails to
show the seriousness and immediacy of the threat, State intrusion
is constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the
government to deprive muslim organizations, like herein
petitioner, of their religious right to classify a product as halal,
even on the premise that the health of muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to
issue halal certifications. The protection and promotion of the
muslim Filipinos' right to health are already provided for in
existing laws and ministered to by government agencies charged
with ensuring that food products released in the market are fit for
human consumption, properly labeled and safe. Unlike EO 46,
these laws do not encroach on the religious freedom of muslims.
Section 48(4) of the Administrative Code of 1987 gives to the
National Meat Inspection Commission (NMIC) of the Department
of Agriculture (DOA) the power to inspect slaughtered animals
intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known
as "The Consumer Act of 1992," gives to certain government
departments the duty to protect the interests of the consumer,
promote his general welfare and to establish standards of conduct
5
for business and industry.12 To this end, a food product, before its
distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department
inspects and certifies its compliance with quality and safety
standards.13
One such government agency designated by RA 7394 is the
Bureau of Food and Drugs (BFD) of the Department of Health
(DOH). Under Article 22 of said law, BFD has the duty to
promulgate and enforce rules and regulations fixing and
establishing a reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers for food.
The BFD also ensures that food products released in the market
are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of
Trade and Industry (DTI) is tasked to protect the consumer against
deceptive, unfair and unconscionable sales acts or practices as
defined in Article 50.15 DTI also enforces compulsory labeling
and fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents
of consumer products and to facilitate his comparison of the value
of such products.16
With these regulatory bodies given detailed functions on how to
screen and check the quality and safety of food products, the
perceived danger against the health of muslim and non-muslim
Filipinos alike is totally avoided. Of great help are the provisions
on labeling of food products (Articles 74 to 85)17 of RA 7394. In
fact, through these labeling provisions, the State ably informs the
consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the
State indirectly aids muslim consumers in differentiating food
from non-food products. The NMIC guarantees that the meat sold
in the market has been thoroughly inspected and fit for
consumption. Meanwhile, BFD ensures that food products are
properly categorized and have passed safety and quality standards.
Then, through the labeling provisions enforced by the DTI,
muslim consumers are adequately apprised of the products that
contain substances or ingredients that, according to their Islamic
beliefs, are not fit for human intake. These are the non-secular
steps put in place by the State to ensure that the muslim
consumers' right to health is protected. The halal certifications
issued by petitioner and similar organizations come forward as
the official religious approval of a food product fit for muslim
consumption.

We do not share respondents' apprehension that the absence of a
central administrative body to regulate halal certifications might
give rise to schemers who, for profit, will issue certifications for
products that are not actually halal. Aside from the fact that
muslim consumers can actually verify through the labels whether
a product contains non-food substances, we believe that they are
discerning enough to know who the reliable and competent
certifying organizations in their community are. Before
purchasing a product, they can easily avert this perceived evil by a
diligent inquiry on the reliability of the concerned certifying
organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s.
2000, is hereby declared NULL AND VOID. Consequently,
respondents are prohibited from enforcing the same.
SO ORDERED.
THIRD DIVISION
G.R. No. 144801. March 10, 2005
DOMINADOR L. TARUC, WILBERTO DACERA,
NICANOR GALANIDA, RENERIO CANTA, JERRY
CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA,
LEONARDO DIZON, SALVADOR GELSANO and BENITO
LAUGO, Petitioners,  (3) for threatening to forcibly occupy the Parish Church causing
vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR.
RUSTOM FLORANO and DELFIN BORDAS, Respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of
the decision of the Court of Appeals in CA-G.R. SP No. 45480
which reversed and set aside the decision of the Regional Trial
Court of Surigao City, Branch 32 in Civil Case No. 4907 and
ordered said case dismissed for lack of jurisdiction.
The antecedents show that petitioners were lay members of the
Philippine Independent Church (PIC) in Socorro, Surigao del
Norte. Respondents Porfirio de la Cruz and Rustom Florano were
the bishop and parish priest, respectively, of the same church in
that locality. Petitioners, led by Dominador Taruc, clamored for
the transfer of Fr. Florano to another parish but Bishop de la Cruz
denied their request. It appears from the records that the family of
Fr. Florano’s wife belonged to a political party opposed to
petitioner Taruc’s, thus the animosity between the two factions
with Fr. Florano being identified with his wife’s political camp.
Bishop de la Cruz, however, found this too flimsy a reason for
transferring Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro,
Surigao del Norte worsened when petitioner Taruc tried to
organize an open mass to be celebrated by a certain Fr. Renato Z.
Ambong during the town fiesta of Socorro. When Taruc informed
Bishop de la Cruz of his plan, the Bishop tried to dissuade him
from pushing through with it because Fr. Ambong was not a
member of the clergy of the diocese of Surigao and his credentials
as a parish priest were in doubt. The Bishop also appealed to
petitioner Taruc to refrain from committing acts inimical and
prejudicial to the best interests of the PIC. He likewise advised
petitioners to air their complaints before the higher authorities of
PIC if they believed they had valid grievances against him, the
parish priest, the laws and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying
out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and
his sympathizers proceeded to hold the open mass with Fr.
Ambong as the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners
expelled/excommunicated from the Philippine Independent
Church for reasons of:
(1) disobedience to duly constituted authority in the Church;
(2) inciting dissension, resulting in division in the Parish of Our
Mother of Perpetual Help, Iglesia Filipina Independiente, Socorro,
Surigao del Norte when they celebrated an open Mass at the Plaza
on June 19, 1996; and
anxiety and fear among the general membership. 1
Petitioners appealed to the Obispo Maximo and sought
reconsideration of the above decision. In his letter to Bishop de la
Cruz, the Obispo Maximo opined that Fr. Florano should step
down voluntarily to avert the hostility and enmity among the
members of the PIC parish in Socorro but stated that:
… I do not intervene in your diocesan decision in asking Fr.
Florano to vacate Socorro parish….2
In the meantime, Bishop de la Cruz was reassigned to the diocese
of Odmoczan and was replaced by Bishop Rhee M. Timbang.
Like his predecessor, Bishop Timbang did not find a valid reason
for transferring Fr. Florano to another parish. He issued a circular
denying petitioners’ persistent clamor for the transfer/re-
assignment of Fr. Florano. Petitioners were informed of such
denial but they continued to celebrate mass and hold other
religious activities through Fr. Ambong who had been restrained
from performing any priestly functions in the PIC parish of
Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners
filed a complaint for damages with preliminary injunction against
Bishop de la Cruz before the Regional Trial Court of Surigao
City, Branch 32. They impleaded Fr. Florano and one Delfin T.
Bordas on the theory that they conspired with the Bishop to have
6
petitioners expelled and excommunicated from the PIC. They
contended that their expulsion was illegal because it was done
without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower
court on the ground of lack of jurisdiction but it was denied. Their
motion for reconsideration was likewise denied so they elevated
the case to the Court of Appeals.
The appellate court reversed and set aside the decision of the
court a quo and ordered the dismissal of the case without
prejudice to its being refiled before the proper forum. It held:
… We find it unnecessary to deal on the validity of the
excommunication/expulsion of the private respondents (Taruc, et
al.), said acts being purely ecclesiastical matters which this Court
considers to be outside the province of the civil courts. …
"Civil Courts will not interfere in the internal affairs of a religious
organization except for the protection of civil or property rights.
Those rights may be the subject of litigation in a civil court, and
the courts have jurisdiction to determine controverted claims to
the title, use, or possession of church property." (Ibid., p.466)
… Obviously, there was no violation of a civil right in the present
case. …
Ergo, this Court is of the opinion and so holds that the instant case
does not involve a violation and/or protection of a civil or
property rights in order for the court a quo to acquire jurisdiction
in the instant case.3
Petitioners appealed from the above decision but their petition
was denied. Their motion for reconsideration was likewise denied,
hence, this appeal.
The only issue to be resolved in this case is whether or not the
courts have jurisdiction to hear a case involving the
expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution
specifically provides that:
Sec. 5. No law shall be made respecting an establishment of
religion or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.

In our jurisdiction, we hold the Church and the State to be
separate and distinct from each other. "Give to Ceasar what is
Ceasar’s and to God what is God’s." We have, however, observed
as early as 1928 that:
upon the examination of the decisions it will be readily apparent
that cases involving questions relative to ecclesiastical rights have
always received the profoundest attention from the courts, not
only because of their inherent interest, but because of the far
reaching effects of the decisions in human society. [However,]
courts have learned the lesson of conservatism in dealing with
such matters, it having been found that, in a form of government
where the complete separation of civil and ecclesiastical
authority is insisted upon, the civil courts must not allow
themselves to intrude unduly in matters of an ecclesiastical
nature.4 (italics ours)
We agree with the Court of Appeals that the
expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the
officials, and the laws and canons, of said institution/organization.
It is not for the courts to exercise control over church authorities
in the performance of their discretionary and official functions.
Rather, it is for the members of religious institutions/organizations
to conform to just church regulations. In the words of Justice
Samuel F. Miller5:
… all who unite themselves to an ecclesiastical body do so with
an implied consent to submit to the Church government and they
are bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,6 we
enunciated the doctrine that in disputes involving religious
institutions or organizations, there is one area which the Court
should not touch: doctrinal and disciplinary differences. 7 Thus,
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.(emphasis ours)
We would, however, like to comment on petitioners’ claim that
they were not heard before they were expelled from their church.
The records show that Bishop de la Cruz pleaded with petitioners
several times not to commit acts inimical to the best interests of
PIC. They were also warned of the consequences of their actions,
among them their expulsion/excommunication from PIC. Yet,
these pleas and warnings fell on deaf ears and petitioners went
ahead with their plans to defy their Bishop and foment hostility
and disunity among the members of PIC in Socorro, Surigao del
Norte. They should now take full responsibility for the chaos and
dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.
EN BANC
March 7, 2017
A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF
RELIGIOUS RITUALS AT THE HALL OF JUSTICE
BUILDING IN QUEZON CITY
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion.
Some put their faith in a god different from ours, while some may
not believe in a god at all. Nevertheless, despite the
inconveniences this difference may cause us, we must accept it
unconditionally for only upon acceptance of the fact that we are
different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by
Tony Q. Valenciano (Valenciano) and addressed to then Chief
Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported
that the basement of the Hall of Justice of Quezon City (QC) had
been converted into a Roman Catholic Chapel, complete with
offertory table, images of Catholic religious icons, a canopy, an
electric organ, and a projector. He believed that such practice
violated the constitutional provision on the separation of Church
and State 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.
Valenciano further averred that the holding of masses at the
basement of the QC Hall of Justice showed that it tended to favor
Catholic litigants; that the rehearsals of the choir caused great
disturbance to other employees; that the public could no longer
use the basement as resting place; that the employees and litigants
of the Public Attorney's Office (PAO), Branches 82 and 83 of the
Regional Trial Court (RTC), Legal Library, Philippine Mediation
Center, and Records Section of the Office of the Clerk of
Court (OCC) could not attend to their personal necessities such as
going to the lavatories because they could not traverse the
basement between 12:00 o'clock noontime and 1: 15 o'clock in the
afternoon; that the court employees became hostile toward each
7
other as they vied for the right to read the epistle; and that the
water supply in the entire building was cut off during the mass
because the generator was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice
Puno referred Valenciano 's letter to then Deputy Court
Administrator (DCA) and Officer-in-Charge of the Office on
Halls of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11,
2009, referred the letter to Executive Judge Teodoro A.
Bay (Judge Bay) of the RTC and to Executive Judge Luis Zenon
Q. Maceren (Judge Maceren) of the Metropolitan Trial
Court (MeTC) for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge
Maceren clarified that the basement of the QC Hall of Justice was
known as the prayer corner. He opined that the use of the said area
for holding masses did not violate the constitutional prohibition
against the use of public property for religious purposes because
the religious character of such use was merely incidental to a
temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay
manifested that he was due to compulsorily retire on April 29,
2009, and he was taking a leave of absence prior to such date to
concentrate in resolving cases submitted for decision before his
sala and requested that then Vice-Executive Judge Jaime N.
Salazar (Judge Salazar) be assigned to further investigate, study,
and make recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final
resolution of the case, daily masses be permitted to continue,
provided that: (1) the mass be limited to thirty (30) minutes; (2)
no loud singing be allowed so as not to disturb others; and (3) the
inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno
referred another letter of Valenciano, dated May 13, 2009, to
DCA Dujua for appropriate action, as he complained that masses
continued to be held at the basement of the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter, 7 praying that
rules be promulgated by the Court to put a stop to the holding of
Catholic masses, or any other religious rituals, at the QC Hall of
Justice and in all other halls of justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23,
2010 letter of Valenciano and referred the matter to the Office of

the Court Administrator (OCA) for evaluation, report and
recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA,
through then Assistant Court Administrator (ACA) Jenny Lind R.
AldecoaDelorino (now Deputy Court Administrator), referred the
letters of Valenciano to the incumbent RTC Executive Judge
Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC
Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun,
Jr. informed the Court that his office had already implemented
measures to address Valenciano's complaints. He reported that
masses were shortened to a little over thirty (30) minutes; that it
was only during special holy days of obligation when the
celebration of mass went beyond one (1) o'clock in the afternoon;
that the pathways leading to the lavatories were open and could be
used without obstruction; that there was never an instance where
the actions of court personnel, who were vying to read the epistle
during mass, caused back-biting and irritation among themselves;
that the water generator had been broken beyond repair and
decommissioned since December 2009; and that the court
employees prepared for the mass before the day officially started,
so that the performance of their official duties in court was not
hampered.
In her letter,11 Judge Lutero reported that Catholic masses were
being held only during lunch breaks and did not disturb court
proceedings; that the basement of the QC Hall of Justice could
still be used as waiting area for the public; that court personnel
and the public were never physically prevented from reaching the
lavatories during mass as there was a clear path from the public
offices leading to the comfort rooms; that water service
interruptions were caused by maintenance problems and not
because the water pump was being shut off during mass; and that
the elevators could not be used during mass because elevator
attendants took their lunch break from twelve (12) o'clock to one
(1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public
places which the Constitution prohibited, but the passage of laws
or the use of public funds for the purpose of establishing a religion
or prohibiting the free exercise thereof. She conveyed the fact that
no law or rule had been passed and that no public funds had been
appropriated or used to support the celebration of masses. She
added that the holding of Catholic masses did not mean that
Catholics had better chances of obtaining favorable resolutions
from the court.
Accordingly, Judge Lutero recommended that the holding of
masses at the basement of the QC Hall of Justice be allowed to
continue considering that it was not inimical to the interests of the
court employees and the public.
The OCA Report and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed
that the practical inconveniences cited by Valenciano were
unfounded. It, thus, recommended that his letter-complaints, dated
January 6, 2009, May 13, 2009 and March 23, 2010, be dismissed
for lack of merit and that the RTC and MeTC Executive Judges of
QC be directed to closely regulate and monitor the holding of
masses and other religious practices within the premises of the QC
Hall of Justice.
The OCA opined that the principle of separation of Church and
State, particularly with reference to the Establishment Clause,
ought not to be interpreted according to the rigid standards of
separation; that the neutrality of the State on religion should be
benevolent because religion was an ingrained part of society and
played an important role in it; and that the State, therefore, instead
of being belligerent (in the case of Strict Separation) or being
aloof (in the case of Strict Neutrality) towards religion should
instead interact and forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal
religion clauses in our Constitution were not limited to the
Establishment Clause, which created a wall between the Church
and the State, but was quickly followed by the declaration of the
Free Exercise Clause, which protected the right of the people to
practice their religion. In effect, the standard of Benevolent
Neutrality/Accommodation balanced the interest of the State
through the Establishment Clause, and the interest and right of the
individual to freely exercise his religion as guaranteed by the Free
Exercise Clause.14
The OCA observed that the present controversy did not involve a
national or local law or regulation in conflict with the Free
Exercise Clause. On the contrary, Valenciano was merely
questioning the propriety of holding religious masses at the
basement of the QC Hall of Justice, which was nothing more than
an issue of whether the said religious practice could be
accommodated or not. It ended up concluding that based on
prevailing jurisprudence, as well as the interpretations given to the
religion clauses of the 1987 Constitution, there was nothing
constitutionally abhorrent in allowing the continuation of the
masses.15
8
The OCA added that by allowing or accommodating the
celebration of Catholic masses within the premises of the QC Hall
of Justice, the Court could not be said to have established Roman
Catholicism as an official religion or to have endorsed the said
religion, for the reason that it also allowed other religious
denominations to practice their religion within the courthouses. 16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE
BASEMENT OF THE QUEZON CITY HALL OF JUSTICE
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE AS WELL AS THE
CONSTITUTIONAL PROHIBITION AGAINST
APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR
THE BENEFIT OF ANY SECT, CHURCH, DENOMINATION,
SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the
OCA and denies the prayer of Valenciano that the holding of
religious rituals of any of the world's religions in the QC Hall of
Justice or any halls of justice all over the country be prohibited.
The Holding of Religious Rituals in the Halls of Justice does not
Amount to a Union of Church and State
As earlier stated, Valenciano is against the holding of religious
rituals in the halls of justice on the ground that it violates the
constitutional provision on the separation of Church and State 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. Indeed, Section 6, Article II of the
1987 Constitution provides:
The separation of Church and State shall be inviolable. 17
The Court once pronounced 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." 18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying,
"Strong fences make good neighbors." The idea is to delineate the
boundaries between the two institutions and, thus, avoid
encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render
therefore unto Caesar the things that are Caesar's and unto God
the things that are God's."19

This, notwithstanding, the State still recognizes the inherent right
of the people to have some form of belief system, whether such
may be belief in a Supreme Being, a certain way of life, or even
an outright rejection of religion. Our very own Constitution
recognizes the heterogeneity and religiosity of our people as
reflected in lmbong v. Ochoa,20as follows:
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown
us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is
tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally
believe in a deity, whatever they conceived Him to be, and to
Whom they called for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime
of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty
God" manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the
State recognizes with respect the influence of religion in so far as
it instills into the mind the purest principles of morality.
Moreover, in recognition of the contributions of religion to
society, the 1935, 1973 and 1987 Constitutions contain benevolent
and accommodating provisions towards religions such as tax
exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in
public schools. [Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how
religion could serve as a motivating force behind each person's
actions:
Religious freedom, however, as a constitutional mandate is not
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. Our Constitution and laws exempt from
taxation properties devoted exclusively to religious purposes (sec.
14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. Ordinance appended thereto; Assessment Law, sec. 344,
par [c], Adm. Code) sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is
assigned to the armed forces or to any penal institution, orphanage
or leprosarium xxx. Optional religious instruction in the public
schools is by constitutional mandate allowed xxx. Thursday and
Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays are made legal holidays (sec. 29, Adm. Code) because of
the secular idea that their observance is conducive to beneficial
moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are
considered crimes against the fundamental laws of the state
xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been
enshrined in Section 5, Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference,
shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "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."23
"The right to religious profession and worship has a two-fold
aspect - freedom to believe and freedom to act on one's beliefs.
The first is absolute as long as the belief is confined within the
realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public
9
welfare."24 Justice Isagani A. Cruz explained these two (2)
concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about
life and death; worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the divinity of God
or of any being that appeals to his reverence; recognize or deny
the immortality of his soul - in fact, cherish any religious
conviction as he and he alone sees fit. However absurd his beliefs
may be to others, even if they be hostile and heretical to the
majority, he has full freedom to believe as he pleases. He may not
be required to prove his beliefs. He may not be punished for his
inability to do so. Religion, after all, is a matter of faith. "Men
may believe what they cannot prove." Every one has a right to his
beliefs and he may not be called to account because he cannot
prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or
omissions that affect the public, his freedom to do so becomes
subject to the authority of the State. As great as this liberty may
be, religious freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the
rights of others.
It is error to think that the mere invocation of religious freedom
will stalemate the State and render it impotent in protecting the
general welfare. The inherent police power can be exercised to
prevent religious practices inimical to society. And this is true
even if such practices are pursued out of sincere religious
conviction and not merely for the purpose of evading the
reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The 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."25
Allowing religion to flourish is not contrary to the principle of
separation of Church and State. In fact, these two principles are in
perfect harmony with each other.
The State is aware of the existence of religious movements whose
members believe in the divinity of Jose Rizal. Yet, it does not
implement measures to suppress the said religious sects. Such
inaction or indifference on the part of the State gives meaning to
the separation of Church and State, and at the same time,

recognizes the religious freedom of the members of these sects to
worship their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express
their worship through the holy mass and to stop these would be
tantamount to repressing the right to the free exercise of their
religion. Our Muslim brethren, who are government employees,
are allowed to worship their Allah even during office hours inside
their own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them
from working on a Saturday. Even Christians have been allowed
to conduct their own bible studies in their own offices. All these
have been allowed in respect of the workers' right to the free
exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not
equivalent to a fusion of Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its
way if there is a compelling state interest. To successfully invoke
compelling state interest, it must be demonstrated that the masses
in the QC Hall of Justice unduly disrupt the delivery of public
services or affect the judges and employees in the performance of
their official functions. In Estrada v. Escritor,27 the Court
expounded on the test as follows:
The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different
effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental .right
that enjoys a preferred position in the hierarchy of rights - "the
most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and religious
liberty, reasonableness shall be the guide. The "compelling state
interest" serves the purpose of revering religious liberty while at
the same time affording protection to the paramount interests of
the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without
which, religious liberty will not be preserved.137 [Citations
omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses
were being conducted only during noon breaks and were not
disruptive of public services. The court proceedings were not
being distracted or interrupted and that the performance of the
judiciary employees were not being adversely affected. Moreover,
no Civil Service rules were being violated. As there has been no
detrimental effect on the public service or prejudice to the State,
there is simply no state interest compelling enough to prohibit the
exercise of religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or
tolerant. On November 13, 1981, the CSC came out with
Resolution No. 81-1277, which provided, among others, that
"during Friday, the Muslim pray day, Muslims are excused from
work from 10:00 o'clock in the morning to 2:00 o'clock in the
afternoon." The Court struck this down28 as not sanctioned by the
law. It wrote:
To allow the Muslim employees in the Judiciary to be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim
Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then,
they would be rendering service twelve (12) hours less than that
required by the civil service rules for each month. Further, this
would encourage other religious denominations to request for
similar treatment.
The performance of religious practices, whether by the Muslim
employees or those belonging to other religious denominations,
should not prejudice the courts and the public. Indeed, the
exercise of religious freedom does not exempt anyone from
compliance with reasonable requirements of the law, including
civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of
religion, the State adopts a policy of
accommodation. Accommodation is a recognition of the reality
10
that some governmental measures may not be imposed on a
certain portion of the population for the reason that these
measures are contrary to their religious beliefs. As long as it can
be shown that the exercise of the right does not impair the public
welfare, the attempt of the State to regulate or prohibit such right
would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the
government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate
the exercise of, a person's or institution's religion. As Justice
Brennan explained, the "government [may] take religion into
account ... to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary
religious exercise may flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld
the exemption of members of 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
affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the
petitioners, who were members of the Jehovah 's
Witnesses, refused to salute the flag, sing the national anthem, and
recite the patriotic pledge for it is their belief that those were acts
of worship or religious devotion, which they could not
conscientiously give to anyone or anything except God. The Court
accommodated them and granted them an exemption from
observing the flag ceremony out of respect for their religious
beliefs.
Further, several laws have been enacted to accommodate religion.
The Revised Administrative Code of 1987 has declared Maundy
Thursday, Good Friday, and Christmas Day as regular holidays.
Republic Act (R.A.) No. 9177 proclaimed the FIRST Day
of Shawwal, the tenth month of the Islamic Calendar, a national
holiday for the observance of Eidul Fitr (the end of Ramadan).
R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth
month of the Islamic Calendar, a national holiday for the
observance of Eidul Adha. Presidential Decree (P.D.) No. 1083,
otherwise known as the Code of Muslim Personal Laws of the

Philippines, expressly allows a Filipino Muslim to have more than
one (1) wife and exempts him from the crime of bigamy
punishable under Revised Penal Code (RPC). The same Code
allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291,
as amended by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all
Muslim employees in the national government, government-
owned or controlled corporations, provinces, cities, municipalities
and other instrumentalities shall observe office hours from seven-
thirty in the morning (7:30 a.m.) to three-thirty in the afternoon
(3:30 p.m.) without lunch break or coffee breaks, and that there
shall be no diminution of salary or wages, provided, that the
employee who is not fasting is not entitled to the benefit of this
provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277,
dated November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the
Muslims, the Civil Service official time of 8 o'clock to 12 o'clock
and 1 o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30
P.M. without noon break and the difference of 2 hours is not
counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the
Different Courts in Iligan City (Re: Office Hours), 34the Court
recognized that the observance of Ramadan as integral to the
Islamic faith and allowed Muslim employees in the Judiciary to
hold flexible office hours from 7:30 o'clock in the morning to 3:30
o'clock in the afternoon without any break during the period. This
is a clear case of accommodation because Section 5, Rule XVII of
the Omnibus Rules Implementing Book V of E.0. No. 292,
enjoins all civil servants, of whatever religious denomination, to
render public service of no less than eight (8) hours a day or forty
(40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate
that "no law shall be made respecting an establishment of
religion,"35 otherwise known as the non-establishment clause.
Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to
understand each of these concepts by placing them in the Filipino
society's perspective.
The non-establishment clause reinforces the wall of separation
between Church and State. It simply means that the State cannot
set up a Church; nor pass laws which aid one religion, aid all
religion, or prefer one religion over another nor force nor
influence a person to go to or remain away from church against
his will or force him to profess a belief or disbelief in any
religion; that the state cannot punish a person for entertaining or
professing religious beliefs or disbeliefs, for church attendance or
nonattendance; that no tax in any amount, large or small, can be
levied to support any religious activity or institution whatever
they may be called or whatever form they may adopt or teach or
practice religion; that the state cannot openly or secretly
participate in the affairs of any religious organization or group and
vice versa.36 Its minimal sense is that the state cannot establish or
sponsor an official religion.37
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do. They can neither cause the government to adopt
their particular doctrines as policy for everyone, nor can they
cause the government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular religion and,
thus, establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government
neutrality in religious matters. Such government neutrality may be
summarized in four general propositions: (1) Government must
not prefer one religion over another or religion over irreligion
because such preference would violate voluntarism and breed
dissension; (2) Government funds must not be applied to religious
purposes because this too would violate voluntarism and breed
interfaith dissension; (3) Government action must not aid religion
because this too can violate voluntarism and breed interfaith
dissension; [and] (4) Government action must not result in
excessive entanglement with religion because this too can violate
voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State.
Accommodation, on the other hand, is passive. In the former, the
State becomes involved through the use of government resources
with the primary intention of setting up a state religion. In the
latter, the State, without being entangled, merely gives
consideration to its citizens who want to freely exercise their
religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario
G. Davide, Jr., the Office of the Chief Attorney recommended to
deny, on constitutional grounds, the request of Rev. Fr. Carlo M.
Ilagan to hold a oneday vigil in honor of the Our Lady of
Caysasay within the premises of the Court. Such controversy must
be distinguished from the present issue in that with respect to the
former, a Catholic priest was the one who requested for the vigil.
Moreover, in that case, the vigil would take one (1) whole
11
working day; whereas in this case, the masses are held at the
initiative of Catholic employees and only during the thirty-minute
lunch break.
Guided by the foregoing, it is our considered view that the holding
of Catholic masses at the basement of the QC Hall of Justice is
not a case of establishment, but merely accommodation.
First, there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that judiciary
employees attend the Catholic masses at the
basement. Second, when judiciary employees attend the masses to
profess their faith, it is at their own initiative as they are there on
their own free will and volition, without any coercion from the
judges or administrative officers. Third, no government funds are
being spent because the lightings and airconditioning continue to
be operational even if there are no religious rituals
there. Fourth, the basement has neither been converted into a
Roman Catholic chapel nor has it been permanently appropriated
for the exclusive use of its faithful. Fifth, the allowance of the
masses has not prejudiced other religions.
No Appropriation of Public Money or Property for the Benefit of
any Church
Section 29 (2), Article VI of the 1987 Constitution 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, or other religious
teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular
purpose."40 "Appropriate" means "to prescribe a particular use for
particular moneys or to designate or destine a fund or property for
a distinct use, or for the payment of a particular demand." 41
Under the principle of noscitur a sociis, where a particular word
or phrase is ambiguous in itself or is equally susceptible of
various meanings, its correct construction may be made clear and
specific by considering the company of words in which it is found
or with which it is associated. This is because a word or phrase in
a statute is always used in association with other words or phrases,
and its meaning may, thus, be modified or restricted by the latter.
The particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of
the statute must be considered in fixing the meaning of any of its
parts and in order to produce a harmonious whole. A statute must

be so construed as to harmonize and give effect to all its
provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to
mean that what is prohibited is the use of public money or
property for the sole purpose of benefiting or supporting any
church. The prohibition contemplates a scenario where the
appropriation is primarily intended for the furtherance of a
particular church.
It has also been held that the aforecited constitutional provision
"does not inhibit the use of public property for religious purposes
when the religious character of such use is merely incidental to a
temporary use which is available indiscriminately to the public in
general." Hence, a public street may be used for a religious
procession even as it is available for a civic parade, in the same
way that a public plaza is not barred to a religious rally if it may
also be used for a political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the
manner of appropriation of public money or property, not as to
whether a particular act involves a direct or a mere incidental
benefit to any church. Otherwise, the framers of the Constitution
would have placed it before "use, benefit or support" to describe
the same. Even the exception to the same provision bolsters this
interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other
religious teacher, or dignitary because they rendered service in the
armed forces, or to any penal institution, or government
orphanage or leprosarium. That a priest belongs to a particular
church and the latter may have benefited from the money he
received is of no moment, for the purpose of the payment of
public funds is merely to compensate the priest for services
rendered and for which other persons, who will perform the same
services will also be compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole.44 As such, the foregoing interpretation
finds support in the
Establishment Clause, which is as clear as daylight in stating that
what is proscribed is the passage of any law which tends to
establish a religion, not merely to accommodate the free exercise
thereof.
The Constitution even grants tax exemption to properties actually,
directly and exclusively devoted to religious purposes. 45 Certainly,
this benefits the religious sects for a portion of what could have
been collected for the benefit of the public is surrendered in their
favor.
In Manosca v. CA,46 a parcel of land located in Taguig was
determined by the National Historical Institute to be the birthsite
of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic
then sought to expropriate the said property. The exercise of the
power of eminent domain was questioned on the ground that it
would only benefit members of Iglesia ni Cristo. The Court
upheld the legality of the expropriation, viz.:
The practical reality that greater benefit may be derived by
members of the Iglesia ni Cristo than by most others could well
be true but such a peculiar advantage still remains to be merely
incidental and secondary in nature.47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps
commemorative of the Thirty-third International Eucharistic
Congress was assailed on the ground that it violated the
constitutional prohibition against the appropriation of public
money or property for the benefit of any church. In ruling that
there was no such violation, the Court held:
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.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated,
applied or employed for the sole purpose of supporting the Roman
Catholics.
Further, it has not been converted into a Roman Catholic chapel
for the exclusive use of its faithful contrary to the claim of
Valenciana. Judge
Maceren reported that the basement is also being used as a public
waiting area for most of the day and a meeting place for different
employee organizations. The use of the area for holding masses is
limited to lunch break period from twelve (12) o'clock to one (1)
o'clock in the afternoon. Further, Judge Sagun, Jr. related that
masses run for just a little over thirty (30) minutes. It is, therefore,
clear that no undue religious bias is being committed when the
subject basement is allowed to be temporarily used by the
Catholics to celebrate mass, as the same area can be used by other
groups of people and for other purposes.49 Thus, the basement of
12
the QC Hall of Justice has remained to be a public property
devoted for public use because the holding of Catholic masses
therein is a mere incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate
and closely monitor the holding of masses and other religious
practices within the courts does not promote excessive
collaboration between courts and various religions. On the
contrary, this is necessary to ensure that there would be no
excessive entanglement.
To disallow the holding of religious rituals within halls of justice
would set a dangerous precedent and commence a domino effect.
Strict separation, rather than benevolent
neutrality/accommodation, would be the norm. Thus, the
establishment of Shari'a courts, the National Commission for
Muslim Filipinos, and the exception of Muslims from the
provisions of the RPC relative to the crime of bigamy would all be
rendered nugatory because of strict separation. The exception of
members of Iglesia ni Cristo from joining a union or the non-
compulsion recognized in favor of members of the Jehovah's
Witnesses from doing certain gestures during the flag ceremony,
will all go down the drain simply because we insist on strict
separation.
That the holding of masses at the basement of the QC Hall of
Justice may offend non-Catholics is no reason to proscribe it. Our
Constitution ensures and mandates an unconditional tolerance,
without regard to whether those who seek to profess their faith
belong to the majority or to the minority. It is emphatic in saying
that "the free exercise and enjoyment of religious profession and
worship shall be without discrimination or preference."
Otherwise, accommodation or tolerance would just be mere lip
service.
One cannot espouse that the constitutional freedom of religion
ensures tolerance, but, in reality, refuses to practice what he
preaches. One cannot ask for tolerance when he refuses to do the
same for others.
In fine, the Court denies the plea that the holding of Catholic
masses at the basement of the QC Hall of Justice be prohibited
because the said practice does not violate the constitutional
principle of separation of Church and State and the constitutional
prohibition against appropriation of public money or property for
the benefit of a sect, church, denomination, or any other system of
religion.
WHEREFORE, the Court resolves to:

1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated
January 6, 2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the
Office on Halls of Justice, containing photocopies and certified
photocopies of previous actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of
Quezon City Regional Trial Court Executive Judge Fernando T.
Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City
Metropolitan Trial Court Executive Judge Caridad M. Walse-
Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the
holding of religious rituals in the QC Hall of Justice and in all
halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City
to REGULATE and CLOSELY MONITOR the holding of
masses and other religious practices within the Quezon City Hall
of Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public
service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a
permanent place for worship for the benefit of any and all
religious groups. There shall also be no permanent display of
religious icons in all halls of justice in the country. In case of
religious rituals, religious icons and images may be displayed but
their presentation is limited only during the celebration of such
activities so as not to offend the sensibilities of members of other
religious denominations or the non-religious public. After any
religious affair, the icons and images shall be hidden or concealed
from public view.
The disposition in this administrative matter shall apply to all
halls of justice in the country. Other churches, religious
denominations or sects are entitled to the same rights, privileges,
and practices in every hall of justice. In other buildings not owned
or controlled by the Judiciary, the Executive Judges should
coordinate and seek approval of the building
owners/administrators accommodating their courts.
SO ORDERED.
SECOND DIVISION
G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, plaintiff-appellee,  action for injunction, docketed as Civil Case No. 58894 in the
vs. ELIZALDE ROPE WORKERS' UNION and ELIZALDE
ROPE FACTORY, INC., defendants, ELIZALDE ROPE
WORKERS' UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision
of the Court of First Instance of Manila in its Civil Case No.
58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a
member of the religious sect known as the "Iglesia ni Cristo", had
been in the employ of the Elizalde Rope Factory, Inc. (hereinafter
referred to as Company) since 1958. As such employee, he was a
member of the Elizalde Rope Workers' Union (hereinafter referred
to as Union) which had with the Company a collective bargaining
agreement containing a closed shop provision which reads as
follows:
Membership in the Union shall be required as a condition of
employment for all permanent employees workers covered by this
Agreement.”
The collective bargaining agreement expired on March 3, 1964
but was renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior
to its amendment by Republic Act No. 3350, the employer was
not precluded "from making an agreement with a labor
organization to require as a condition of employment membership
therein, if such labor organization is the representative of the
employees." On June 18, 1961, however, Republic Act No. 3350
was enacted, introducing an amendment to — paragraph (4)
subsection (a) of section 4 of Republic Act No. 875, as follows: ...
"but such agreement shall not cover members of any religious
sects which prohibit affiliation of their members in any such labor
organization".
Being a member of a religious sect that prohibits the affiliation of
its members with any labor organization, Appellee presented his
resignation to appellant Union in 1962, and when no action was
taken thereon, he reiterated his resignation on September 3, 1974.
Thereupon, the Union wrote a formal letter to the Company
asking the latter to separate Appellee from the service in view of
the fact that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his
counsel that unless the Appellee could achieve a satisfactory
arrangement with the Union, the Company would be constrained
to dismiss him from the service. This prompted Appellee to file an
Court of First Instance of Manila to enjoin the Company and the
Union from dismissing Appellee.1 In its answer, the Union
invoked the "union security clause" of the collective bargaining
agreement; assailed the constitutionality of Republic Act No.
3350; and contended that the Court had no jurisdiction over the
case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and
13
(e).2 Upon the facts agreed upon by the parties during the pre-trial
conference, the Court a quo rendered its decision on August 26,
1965, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining
the defendant Elizalde Rope Factory, Inc. from dismissing the
plaintiff from his present employment and sentencing the
defendant Elizalde Rope Workers' Union to pay the plaintiff P500
for attorney's fees and the costs of this action.3
From this decision, the Union appealed directly to this Court on
purely questions of law, assigning the following errors:
I. That the lower court erred when it did not rule that Republic Act
No. 3350 is unconstitutional.
II. That the lower court erred when it sentenced appellant herein
to pay plaintiff the sum of P500 as attorney's fees and the cost
thereof.
In support of the alleged unconstitutionality of Republic Act No.
3350, the Union contented, firstly, that the Act infringes on the
fundamental right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that membership in a
labor organization is banned to all those belonging to such
religious sect prohibiting affiliation with any labor organization" 4 ,
"prohibits all the members of a given religious sect from joining
any labor union if such sect prohibits affiliations of their members
thereto"5 ; and, consequently, deprives said members of their
constitutional right to form or join lawful associations or
organizations guaranteed by the Bill of Rights, and thus becomes
obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is
unconstitutional for impairing the obligation of contracts in that,
while the Union is obliged to comply with its collective
bargaining agreement containing a "closed shop provision," the
Act relieves the employer from its reciprocal obligation of
cooperating in the maintenance of union membership as a
condition of employment; and that said Act, furthermore, impairs
the Union's rights as it deprives the union of dues from members
who, under the Act, are relieved from the obligation to continue as
such members.7
Thirdly, the Union contended that Republic Act No. 3350
discriminatorily favors those religious sects which ban their
members from joining labor unions, in violation of Article Ill,
Section 1 (7) of the 1935 Constitution; and while said Act unduly
protects certain religious sects, it leaves no rights or protection to
labor organizations.8

Fourthly, Republic Act No. 3350, asserted the Union, violates the
constitutional provision that "no religious test shall be required for
the exercise of a civil right," in that the laborer's exercise of his
civil right to join associations for purposes not contrary to law has
to be determined under the Act by his affiliation with a religious
sect; that conversely, if a worker has to sever his religious
connection with a sect that prohibits membership in a labor
organization in order to be able to join a labor organization, said
Act would violate religious freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates
the "equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni
Cristo", it has granted said members undue advantages over their
fellow workers, for while the Act exempts them from union
obligation and liability, it nevertheless entitles them at the same
time to the enjoyment of all concessions, benefits and other
emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates
the constitutional provision regarding the promotion of social
justice. 11
Appellant Union, furthermore, asserted that a "closed shop
provision" in a collective bargaining agreement cannot be
considered violative of religious freedom, as to call for the
amendment introduced by Republic Act No. 3350; 12and that
unless Republic Act No. 3350 is declared unconstitutional, trade
unionism in this country would be wiped out as employers would
prefer to hire or employ members of the Iglesia ni Cristo in order
to do away with labor organizations. 13
Appellee, assailing appellant's arguments, contended that
Republic Act No. 3350 does not violate the right to form lawful
associations, for the right to join associations includes the right
not to join or to resign from a labor organization, if one's
conscience does not allow his membership therein, and the Act
has given substance to such right by prohibiting the compulsion of
workers to join labor organizations; 14 that said Act does not
impair the obligation of contracts for said law formed part of, and
was incorporated into, the terms of the closed shop
agreement; 15 that the Act does not violate the establishment of
religion clause or separation of Church and State, for Congress, in
enacting said law, merely accommodated the religious needs of
those workers whose religion prohibits its members from joining
labor unions, and balanced the collective rights of organized labor
with the constitutional right of an individual to freely exercise his
chosen religion; that the constitutional right to the free exercise of
one's religion has primacy and preference over union security
measures which are merely contractual 16; that said Act does not
violate the constitutional provision of equal protection, for the
classification of workers under the Act depending on their
religious tenets is based on substantial distinction, is germane to
the purpose of the law, and applies to all the members of a given
class; 17 that said Act, finally, does not violate the social justice
policy of the Constitution, for said Act was enacted precisely to
equalize employment opportunities for all citizens in the midst of
the diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error,
it is necessary to premise that there are some thoroughly
established principles which must be followed in all cases where
questions of constitutionality as obtains in the instant case are
involved. All presumptions are indulged in favor of
constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable
doubt, that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived
which supports the statute, it will be upheld, and the challenger
must negate all possible bases; that the courts are not concerned
with the wisdom, justice, policy, or expediency of a statute; and
that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. 19
1. Appellant Union's contention that Republic Act No.
3350 prohibits and bans the members of such religious sects that
forbid affiliation of their members with labor unions from joining
labor unions appears nowhere in the wording of Republic Act No.
3350; neither can the same be deduced by necessary implication
therefrom. It is not surprising, therefore, that appellant, having
thus misread the Act, committed the error of contending that said
Act is obnoxious to the constitutional provision on freedom of
association.
Both the Constitution and Republic Act No. 875 recognize
freedom of association. Section 1 (6) of Article III of the
Constitution of 1935, as well as Section 7 of Article IV of the
Constitution of 1973, provide that the right to form associations or
societies for purposes not contrary to law shall not be abridged.
Section 3 of Republic Act No. 875 provides that employees shall
have the right to self-organization and to form, join of assist labor
organizations of their own choosing for the purpose of collective
bargaining and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid or protection. What the
Constitution and the Industrial Peace Act recognize and guarantee
is the "right" to form or join associations. Notwithstanding the
different theories propounded by the different schools of
jurisprudence regarding the nature and contents of a "right", it can
be safely said that whatever theory one subscribes to, a right
comprehends at least two broad notions, namely: first, liberty or
14
freedom, i.e., the absence of legal restraint, whereby an employee
may act for himself without being prevented by law; and second,
power, whereby an employee may, as he pleases, join or refrain
from Joining an association. It is, therefore, the employee who
should decide for himself whether he should join or not an
association; and should he choose to join, he himself makes up his
mind as to which association he would join; and even after he has
joined, he still retains the liberty and the power to leave and
cancel his membership with said organization at any time. 20 It is
clear, therefore, that the right to join a union includes the right to
abstain from joining any union. 21 Inasmuch as what both the
Constitution and the Industrial Peace Act have recognized, and
guaranteed to the employee, is the "right" to join associations of
his choice, it would be absurd to say that the law also imposes, in
the same breath, upon the employee the duty to join associations.
The law does not enjoin an employee to sign up with any
association.
The right to refrain from joining labor organizations recognized
by Section 3 of the Industrial Peace Act is, however, limited. The
legal protection granted to such right to refrain from joining is
withdrawn by operation of law, where a labor union and an
employer have agreed on a closed shop, by virtue of which the
employer may employ only member of the collective bargaining
union, and the employees must continue to be members of the
union for the duration of the contract in order to keep their jobs.
Thus Section 4 (a) (4) of the Industrial Peace Act, before its
amendment by Republic Act No. 3350, provides that although it
would be an unfair labor practice for an employer "to discriminate
in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any
labor organization" the employer is, however, not precluded "from
making an agreement with a labor organization to require as a
condition of employment membership therein, if such labor
organization is the representative of the employees". By virtue,
therefore, of a closed shop agreement, before the enactment of
Republic Act No. 3350, if any person, regardless of his religious
beliefs, wishes to be employed or to keep his employment, he
must become a member of the collective bargaining union. Hence,
the right of said employee not to join the labor union is curtailed
and withdrawn.
To that all-embracing coverage of the closed shop arrangement,
Republic Act No. 3350 introduced an exception, when it added to
Section 4 (a) (4) of the Industrial Peace Act the following proviso:
"but such agreement shall not cover members of any religious
sects which prohibit affiliation of their members in any such labor
organization". Republic Act No. 3350 merely excludes ipso
jure from the application and coverage of the closed shop
agreement the employees belonging to any religious sects which
prohibit affiliation of their members with any labor organization.

What the exception provides, therefore, is that members of said
religious sects cannot be compelled or coerced to join labor
unions even when said unions have closed shop agreements with
the employers; that in spite of any closed shop agreement,
members of said religious sects cannot be refused employment or
dismissed from their jobs on the sole ground that they are not
members of the collective bargaining union. It is clear, therefore,
that the assailed Act, far from infringing the constitutional
provision on freedom of association, upholds and reinforces it. It
does not prohibit the members of said religious sects from
affiliating with labor unions. It still leaves to said members the
liberty and the power to affiliate, or not to affiliate, with labor
unions. If, notwithstanding their religious beliefs, the members of
said religious sects prefer to sign up with the labor union, they can
do so. If in deference and fealty to their religious faith, they refuse
to sign up, they can do so; the law does not coerce them to join;
neither does the law prohibit them from joining; and neither may
the employer or labor union compel them to join. Republic Act
No. 3350, therefore, does not violate the constitutional provision
on freedom of association.
2. Appellant Union also contends that the Act is unconstitutional
for impairing the obligation of its contract, specifically, the "union
security clause" embodied in its Collective Bargaining Agreement
with the Company, by virtue of which "membership in the union
was required as a condition for employment for all permanent
employees workers". This agreement was already in existence at
the time Republic Act No. 3350 was enacted on June 18, 1961,
and it cannot, therefore, be deemed to have been incorporated into
the agreement. But by reason of this amendment, Appellee, as
well as others similarly situated, could no longer be dismissed
from his job even if he should cease to be a member, or
disaffiliate from the Union, and the Company could continue
employing him notwithstanding his disaffiliation from the Union.
The Act, therefore, introduced a change into the express terms of
the union security clause; the Company was partly absolved by
law from the contractual obligation it had with the Union of
employing only Union members in permanent positions, It cannot
be denied, therefore, that there was indeed an impairment of said
union security clause.
According to Black, any statute which introduces a change into
the express terms of the contract, or its legal construction, or its
validity, or its discharge, or the remedy for its enforcement,
impairs the contract. The extent of the change is not material. It is
not a question of degree or manner or cause, but of encroaching in
any respect on its obligation or dispensing with any part of its
force. There is an impairment of the contract if either party is
absolved by law from its performance. 22 Impairment has also
been predicated on laws which, without destroying contracts,
derogate from substantial contractual rights. 23
It should not be overlooked, however, that the prohibition to
impair the obligation of contracts is not absolute and unqualified.
The prohibition is general, affording a broad outline and requiring
construction to fill in the details. The prohibition is not to be read
with literal exactness like a mathematical formula, for it prohibits
unreasonable impairment only. 24 In spite of the constitutional
prohibition, the State continues to possess authority to safeguard
the vital interests of its people. Legislation appropriate to
safeguarding said interests may modify or abrogate contracts
already in effect. 25 For not only are existing laws read into
contracts in order to fix the obligations as between the parties, but
the reservation of essential attributes of sovereign power is also
read into contracts as a postulate of the legal order. All contracts
made with reference to any matter that is subject to regulation
under the police power must be understood as made in reference
to the possible exercise of that power. 26 Otherwise, important and
valuable reforms may be precluded by the simple device of
entering into contracts for the purpose of doing that which
otherwise may be prohibited. The policy of protecting contracts
against impairment presupposes the maintenance of a government
by virtue of which contractual relations are worthwhile a
government which retains adequate authority to secure the peace
and good order of society. The contract clause of the Constitution
must, therefore, be not only in harmony with, but also in
subordination to, in appropriate instances, the reserved power of
the state to safeguard the vital interests of the people. It follows
that not all legislations, which have the effect of impairing a
contract, are obnoxious to the constitutional prohibition as to
impairment, and a statute passed in the legitimate exercise of
police power, although it incidentally destroys existing contract
rights, must be upheld by the courts. This has special application
to contracts regulating relations between capital and labor which
are not merely contractual, and said labor contracts, for being
impressed with public interest, must yield to the common good. 27
In several occasions this Court declared that the prohibition
against impairing the obligations of contracts has no application to
statutes relating to public subjects within the domain of the
general legislative powers of the state involving public
welfare. 28 Thus, this Court also held that the Blue Sunday Law
was not an infringement of the obligation of a contract that
required the employer to furnish work on Sundays to his
employees, the law having been enacted to secure the well-being
and happiness of the laboring class, and being, furthermore, a
legitimate exercise of the police power. 29
In order to determine whether legislation unconstitutionally
impairs contract obligations, no unchanging yardstick, applicable
at all times and under all circumstances, by which the validity of
each statute may be measured or determined, has been fashioned,
but every case must be determined upon its own circumstances.
15
Legislation impairing the obligation of contracts can be sustained
when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are
reasonable. Both the end sought and the means adopted must be
legitimate, i.e., within the scope of the reserved power of the state
construed in harmony with the constitutional limitation of that
power. 30
What then was the purpose sought to be achieved by Republic Act
No. 3350? Its purpose was to insure freedom of belief and
religion, and to promote the general welfare by preventing
discrimination against those members of religious sects which
prohibit their members from joining labor unions, confirming
thereby their natural, statutory and constitutional right to work,
the fruits of which work are usually the only means whereby they
can maintain their own life and the life of their dependents. It
cannot be gainsaid that said purpose is legitimate.
The questioned Act also provides protection to members of said
religious sects against two aggregates of group strength from
which the individual needs protection. The individual employee,
at various times in his working life, is confronted by two
aggregates of power — collective labor, directed by a union, and
collective capital, directed by management. The union, an
institution developed to organize labor into a collective force and
thus protect the individual employee from the power of collective
capital, is, paradoxically, both the champion of employee rights,
and a new source of their frustration. Moreover, when the Union
interacts with management, it produces yet a third aggregate of
group strength from which the individual also needs protection —
the collective bargaining relationship. 31
The aforementioned purpose of the amendatory law is clearly seen
in the Explanatory Note to House Bill No. 5859, which later
became Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who,
on account of his religious beliefs and convictions, cannot accept
membership in a labor organization although he possesses all the
qualifications for the job. This is tantamount to punishing such
person for believing in a doctrine he has a right under the law to
believe in. The law would not allow discrimination to flourish to
the detriment of those whose religion discards membership in any
labor organization. Likewise, the law would not commend the
deprivation of their right to work and pursue a modest means of
livelihood, without in any manner violating their religious faith
and/or belief.” 32
It cannot be denied, furthermore, that the means adopted by the
Act to achieve that purpose — exempting the members of said

religious sects from coverage of union security agreements — is
reasonable.
It may not be amiss to point out here that the free exercise of
religious profession or belief is superior to contract rights. In case
of conflict, the latter must, therefore, yield to the former. The
Supreme Court of the United States has also declared on several
occasions that the rights in the First Amendment, which include
freedom of religion, enjoy a preferred position in the
constitutional system. 33 Religious freedom, although not
unlimited, is a fundamental personal right and liberty, 34 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 to avoid the danger.
3. In further support of its contention that Republic Act No. 3350
is unconstitutional, appellant Union averred that said Act
discriminates in favor of members of said religious sects in
violation of Section 1 (7) of Article Ill of the 1935 Constitution,
and which is now Section 8 of Article IV of the 1973
Constitution, which provides:
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 and preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.”
The constitutional provision into 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, 35 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. 36 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. 37 But if the
stage 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. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the
government should not be precluded from pursuing valid
objectives secular in character even if the incidental result would
be favorable to a religion or sect. It has likewise been held that the
statute, in order to withstand the strictures of constitutional
prohibition, must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion. 40 Assessed by
these criteria, Republic Act No. 3350 cannot be said to violate the
constitutional inhibition of the "no-establishment" (of religion)
clause of the Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and
temporal, not spiritual or religious or holy and eternal. It 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. To help its citizens to find gainful employment
whereby they can make a living to support themselves and their
families is a valid objective of the state. In fact, the state is
enjoined, in the 1935 Constitution, to afford protection to labor,
and regulate the relations between labor and capital and
industry. 41 More so now in the 1973 Constitution where it is
mandated that "the State shall afford protection to labor, promote
full employment and equality in employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the
relation between workers and employers. 42
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 by eliminating to a certain
extent economic insecurity due to unemployment, which is a
serious menace to the health, morals, and welfare of the people of
the State, the Act also promotes the well-being of society. It is our
view that the exemption from the effects of closed shop agreement
does not directly advance, or diminish, the interests of any
particular religion. Although 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. The "establishment clause" (of
religion) does not ban regulation on conduct whose reason or
effect merely happens to coincide or harmonize with the tenets of
some or all religions. 43 The free exercise clause of the
Constitution has been interpreted to require that religious exercise
be preferentially aided. 44
16
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. It was
Congress itself that imposed that burden when it enacted the
Industrial Peace Act (Republic Act 875), and, certainly, Congress,
if it so deems advisable, could take away the same burden. It is
certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. 45 In the instant case, We
see no such compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects
members of certain religious sects, it leaves no right to, and is
silent as to the protection of, labor organizations. The purpose of
Republic Act No. 3350 was not to grant rights to labor unions.
The rights of labor unions are amply provided for in Republic Act
No. 875 and the new Labor Code. As to the lamented silence of
the Act regarding the rights and protection of labor unions, suffice
it to say, first, that the validity of a statute is determined by its
provisions, not by its silence 46 ; and, second, the fact that the law
may work hardship does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to
compel persons to join and remain members of a union to keep
their jobs in violation of their religious scrupples, would hurt,
rather than help, labor unions, Congress has seen it fit to exempt
religious objectors lest their resistance spread to other workers, for
religious objections have contagious potentialities more than
political and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to
the country, and a fortiori to a labor — union 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. 48 A desirable end cannot be promoted by prohibited
means.
4. Appellants' fourth contention, that Republic Act No. 3350
violates the constitutional prohibition against requiring a religious
test for the exercise of a civil right or a political right, is not well
taken. The Act does not require as a qualification, or condition,
for joining any lawful association membership in any particular
religion or in any religious sect; neither does the Act require
affiliation with a religious sect that prohibits its members from
joining a labor union as a condition or qualification for
withdrawing from a labor union. Joining or withdrawing from a
labor union requires a positive act. Republic Act No. 3350 only
exempts members with such religious affiliation from the

coverage of closed shop agreements. So, under this Act, a
religious objector is not required to do a positive act — to exercise
the right to join or to resign from the union. He is exempted ipso
jure without need of any positive act on his part. A conscientious
religious objector need not perform a positive act or exercise the
right of resigning from the labor union — he is exempted from the
coverage of any closed shop agreement that a labor union may
have entered into. How then can there be a religious test required
for the exercise of a right when no right need be exercised?
We have said that it was within the police power of the State to
enact Republic Act No. 3350, and that its purpose was legal and in
consonance with the Constitution. It is never an illegal evasion of
a constitutional provision or prohibition to accomplish a desired
result, which is lawful in itself, by discovering or following a
legal way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350
is a discriminatory legislation, inasmuch as it grants to the
members of certain religious sects undue advantages over other
workers, thus violating Section 1 of Article III of the 1935
Constitution which forbids the denial to any person of the equal
protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. 51 It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. 52 The very idea
of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the
matter of constitutionality. 53 All that is required of a valid
classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. 54 This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose
of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. 56 It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. 57 Neither is it necessary
that the classification be made with mathematical nicety. 58 Hence
legislative classification may in many cases properly rest on
narrow distinctions, 59 for the equal protection guaranty does not
preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the
aforementioned requirements. The Act classifies employees and
workers, as to the effect and coverage of union shop security
agreements, into those who by reason of their religious beliefs and
convictions cannot sign up with a labor union, and those whose
religion does not prohibit membership in labor unions. Tile
classification rests on real or substantial, not merely imaginary or
whimsical, distinctions. There is such real distinction in the
beliefs, feelings and sentiments of employees. Employees do not
believe in the same religious faith and different religions differ in
their dogmas and cannons. Religious beliefs, manifestations and
practices, though they are found in all places, and in all times,
take so many varied forms as to be almost beyond imagination.
There are many views that comprise the broad spectrum of
religious beliefs among the people. There are diverse manners in
which beliefs, equally paramount in the lives of their possessors,
may be articulated. Today the country is far more heterogenous in
religion than before, differences in religion do exist, and these
differences are important and should not be ignored.
Even from the phychological point of view, the classification is
based on real and important differences. Religious beliefs are not
mere beliefs, mere ideas existing only in the mind, for they carry
with them practical consequences and are the motives of certain
rules. of human conduct and the justification of certain
acts. 60 Religious sentiment makes a man view things and events
in their relation to his God. It gives to human life its distinctive
character, its tone, its happiness or unhappiness its enjoyment or
irksomeness. Usually, a strong and passionate desire is involved
in a religious belief. To certain persons, no single factor of their
experience is more important to them than their religion, or their
not having any religion. Because of differences in religious belief
and sentiments, a very poor person may consider himself better
than the rich, and the man who even lacks the necessities of life
17
may be more cheerful than the one who has all possible luxuries.
Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most
painful and excruciating pains. Because of differences in religious
beliefs, the world has witnessed turmoil, civil strife, persecution,
hatred, bloodshed and war, generated to a large extent by
members of sects who were intolerant of other religious beliefs.
The classification, introduced by Republic Act No. 3350,
therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its
purpose. The purpose of the law is precisely to avoid those who
cannot, because of their religious belief, join labor unions, from
being deprived of their right to work and from being dismissed
from their work because of union shop security agreements.
Republic Act No. 3350, furthermore, is not limited in its
application to conditions existing at the time of its enactment. The
law does not provide that it is to be effective for a certain period
of time only. It is intended to apply for all times as long as the
conditions to which the law is applicable exist. As long as there
are closed shop agreements between an employer and a labor
union, and there are employees who are prohibited by their
religion from affiliating with labor unions, their exemption from
the coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious
sects; this is evident from its provision. The fact that the law
grants a privilege to members of said religious sects cannot by
itself render the Act unconstitutional, for as We have adverted to,
the Act only restores to them their freedom of association which
closed shop agreements have taken away, and puts them in the
same plane as the other workers who are not prohibited by their
religion from joining labor unions. The circumstance, that the
other employees, because they are differently situated, are not
granted the same privilege, does not render the law
unconstitutional, for every classification allowed by the
Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in
actual inequality is not violative of the right to equal protection,
for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby
rendered invalid. A classification otherwise reasonable does not
offend the constitution simply because in practice it results in
some inequality. 61 Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object is
for the benefit of the public and the means by which the benefit is
to be obtained are of public character, the law will be upheld even

though incidental advantage may occur to individuals beyond
those enjoyed by the general public. 62
6. Appellant's further contention that Republic Act No. 3350
violates the constitutional provision on social justice is also
baseless. Social justice is intended to promote the welfare of all
the people. 63 Republic Act No. 3350 promotes that welfare
insofar as it looks after the welfare of those who, because of their
religious belief, cannot join labor unions; the Act prevents their
being deprived of work and of the means of livelihood. In
determining whether any particular measure is for public
advantage, it is not necessary that the entire state be directly
benefited — it is sufficient that a portion of the state be benefited
thereby.
Social justice also means the adoption by the Government of
measures calculated to insure economic stability of all component
elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the
members of the community. 64 Republic Act No. 3350 insures
economic stability to the members of a religious sect, like the
Iglesia ni Cristo, who are also component elements of society, for
it insures security in their employment, notwithstanding their
failure to join a labor union having a closed shop agreement with
the employer. The Act also advances the proper economic and
social equilibrium between labor unions and employees who
cannot join labor unions, for it exempts the latter from the
compelling necessity of joining labor unions that have closed shop
agreements and equalizes, in so far as opportunity to work is
concerned, those whose religion prohibits membership in labor
unions with those whose religion does not prohibit said
membership. Social justice does not imply social equality,
because social inequality will always exist as long as social
relations depend on personal or subjective proclivities. Social
justice does not require legal equality because legal equality,
being a relative term, is necessarily premised on differentiations
based on personal or natural conditions. 65 Social justice
guarantees equality of opportunity 66 , and this is precisely what
Republic Act No. 3350 proposes to accomplish — it gives
laborers, irrespective of their religious scrupples, equal
opportunity for work.
7. As its last ground, appellant contends that the amendment
introduced by Republic Act No. 3350 is not called for — in other
words, the Act is not proper, necessary or desirable. Anent this
matter, it has been held that a statute which is not necessary is not,
for that reason, unconstitutional; that in determining the
constitutional validity of legislation, the courts are unconcerned
with issues as to the necessity for the enactment of the legislation
in question. 67 Courts do inquire into the wisdom of
laws. 68 Moreover, legislatures, being chosen by the people, are
presumed to understand and correctly appreciate the needs of the
people, and it may change the laws accordingly. 69 The fear is
entertained by appellant that unless the Act is declared
unconstitutional, employers will prefer employing members of
religious sects that prohibit their members from joining labor
unions, and thus be a fatal blow to unionism. We do not agree.
The threat to unionism will depend on the number of employees
who are members of the religious sects that control the demands
of the labor market. But there is really no occasion now to go
further and anticipate problems We cannot judge with the material
now before Us. At any rate, the validity of a statute is to be
determined from its general purpose and its efficacy to
accomplish the end desired, not from its effects on a particular
case. 70 The essential basis for the exercise of power, and not a
mere incidental result arising from its exertion, is the criterion by
which the validity of a statute is to be measured. 71
II. We now pass on the second assignment of error, in support of
which the Union argued that the decision of the trial court
ordering the Union to pay P500 for attorney's fees directly
contravenes Section 24 of Republic Act No. 875, for the instant
action involves an industrial dispute wherein the Union was a
party, and said Union merely acted in the exercise of its rights
under the union shop provision of its existing collective
bargaining contract with the Company; that said order also
contravenes Article 2208 of the Civil Code; that, furthermore,
Appellee was never actually dismissed by the defendant Company
and did not therefore suffer any damage at all . 72
In refuting appellant Union's arguments, Appellee claimed that in
the instant case there was really no industrial dispute involved in
the attempt to compel Appellee to maintain its membership in the
union under pain of dismissal, and that the Union, by its act,
inflicted intentional harm on Appellee; that since Appellee was
compelled to institute an action to protect his right to work,
appellant could legally be ordered to pay attorney's fees under
Articles 1704 and 2208 of the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875
which is relied upon by appellant provides that:
No suit, action or other proceedings shall be maintainable in any
court against a labor organization or any officer or member
thereof for any act done by or on behalf of such organization in
furtherance of an industrial dispute to which it is a party, on the
ground only that such act induces some other person to break a
contract of employment or that it is in restraint of trade or
interferes with the trade, business or employment of some other
person or with the right of some other person to dispose of his
capital or labor. (Emphasis supplied)
18
That there was a labor dispute in the instant case cannot be
disputed for appellant sought the discharge of respondent by
virtue of the closed shop agreement and under Section 2 (j) of
Republic Act No. 875 a question involving tenure of employment
is included in the term "labor dispute". 74 The discharge or the act
of seeking it is the labor dispute itself. It being the labor dispute
itself, that very same act of the Union in asking the employer to
dismiss Appellee cannot be "an act done ... in furtherance of an
industrial dispute". The mere fact that appellant is a labor union
does not necessarily mean that all its acts are in furtherance of an
industrial dispute. 75 Appellant Union, therefore, cannot invoke in
its favor Section 24 of Republic Act No. 875. This case is not
intertwined with any unfair labor practice case existing at the time
when Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the
Union, serve as its shield. The article provides that attorney's fees
and expenses of litigation may be awarded "when the defendant's
act or omission has compelled the plaintiff ... to incur expenses to
protect his interest"; and "in any other case where the court deems
it just and equitable that attorney's fees and expenses of litigation
should be recovered". In the instant case, it cannot be gainsaid that
appellant Union's act in demanding Appellee's dismissal caused
Appellee to incur expenses to prevent his being dismissed from
his job. Costs according to Section 1, Rule 142, of the Rules of
Court, shall be allowed as a matter of course to the prevailing
party.
WHEREFORE, the instant appeal is dismissed, and the decision,
dated August 26, 1965, of the Court of First Instance of Manila, in
its Civil Case No. 58894, appealed from is affirmed, with costs
against appellant Union. It is so ordered.
EN BANC
G.R. No. L-9637             April 30, 1957
AMERICAN BIBLE SOCIETY, plaintiff-appellant, 
vs. CITY OF MANILA, defendant-appellee.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Nañawa for appellee.
FELIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious,
missionary corporation duly registered and doing business in the
Philippines through its Philippine agency established in Manila in
November, 1898, with its principal office at 636 Isaac Peral in
said City. The defendant appellee is a municipal corporation with
powers that are to be exercised in conformity with the provisions
of Republic Act No. 409, known as the Revised Charter of the
City of Manila.
In the course of its ministry, plaintiff's Philippine agency has been
distributing and selling bibles and/or gospel portions thereof
(except during the Japanese occupation) throughout the
 19

Philippines and translating the same into several Philippine other foreign languages imported by it from the United States as 1st quarter 1952 23,002.65
dialects. On May 29 1953, the acting City Treasurer of the City of well as Bibles, New Testaments and bible portions in the local
Manila informed plaintiff that it was conducting the business of dialects imported and/or purchased locally; that from the fourth 2nd quarter 1952 17,626.96
general merchandise since November, 1945, without providing quarter of 1945 to the first quarter of 1953 inclusive the sales
itself with the necessary Mayor's permit and municipal license, in 3rd quarter 1952 17,921.01
made by the plaintiff were as follows:
violation of Ordinance No. 3000, as amended, and Ordinances 4th quarter 1952 24,180.72
Nos. 2529, 3028 and 3364, and required plaintiff to secure, within
Quarter Amount
three days, the corresponding permit and license fees, together 1st quarter 1953 29,516.21
of Sales
with compromise covering the period from the 4th quarter of 1945 2. That the parties hereby reserve the right to present evidence of
to the 2nd quarter of 1953, in the total sum of P5,821.45 (Annex 4th quarter 1945 P1,244.2 other facts not herein stipulated.
A). 1
WHEREFORE, it is respectfully prayed that this case be set for
1st quarter 1946 2,206.85
Plaintiff protested against this requirement, but the City Treasurer hearing so that the parties may present further evidence on their
demanded that plaintiff deposit and pay under protest the sum of 2nd quarter 1946 1,950.38 behalf. (Record on Appeal, pp. 15-16).
P5,891.45, if suit was to be taken in court regarding the same
(Annex B). To avoid the closing of its business as well as further 3rd quarter 1946 2,235.99
When the case was set for hearing, plaintiff proved, among other
fines and penalties in the premises on October 24, 1953, plaintiff
4th quarter 1946 3,256.04 things, that it has been in existence in the Philippines since 1899,
paid to the defendant under protest the said permit and license
and that its parent society is in New York, United States of
fees in the aforementioned amount, giving at the same time notice 1st quarter 1947 13,241.07 America; that its, contiguous real properties located at Isaac Peral
to the City Treasurer that suit would be taken in court to question
2nd quarter 1947 15,774.55 are exempt from real estate taxes; and that it was never required to
the legality of the ordinances under which, the said fees were
pay any municipal license fee or tax before the war, nor does the
being collected (Annex C), which was done on the same date by
3rd quarter 1947 14,654.13 American Bible Society in the United States pay any license fee
filing the complaint that gave rise to this action. In its complaint
or sales tax for the sale of bible therein. Plaintiff further tried to
plaintiff prays that judgment be rendered declaring the said 4th quarter 1947 12,590.94 establish that it never made any profit from the sale of its bibles,
Municipal Ordinance No. 3000, as amended, and Ordinances Nos.
1st quarter 1948 11,143.90 which are disposed of for as low as one third of the cost, and that
2529, 3028 and 3364 illegal and unconstitutional, and that the
in order to maintain its operating cost it obtains substantial
defendant be ordered to refund to the plaintiff the sum of
2nd quarter 1948 14,715.26 remittances from its New York office and voluntary contributions
P5,891.45 paid under protest, together with legal interest thereon,
and gifts from certain churches, both in the United States and in
and the costs, plaintiff further praying for such other relief and 3rd quarter 1948 38,333.83 the Philippines, which are interested in its missionary work.
remedy as the court may deem just equitable.
4th quarter 1948 16,179.90 Regarding plaintiff's contention of lack of profit in the sale of
bibles, defendant retorts that the admissions of plaintiff-
Defendant answered the complaint, maintaining in turn that said 1st quarter 1949 23,975.10 appellant's lone witness who testified on cross-examination that
ordinances were enacted by the Municipal Board of the City of bibles bearing the price of 70 cents each from plaintiff-appellant's
Manila by virtue of the power granted to it by section 2444, 2nd quarter 1949 17,802.08 New York office are sold here by plaintiff-appellant at P1.30
subsection (m-2) of the Revised Administrative Code, superseded each; those bearing the price of $4.50 each are sold here at P10
on June 18, 1949, by section 18, subsection (1) of Republic Act 3rd quarter 1949 16,640.79
each; those bearing the price of $7 each are sold here at P15 each;
No. 409, known as the Revised Charter of the City of Manila, and 4th quarter 1949 15,961.38 and those bearing the price of $11 each are sold here at P22 each,
praying that the complaint be dismissed, with costs against clearly show that plaintiff's contention that it never makes any
plaintiff. This answer was replied by the plaintiff reiterating the 1st quarter 1950 18,562.46 profit from the sale of its bible, is evidently untenable.
unconstitutionality of the often-repeated ordinances.
2nd quarter 1950 21,816.32
After hearing the Court rendered judgment, the last part of which
Before trial the parties submitted the following stipulation of 3rd quarter 1950 25,004.55 is as follows:
facts: As may be seen from the repealed section (m-2) of the Revised
COME NOW the parties in the above-entitled case, thru their 4th quarter 1950 45,287.92
Administrative Code and the repealing portions (o) of section 18
undersigned attorneys and respectfully submit the following 1st quarter 1951 37,841.21 of Republic Act No. 409, although they seemingly differ in the
stipulation of facts: way the legislative intent is expressed, yet their meaning is
2nd quarter 1951 29,103.98
practically the same for the purpose of taxing the merchandise
1. That the plaintiff sold for the use of the purchasers at its
3rd quarter 1951 20,181.10 mentioned in said legal provisions, and that the taxes to be levied
principal office at 636 Isaac Peral, Manila, Bibles, New
by said ordinances is in the nature of percentage graduated taxes
Testaments, bible portions and bible concordance in English and 4th quarter 1951 22,968.91

(Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1, Group 2,
of Ordinance No. 2529, as amended by Ordinance No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS, this
Court is of the opinion and so holds that this case should be
dismissed, as it is hereby dismissed, for lack of merits, with costs
against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the
Court of Appeals which certified the case to Us for the reason that
the errors assigned to the lower Court involved only questions of
law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively
amended, are not unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised
Administrative Code under which Ordinances Nos. 2592 and
3000 were promulgated, was not repealed by Section 18 of
Republic Act No. 409;
3. In not holding that an ordinance providing for taxes based on
gross sales or receipts, in order to be valid under the new Charter
of the City of Manila, must first be approved by the President of
the Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have
assumed commercial proportions, it cannot escape from the
operation of said municipal ordinances under the cloak of
religious privilege.
The issues. — As may be seen from the proceeding statement of
the case, the issues involved in the present controversy may be
reduced to the following: (1) whether or not the ordinances of the
City of Manila, Nos. 3000, as amended, and 2529, 3028 and 3364,
are constitutional and valid; and (2) whether the provisions of said
ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the
Republic of the Philippines, provides that:
(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 religion
test shall be required for the exercise of civil or political rights.
Predicated on this constitutional mandate, plaintiff-appellant
contends that Ordinances Nos. 2529 and 3000, as respectively
amended, are unconstitutional and illegal in so far as its society is
concerned, because they provide for religious censorship and
restrain the free exercise and enjoyment of its religious profession,
to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines.
Before entering into a discussion of the constitutional aspect of
the case, We shall first consider the provisions of the questioned
ordinances in relation to their application to the sale of bibles, etc.
by appellant. The records, show that by letter of May 29, 1953
(Annex A), the City Treasurer required plaintiff to secure a
Mayor's permit in connection with the society's alleged business
of distributing and selling bibles, etc. and to pay permit dues in
the sum of P35 for the period covered in this litigation, plus the
sum of P35 for compromise on account of plaintiff's failure to
secure the permit required by Ordinance No. 3000 of the City of
Manila, as amended. This Ordinance is of general application and
not particularly directed against institutions like the plaintiff, and
it does not contain any provisions whatever prescribing religious
censorship nor restraining the free exercise and enjoyment of any
religious profession. Section 1 of Ordinance No. 3000 reads as
follows:
SEC. 1. PERMITS NECESSARY. — It shall be unlawful for any
person or entity to conduct or engage in any of the businesses,
trades, or occupations enumerated in Section 3 of this Ordinance
or other businesses, trades, or occupations for which a permit is
required for the proper supervision and enforcement of existing
laws and ordinances governing the sanitation, security, and
welfare of the public and the health of the employees engaged in
the business specified in said section 3 hereof, WITHOUT FIRST
HAVING OBTAINED A PERMIT THEREFOR FROM THE
MAYOR AND THE NECESSARY LICENSE FROM THE CITY
TREASURER.
The business, trade or occupation of the plaintiff involved in this
case is not particularly mentioned in Section 3 of the Ordinance,
and the record does not show that a permit is required therefor
under existing laws and ordinances for the proper supervision and
enforcement of their provisions governing the sanitation, security
and welfare of the public and the health of the employees engaged
in the business of the plaintiff. However, sections 3 of Ordinance
3000 contains item No. 79, which reads as follows:
79. All other businesses, trades or occupations not 
mentioned in this Ordinance, except those upon which the  For the purpose of taxation, these retail dealers shall be classified
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the
power of the City to license or tax said business, trade or
occupation.
20
As to the license fees that the Treasurer of the City of Manila
required the society to pay from the 4th quarter of 1945 to the 1st
quarter of 1953 in the sum of P5,821.45, including the sum of P50
as compromise, Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028 prescribes the following:
SEC. 1. FEES. — Subject to the provisions of section 578 of the
Revised Ordinances of the City of Manila, as amended, there shall
be paid to the City Treasurer for engaging in any of the businesses
or occupations below enumerated, quarterly, license fees based on
gross sales or receipts realized during the preceding quarter in
accordance with the rates herein prescribed: PROVIDED,
HOWEVER, That a person engaged in any businesses or
occupation for the first time shall pay the initial license fee based
on the probable gross sales or receipts for the first quarter
beginning from the date of the opening of the business as
indicated herein for the corresponding business or occupation.
x x x           x x x           x x x GROUP 2. — Retail dealers in new
(not yet used) merchandise, which dealers are not yet subject to
the payment of any municipal tax, such as (1) retail dealers in
general merchandise; (2) retail dealers exclusively engaged in the
sale of . . . books, including stationery. x x x           x x x           x x
x
As may be seen, the license fees required to be paid quarterly in
Section 1 of said Ordinance No. 2529, as amended, are not
imposed directly upon any religious institution but upon those
engaged in any of the business or occupations therein enumerated,
such as retail "dealers in general merchandise" which, it is
alleged, cover the business or occupation of selling bibles, books,
etc.
Chapter 60 of the Revised Administrative Code which includes
section 2444, subsection (m-2) of said legal body, as amended by
Act No. 3659, approved on December 8, 1929, empowers the
Municipal Board of the City of Manila:
(M-2) To tax and fix the license fee on (a) dealers in new
automobiles or accessories or both, and (b) retail dealers in new
(not yet used) merchandise, which dealers are not yet subject to
the payment of any municipal tax.
as (1) retail dealers in general merchandise, and (2) retail dealers
exclusively engaged in the sale of (a) textiles . . . (e) books,
including stationery, paper and office supplies, . . .: PROVIDED,
HOWEVER, That the combined total tax of any debtor or
manufacturer, or both, enumerated under these subsections (m-1)
and (m-2), whether dealing in one or all of the articles mentioned

herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED
PESOS PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529
and 3000, as amended, were enacted in virtue of the power that
said Act No. 3669 conferred upon the City of Manila. Appellant,
however, contends that said ordinances are longer in force and
effect as the law under which they were promulgated has been
expressly repealed by Section 102 of Republic Act No. 409
passed on June 18, 1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that
Republic Act No. 409 expressly repealed the provisions of
Chapter 60 of the Revised Administrative Code but in the opinion
of the trial Judge, although Section 2444 (m-2) of the former
Manila Charter and section 18 (o) of the new seemingly differ in
the way the legislative intent was expressed, yet their meaning is
practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances
Nos. 2529 and 3000, as amended, are to be considered as still in
full force and effect uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing
statute, will repeal the old statute in its entirety and by the same
enactment re-enact all or certain portions of the preexisting law.
Of course, the problem created by this sort of legislative action
involves mainly the effect of the repeal upon rights and liabilities
which accrued under the original statute. Are those rights and
liabilities destroyed or preserved? The authorities are divided as to
the effect of simultaneous repeals and re-enactments. Some
adhere to the view that the rights and liabilities accrued under the
repealed act are destroyed, since the statutes from which they
sprang are actually terminated, even though for only a very short
period of time. Others, and they seem to be in the majority, refuse
to accept this view of the situation, and consequently maintain
that all rights an liabilities which have accrued under the original
statute are preserved and may be enforced, since the re-
enactment neutralizes the repeal, therefore, continuing the law in
force without interruption. (Crawford-Statutory Construction, Sec.
322).
Appellant's counsel states that section 18 (o) of Republic Act No,
409 introduces a new and wider concept of taxation and is
different from the provisions of Section 2444(m-2) that the former
cannot be considered as a substantial re-enactment of the
provisions of the latter. We have quoted above the provisions of
section 2444(m-2) of the Revised Administrative Code and We
shall now copy hereunder the provisions of Section 18,
subdivision (o) of Republic Act No. 409, which reads as follows:
(o) To tax and fix the license fee on dealers in general
merchandise, including importers and indentors, except those
dealers who may be expressly subject to the payment of some
other municipal tax under the provisions of this section.
Dealers in general merchandise shall be classified as (a)
wholesale dealers and (b) retail dealers. For purposes of the tax on
retail dealers, general merchandise shall be classified into four
main classes: namely (1) luxury articles, (2) semi-luxury articles,
(3) essential commodities, and (4) miscellaneous articles. A
separate license shall be prescribed for each class but where
commodities of different classes are sold in the same
establishment, it shall not be compulsory for the owner to secure
more than one license if he pays the higher or highest rate of tax
prescribed by ordinance. Wholesale dealers shall pay the license
tax as such, as may be provided by ordinance.
For purposes of this section, the term "General merchandise" shall
include poultry and livestock, agricultural products, fish and other
allied products.”
The only essential difference that We find between these two
provisions that may have any bearing on the case at bar, is that,
while subsection (m-2) prescribes that the combined total tax of
any dealer or manufacturer, or both, enumerated under
subsections (m-1) and (m-2), whether dealing in one or all of the
articles mentioned therein, shall not be in excess of P500 per
annum, the corresponding section 18, subsection (o) of Republic
Act No. 409, does not contain any limitation as to the amount of
tax or license fee that the retail dealer has to pay per annum.
Hence, and in accordance with the weight of the authorities above
referred to that maintain that "all rights and liabilities which have
accrued under the original statute are preserved and may be
enforced, since the reenactment neutralizes the repeal, therefore
continuing the law in force without interruption", We hold that the
questioned ordinances of the City of Manila are still in force and
effect.
Plaintiff, however, argues that the questioned ordinances, to be
valid, must first be approved by the President of the Philippines as
per section 18, subsection (ii) of Republic Act No. 409, which
reads as follows:
(ii) To tax, license and regulate any business, trade or occupation
being conducted within the City of Manila, not otherwise
enumerated in the preceding subsections, including percentage
taxes based on gross sales or receipts, subject to the approval of
the PRESIDENT, except amusement taxes.
21
but this requirement of the President's approval was not contained
in section 2444 of the former Charter of the City of Manila under
which Ordinance No. 2529 was promulgated. Anyway, as stated
by appellee's counsel, the business of "retail dealers in general
merchandise" is expressly enumerated in subsection (o), section
18 of Republic Act No. 409; hence, an ordinance prescribing a
municipal tax on said business does not have to be approved by
the President to be effective, as it is not among those referred to in
said subsection (ii). Moreover, the questioned ordinances are still
in force, having been promulgated by the Municipal Board of the
City of Manila under the authority granted to it by law.
The question that now remains to be determined is whether said
ordinances are inapplicable, invalid or unconstitutional if applied
to the alleged business of distribution and sale of bibles to the
people of the Philippines by a religious corporation like the
American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028, appellant contends that it is
unconstitutional and illegal because it restrains the free exercise
and enjoyment of the religious profession and worship of
appellant.
Article III, section 1, clause (7) of the Constitution of the
Philippines aforequoted, guarantees the freedom of religious
profession and worship. "Religion has been spoken of as a
profession of faith to an active power that binds and elevates man
to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It 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 (Davis vs. Beason, 133 U.S., 342). The
constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraints of such right can
only be justified like other restraints of freedom of expression on
the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent". (Tañada
and Fernando on the Constitution of the Philippines, Vol. 1, 4th
ed., p. 297). In the case at bar the license fee herein involved is
imposed upon appellant for its distribution and sale of bibles and
other religious literature:
In the case of Murdock vs. Pennsylvania, it was held that an
ordinance requiring that a license be obtained before a person
could canvass or solicit orders for goods, paintings, pictures,
wares or merchandise cannot be made to apply to members of
Jehovah's Witnesses who went about from door to door
distributing literature and soliciting people to "purchase" certain
religious books and pamphlets, all published by the Watch Tower
Bible & Tract Society. The "price" of the books was twenty-five

cents each, the "price" of the pamphlets five cents each. It was
shown that in making the solicitations there was a request for
additional "contribution" of twenty-five cents each for the books
and five cents each for the pamphlets. Lesser sum were accepted,
however, and books were even donated in case interested persons
were without funds.
On the above facts the Supreme Court held that it could not be
said that petitioners were engaged in commercial rather than a
religious venture. Their activities could not be described as
embraced in the occupation of selling books and pamphlets. Then
the Court continued:
"We do not mean to say that religious groups and the press are
free from all financial burdens of government. See Grosjean vs.
American Press Co., 297 U.S., 233, 250, 80 L. ed. 660, 668, 56 S.
Ct. 444. We have here something quite different, for example,
from a tax on the income of one who engages in religious
activities or a tax on property used or employed in connection
with activities. It is one thing to impose a tax on the income or
property of a preacher. It is quite another to exact a tax from him
for the privilege of delivering a sermon. The tax imposed by the
City of Jeannette is a flat license tax, payment of which is a
condition of the exercise of these constitutional privileges. The
power to tax the exercise of a privilege is the power to control or
suppress its enjoyment. . . . Those who can tax the exercise of this
religious practice can make its exercise so costly as to deprive it
of the resources necessary for its maintenance. Those who can tax
the privilege of engaging in this form of missionary evangelism
can close all its doors to all those who do not have a full purse.
Spreading religious beliefs in this ancient and honorable manner
would thus be denied the needy. . . .
It is contended however that the fact that the license tax can
suppress or control this activity is unimportant if it does not do so.
But that is to disregard the nature of this tax. It is a license tax —
a flat tax imposed on the exercise of a privilege granted by the
Bill of Rights . . . The power to impose a license tax on the
exercise of these freedom is indeed as potent as the power of
censorship which this Court has repeatedly struck down. . . . It is
not a nominal fee imposed as a regulatory measure to defray the
expenses of policing the activities in question. It is in no way
apportioned. It is flat license tax levied and collected as a
condition to the pursuit of activities whose enjoyment is
guaranteed by the constitutional liberties of press and religion and
inevitably tends to suppress their exercise. That is almost
uniformly recognized as the inherent vice and evil of this flat
license tax."
Nor could dissemination of religious information be conditioned
upon the approval of an official or manager even if the town were
owned by a corporation as held in the case of Marsh vs. State of
Alabama (326 U.S. 501), or by the United States itself as held in
the case of Tucker vs. Texas (326 U.S. 517). In the former case
the Supreme Court expressed the opinion that the right to enjoy
freedom of the press and religion occupies a preferred position as
against the constitutional right of property owners.
"When we balance the constitutional rights of owners of property
against those of the people to enjoy freedom of press and religion,
as we must here, we remain mindful of the fact that the latter
occupy a preferred position. . . . In our view the circumstance that
the property rights to the premises where the deprivation of
property here involved, took place, were held by others than the
public, is not sufficient to justify the State's permitting a
corporation to govern a community of citizens so as to restrict
their fundamental liberties and the enforcement of such restraint
by the application of a State statute." (Tañada and Fernando on
the Constitution of the Philippines, Vol. 1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as
the National Internal Revenue Code, provides:
SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS.
— The following organizations shall not be taxed under this Title
in respect to income received by them as such —
(e) Corporations or associations organized and operated
exclusively for religious, charitable, . . . or educational purposes, .
. .: Provided, however, That the income of whatever kind and
character from any of its properties, real or personal, or from any
activity conducted for profit, regardless of the disposition made of
such income, shall be liable to the tax imposed under this Code;
Appellant's counsel claims that the Collector of Internal Revenue
has exempted the plaintiff from this tax and says that such
exemption clearly indicates that the act of distributing and selling
bibles, etc. is purely religious and does not fall under the above
legal provisions.
It may be true that in the case at bar the price asked for the bibles
and other religious pamphlets was in some instances a little bit
higher than the actual cost of the same but this cannot mean that
appellant was engaged in the business or occupation of selling
said "merchandise" for profit. For this reason We believe that the
provisions of City of Manila Ordinance No. 2529, as amended,
cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and
worship as well as its rights of dissemination of religious beliefs.
22
With respect to Ordinance No. 3000, as amended, which requires
the obtention the Mayor's permit before any person can engage in
any of the businesses, trades or occupations enumerated therein,
We do not find that it imposes any charge upon the enjoyment of
a right granted by the Constitution, nor tax the exercise of
religious practices. In the case of Coleman vs. City of Griffin, 189
S.E. 427, this point was elucidated as follows:
An ordinance by the City of Griffin, declaring that the practice of
distributing either by hand or otherwise, circulars, handbooks,
advertising, or literature of any kind, whether said articles are
being delivered free, or whether same are being sold within the
city limits of the City of Griffin, without first obtaining written
permission from the city manager of the City of Griffin, shall be
deemed a nuisance and punishable as an offense against the City
of Griffin, does not deprive defendant of his constitutional right
of the free exercise and enjoyment of religious profession and
worship, even though it prohibits him from introducing and
carrying out a scheme or purpose which he sees fit to claim as a
part of his religious system.
It seems clear, therefore, that Ordinance No. 3000 cannot be
considered unconstitutional, even if applied to plaintiff Society.
But as Ordinance No. 2529 of the City of Manila, as amended, is
not applicable to plaintiff-appellant and defendant-appellee is
powerless to license or tax the business of plaintiff Society
involved herein for, as stated before, it would impair plaintiff's
right to the free exercise and enjoyment of its religious profession
and worship, as well as its rights of dissemination of religious
beliefs, We find that Ordinance No. 3000, as amended is also
inapplicable to said business, trade or occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations,
We hereby reverse the decision appealed from, sentencing
defendant return to plaintiff the sum of P5,891.45 unduly
collected from it. Without pronouncement as to costs. It is so
ordered.
EN BANC 
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG, represented by
their parents MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father AMOS
TANTOG; ET AL, petitioners, 
vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, respondent.
G.R. No. 95887 March 1, 1993
MAY AMOLO, represented by her parents MR. & MRS.
ISAIAS AMOLO; ET AL petitioners, 
vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU and ANTONIO A. SANGUTAN, respondents.
GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and
Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members or a
religious sect known as Jehovah's Witnesses may be expelled
from school (both public and private), for refusing, on account of
their religious beliefs, to take part in the flag ceremony which
includes playing (by a band) or singing the Philippine national
anthem, saluting the Philippine flag and reciting the patriotic
pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division
Superintendent of Schools of Cebu and Manuel F. Biongcog,
Cebu District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan Cebu province. All minors,
they are assisted by their parents who belong to the religious
group known as Jehovah's Witnesses which claims some 100,000
"baptized publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division
Superintendent of Schools of Cebu and Antonio A. Sangutan," the
petitioners are 25 high school and grade school students enrolled
in public schools in Asturias, Cebu, whose parents are Jehovah's
Witnesses. Both petitions were prepared by the same counsel,
Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their
classes by the public school authorities in Cebu for refusing to
salute the flag, sing the national anthem and recite the patriotic
pledge as required by Republic Act No. 1265 of July 11, 1955,
and by Department Order No. 8 dated July 21, 1955 of the
Department of Education, Culture and Sports (DECS) making the
flag ceremony compulsory in all educational institutions. Republic
Act No. 1265 provides:
Sec. 1. All educational institutions shall henceforth observe daily
flag ceremony, which shall be simple and dignified and shall
include the playing or singing of the Philippine National anthem.
Sec. 2. The Secretary of Education is hereby authorized and
directed to issue or cause to be issued rules and regulations for the
proper conduct of the flag ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag ceremony provided
by this Act and in accordance with rules and regulations issued by
the Secretary of Education, after proper notice and hearing, shall
subject the educational institution concerned and its head to
public censure as an administrative punishment which shall be
published at least once in a newspaper of general circulation.
In case of failure to observe for the second time the flag-ceremony
provided by this Act, the Secretary of Education, after proper
notice and hearing, shall cause the cancellation of the recognition
or permit of the private educational institution responsible for
such failure.
The implementing rules and regulations in Department Order No.
8 provide:
RULES AND REGULATIONS FOR CONDUCTING THE
FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS.
1. The Filipino Flag shall be displayed by all educational
institutions, public and private, every school day throughout the
year. It shall be raised at sunrise and lowered at sunset. The flag-
staff must be straight, slightly and gently tapering at the end, and
of such height as would give the Flag a commanding position in
front of the building or within the compound.
2. Every public and private educational institution shall hold a
flag-raising ceremony every morning except when it is raining, in
which event the ceremony may be conducted indoors in the best
way possible. A retreat shall be held in the afternoon of the same
day. The flag-raising ceremony in the morning shall be conducted
in the following manner:
a. Pupils and teachers or students and faculty members who are
in school and its premises shall assemble in formation facing the
flag. At command, books shall be put away or held in the left
hand and everybody shall come to attention. Those with hats shall
uncover. No one shall enter or leave the school grounds during the
ceremony.
b. The assembly shall sing the Philippine National
Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by the
school band alone. At the first note of the Anthem, the flag shall
be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart. Those
without hat may stand with their arms and hands down and
straight at the sides. Those in military or Boy Scout uniform shall
give the salute prescribed by their regulations. The salute shall be
started as the Flag rises, and completed upon last note of the
anthem.
c. Immediately following the singing of the Anthem, the assembly
shall recite in unison the following patriotic pledge (English or
vernacular version), which may bring the ceremony to a close.
23
This is required of all public schools and of private schools which
are intended for Filipino students or whose population is
predominantly Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed. x x x      
Jehovah's Witnesses admittedly teach their children not to salute
the flag, sing the national anthem, and recite the patriotic pledge
for they believe that those are "acts of worship" or "religious
devotion" (p. 10, Rollo) which they "cannot conscientiously give .
. . to anyone or anything except God" (p. 8, Rollo). They feel
bound by the Bible's command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an
image or idol representing the State (p. 10, Rollo). They think the
action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on the State's power
and invades the sphere of the intellect and spirit which the
Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children
of Jehovah's Witnesses may be expelled from school for
disobedience of R.A. No. 1265 and Department Order No. 8,
series of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary
of Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs.
Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Under a system of complete
separation of church and state in the government, the flag is
utterly devoid of any religious significance. Saluting the flag does
not involve any religious ceremony. The flag salute is no more a
religious ceremony than the taking of an oath of office by a public
official or by a candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State
thru the Secretary of Education is not imposing a religion or
religious belief or a religious test on said students. It is merely
enforcing a
non-discriminatory school regulation applicable to all alike
whether Christian, Moslem, Protestant or Jehovah's Witness. The
State is merely carrying out the duty imposed upon it by the
Constitution which charges it with supervision over and regulation
of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it
that all schools aim to develop, among other things, civic
conscience and teach the duties of citizenship.
The children of Jehovah's Witnesses cannot be exempted from
participation in the flag ceremony. They have no valid right to
such exemption. Moreover, exemption to the requirement will
disrupt school discipline and demoralize the rest of the school
population which by far constitutes the great majority.
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. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by the
Legislature thru Republic Act 1265 to promulgate said
Department Order, and its provisions requiring the observance of
the flag salute, not being a religious ceremony but an act and
profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the
constitutional provision on freedom of religion. (Balbuna, et al.
vs. Secretary of Education, et al., 110 Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been
incorporated in Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive Order No. 292) which
took effect on September 21, 1988 (one year after its publication
in the Official Gazette, Vol. 63, No. 38 of September 21, 1987).
Paragraph 5 of Section 28 gives legislative cachet to the ruling
in Gerona, thus:
5. Any teacher or student or pupil who refuses to join or
participate in the flag ceremony may be dismissed after due
investigation.
However, the petitioners herein have not raised in issue the
constitutionality of the above provision of the new Administrative
Code of 1987. They have targeted only Republic Act No. 1265
and the implementing orders of the DECS.
In 1989, the DECS Regional Office in Cebu received complaints
about teachers and pupils belonging to the Jehovah's Witnesses,
and enrolled in various public and private schools, who refused to
sing the Philippine national anthem, salute the Philippine flag and
recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty.
Marcelo M. Bacalso, Assistant Division Superintendent, recalling
this Court's decision in Gerona, issued Division Memorandum
No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R.
No. 95770) directing District Supervisors, High School Principals
and Heads of Private Educational institutions as follows:
1. Reports reaching this Office disclose that there are a number of
teachers, pupils, students, and school employees in public schools
who refuse to salute the Philippine flag or participate in the daily
flag ceremony because of some religious belief.
2. Such refusal not only undermines Republic Act No. 1265 and
the DECS Department Order No. 8, Series of 1955 (Implementing
Rules and Regulations) but also strikes at the heart of the DECS
sustained effort to inculcate patriotism and nationalism.
3. Let it be stressed that any belief that considers the flag as an
image is not in any manner whatever a justification for not
saluting the Philippine flag or not participating in flag ceremony.
Thus, the Supreme Court of the Philippine says:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)
4. As regards the claim for freedom of belief, which an
objectionist may advance, the Supreme Court asserts:
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. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)
5. Accordingly, teachers and school employees who choose not to
participate in the daily flag ceremony or to obey the flag salute
regulation spelled out in Department Order No. 8, Series of 1955,
shall be considered removed from the service after due process.
24
6. In strong language about pupils and students who do the same
the Supreme Court has this to say:
If they choose not to obey the flag salute regulation, they merely
lost the benefits of public education being maintained at the
expense of their fellow Citizens, nothing more. According to a
popular expression, they could take it or leave it! Having elected
not to comply with the regulation about the flag salute they
forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to this Office a
report on those who choose not to participate in flag ceremony or
salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770;
Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade
the children of Jehovah's Witnesses to obey the memorandum. In
the Buenavista Elementary School, the children were asked to
sign an Agreement (Kasabutan) in the Cebuano dialect promising
to sing the national anthem, place their right hand on their breast
until the end of the song and recite the pledge of allegiance to the
flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p.
20, Rolloof G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge,
Antonio A. Sangutan, met with the Jehovah's Witnesses' parents,
as disclosed in his letter of October 17, 1990, excerpts from which
reveal the following:
After two (2) fruitless confrontation meetings with the Jehovah's
Witnesses' parents on October 2, 1990 and yesterday due to their
firm stand not to salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as mandated by law
specifically Republic Act No. 1265, this Office hereby orders the
dropping from the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I up to Grade VI
effective today. xxx xxx xxx
This order is in compliance with Division Memorandum No. 108
s. 1989 dated November 17, 1989 by virtue of Department Order
No. 8 s. 1955 dated July 21, 1955 in accordance with Republic
Act No. 1265 and Supreme Court Decision of a case "Genaro
Gerona, et al., Petitioners and Appellants vs. The Honorable
Secretary of Education, et al., Respondents and Appellees' dated
August 12, 1959 against their favor. (p. 149, Rollo of G.R. No.
95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F.
Biongcog, ordered the "dropping from the rolls" of students who
"opted to follow their religious belief which is against the Flag
Salute Law" on the theory that "they forfeited their right to attend
public schools." (p. 47, Rollo of G.R. No. 95770.)
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge
[sic], Agujo Elementary School with the information that this
office is sad to order the dropping of Jeremias Diamos and
Jeaneth Diamos, Grades III and IV pupils respectively from the
roll since they opted to follow their religious belief which is
against the Flag Salute Law (R.A. 1265) and DECS Order No. 8,
series of 1955, having elected not to comply with the regulation
about the flag salute they forfeited their right to attend public
schools (Gerona, et al. vs. Sec. of Education, et al., 106
Philippines 15). However, should they change their mind to
respect and follow the Flag Salute Law they may be re-accepted.
(Sgd.) MANUEL F. BIONGCOG
District Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning
students of the Daanbantayan National High School, Agujo
Elementary School, Calape Barangay National High School,
Pinamungajan Provincial High School, Tabuelan Central School,
Canasojan Elementary School, Liboron Elementary School,
Tagaytay Primary School, San Juan Primary School and Northern
Central Elementary School of San Fernando, Cebu, upon order of
then Acting Division Superintendent Marcelo Bacalso, prompted
some Jehovah's Witnesses in Cebu to appeal to the Secretary of
Education Isidro Cariño but the latter did not answer their letter.
(p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were
similarly expelled because Dr. Pablo Antopina, who succeeded
Susana Cabahug as Division Superintendent of Schools, would
not recall the expulsion orders of his predecessor. Instead, he
verbally caused the expulsion of some more children of Jehovah's
Witnesses.
On October 31, 1990, the students and their parents filed these
special civil actions for Mandamus, Certiorari and Prohibition
alleging that the public respondents acted without or in excess of
their jurisdiction and with grave abuse of discretion — (1) in
ordering their expulsion without prior notice and hearing, hence,
in violation of their right to due process, their right to free public
education, and their right to freedom of speech, religion and
worship (p. 23, Rollo). The petitioners pray that:
c. Judgment be rendered:
i. declaring null and void the expulsion or dropping from the rolls
of herein petitioners from their respective schools;
ii. prohibiting and enjoining respondent from further barring the
petitioners from their classes or otherwise implementing the
expulsion ordered on petitioners; and
iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their respective
schools. (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a
temporary restraining order be issued enjoining the respondents
from enforcing the expulsion of the petitioners and to re-admit
them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining
order and a writ of preliminary mandatory injunction commanding
the respondents to immediately re-admit the petitioners to their
respective classes until further orders from this Court (p.
57, Rollo).
The Court also ordered the Secretary of Education and Cebu
District Supervisor Manuel F. Biongcog to be impleaded as
respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated
comment to the petitions (p. 98, Rollo) defending the expulsion
orders issued by the public respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's Witnesses produce
rebellious and anti-social school children and consequently
disloyal and mutant Filipino citizens.
2. There are no new and valid grounds to sustain the charges of
the Jehovah's Witnesses that the DECS' rules and regulations on
the flag salute ceremonies are violative of their freedom of
religion and worship.
3. The flag salute is devoid of any religious significance; instead,
it inculcates respect and love of country, for which the flag stands.
4. The State's compelling interests being pursued by the DECS'
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.
25
5. The issue is not freedom of speech but enforcement of law and
jurisprudence.
6. State's power to regulate repressive and unlawful religious
practices justified, besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with the
enactment of Executive Order No. 292 (The Administrative Code
of 1987).
Our task here is extremely difficult, for the 30-year old decision of
this court in Gerona upholding the flag salute law and approving
the expulsion of students who refuse to obey it, is not lightly to be
trifled with.
It is somewhat ironic however, that after the Gerona ruling had
received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that the
time has come to re-examine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite
the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, 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 (Sec. 5, Article III, 1987 Constitution; Article IV, Section
8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights,
for it involves the relationship of man to his Creator (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).
The right to religious profession and worship has a two-fold
aspect, vis., freedom to believe and freedom to act on one's belief.
The first is absolute as long as the belief is confined within the
realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare
(J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts"
or behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag
ceremony. They quietly stand at attention during the flag
ceremony to show their respect for the right of those who choose
to participate in the solemn proceedings (Annex F, Rollo of G.R.
No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they

do not engage in disruptive behavior, there is no warrant for their
expulsion.
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 vs.
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.”
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past or perhaps
conducted with very few participants, and the time will come
when we would have citizens untaught and uninculcated in and
not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism — a pathetic, even
tragic situation, and all because a small portion of the school
population imposed its will, demanded and was granted an
exemption. (Gerona, p. 24.)
has not come to pass. 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 vs. Sec. of Education,
106 Phil. 2, 24). 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 of profession and be taught the virtues of
"patriotism, respect for human rights, appreciation for 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 had
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 dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette,
319 U.S. 624 (1943):
. . . To believe that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering estimate of the
appeal of our institutions to free minds. . . . When they [diversity]
are so harmless to others or to the State as those we deal with
here, the price is not too great. But freedom to differ is not limited
to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.
Furthermore, let it be noted that coerced unity and loyalty even to
the country, . . . — 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.)
Moreover, the expulsion of members of Jehovah's Witnesses from
the schools where they are enrolled will violate their right as
Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote
the right of all citizens to quality education . . . and to make such
education accessible to all (Sec. 1, Art. XIV).
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 labor group:
. . . 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 interests" intervenes. (Sherbert vs. Berner,
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. Nevertheless, their
right not to participate in the flag ceremony does not give them a
right to disrupt such patriotic exercises. Paraphrasing the warning
cited by this Court in Non vs. Dames II, 185 SCRA 523, 535,
while the highest regard must be afforded their right to the free
exercise of their religion, "this should not be taken to mean that
school authorities are powerless to discipline them" if they should
commit breaches of the peace by actions that offend the
26
sensibilities, both religious and patriotic, of other persons. If they
quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem
and recite the patriotic pledge, we do not see how such conduct
may possibly disturb the peace, or pose "a grave and present
danger 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 (German vs. Barangan, 135 SCRA
514, 517).
Before we close this decision, it is appropriate to recall the
Japanese occupation of our country in 1942-1944 when every
Filipino, regardless of religious persuasion, in fear of the invader,
saluted the Japanese flag and bowed before every Japanese
soldier. Perhaps, if petitioners had lived through that dark period
of our history, they would not quibble now about saluting the
Philippine flag. For when liberation came in 1944 and our own
flag was proudly hoisted aloft again, it was a beautiful sight to
behold that made our hearts pound with pride and joy over the
newly-regained freedom and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right
under our Constitution to refuse to salute the Philippine flag on
account of their religious beliefs, we hope, nevertheless, that
another foreign invasion of our country will not be necessary in
order for our countrymen to appreciate and cherish the Philippine
flag.
WHEREFORE, the petition for certiorari and prohibition is
GRANTED. The expulsion orders issued by the public
respondents against the petitioners are hereby ANNULLED AND
SET ASIDE. The temporary restraining order which was issued
by this Court is hereby made permanent.
SO ORDERED.
EN BANC 
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, represented by
their parents, MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father, AMOS
TANTOG, ET AL petitioners, 
vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, and MR. MANUEL F. BIONGCOG, Cebu District
Supervisor, respondents.
G.R. No. 95887 December 29, 1995
MAY AMOLO, represented by her parents MR. & MRS.
ISAIAS AMOLO, ET AL petitioners, 
vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, and ANTONIO A. SANGUTAN, respondents.
R E SO L U T I O N
KAPUNAN, J.:

The State moves for a reconsideration of our decision dated
March 1, 1993 granting private respondents' petition
for certiorari and prohibition and annulling the expulsion orders
issued by the public respondents therein on the ground that the
said decision created an exemption in favor of the members of the
religious sect, the Jehovah's Witnesses, in violation of the
"Establishment Clause" of the Constitution. The Solicitor General,
on behalf of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for
special treatment in favor of a minority sect even on the basis of a
claim of religious freedom may be criticized as granting
preference to the religious beliefs of said sect in violation of the
"non-establishment guarantee" provision of the Constitution.
Surely, the decision of the Court constitutes a special favor which
immunizes religious believers such as Jehovah's Witnesses to the
law and the DECS rules and regulations by interposing the claim
that the conduct required by law and the rules and regulation (sic)
are violative of their religious beliefs. The decision therefore is
susceptible to the very criticism that the grant of exemption is a
violation of the "non-establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious
minority poses a risk of collision course with the "equal protection
of the laws" clause in respect of the non-exempt, and, in public
schools, a collision course with the "non-establishment
guarantee."
Additionally the public respondent insists that this Court adopt a
"neutral stance" by reverting to its holding in Gerona declaring the
flag as being devoid of any religious significance. He stresses that
the issue here is not curtailment of religious belief but regulation
of the exercise of religious belief. Finally, he maintains that the
State's interests in the case at bench are constitutional and legal
obligations to implement the law and the constitutional mandate
to inculcate in the youth patriotism and nationalism and to
encourage their involvement in public and civic affairs, referring
to the test devised by the United States Supreme Court in U.S.
vs. O'Brien.1
II
All the petitioners in the original case2 were minor school
children, and members of the sect, Jehovah's Witnesses (assisted
by their parents) who were expelled from their classes by various
public school authorities in Cebu for refusing to salute the flag,
sing the national anthem and recite the patriotic pledge as required
by Republic Act No. 1265 of July 11, 1955 and by Department
Order No. 8, dated July 21, 1955 issued by the Department of
Education. Aimed primarily at private educational institutions
which did not observe the flag ceremony exercises, Republic Act
No. 1265 penalizes all educational institutions for failure or
refusal to observe the flag ceremony with public censure on first
offense and cancellation of the recognition or permit on second
offense.
The implementing regulations issued by the Department of
Education thereafter detailed the manner of observance of the
same. Immediately pursuant to these orders, school officials in
Masbate expelled children belonging to the sect of the Jehovah's
Witnesses from school for failing or refusing to comply with the
flag ceremony requirement. Sustaining these expulsion orders,
this Court in the 1959 case of Gerona vs. Secretary of
Education3 held that:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Considering the complete
separation of church and state in our system of government, the
flag is utterly devoid of any religious significance. Saluting the
flag consequently does not involve any religious ceremony. . . .
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 meanings to be
given to a certain ritual or ceremony as there are religious groups
or sects or followers.”
Upholding religious freedom as a fundamental right deserving the
"highest priority and amplest protection among human rights,"
this Court, in Ebralinag vs. Division Superintendent of Schools of
Cebu4 re-examined our over two decades-old decision
in Gerona and reversed expulsion orders made by the public
respondents therein as violative of both the free exercise of
religion clause and the right of citizens to education under the
1987 Constitution.5
From our decision of March 1, 1993, the public respondents filed
a motion for reconsideration on grounds hereinabove stated. After
a careful study of the grounds adduced in the government's
Motion For Reconsideration of our original decision, however, we
find no cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the
religious sect, the Jehovah's Witnesses are widely known and are
equally widely disseminated in numerous books, magazines,
brochures and leaflets distributed by their members in their house
to house distribution efforts and in many public places. Their
27
refusal to render obeisance to any form or symbol which smacks
of idolatry is based on their sincere belief in the biblical injunction
found in Exodus 20:4,5, against worshipping forms or idols other
than God himself. The basic assumption in their universal refusal
to salute the flags of the countries in which they are found is that
such a salute constitutes an act of religious devotion forbidden by
God's law. This assumption, while "bizarre" to others is firmly
anchored in several biblical passages.6
And yet, while members of Jehovah's Witnesses, on the basis of
religious convictions, refuse to perform an act (or acts) which they
consider proscribed by the Bible, they contend that such refusal
should not be taken to indicate disrespect for the symbols of the
country or evidence that they are wanting in patriotism and
nationalism. They point out that as citizens, they have an excellent
record as law abiding members of society even if they do not
demonstrate their refusal to conform to the assailed orders by
overt acts of conformity. On the contrary, they aver that they
show their respect through less demonstrative methods
manifesting their allegiance, by their simple obedience to the
country's laws,7 by not engaging in antigovernment activities of
any kind,8 and by paying their taxes and dues to society as self-
sufficient members of the community.9 While they refuse to salute
the flag, they are willing to stand quietly and peacefully at
attention, hands on their side, in order not to disrupt the ceremony
or disturb those who believe differently.10
The religious beliefs, practices and convictions of the members of
the sect as a minority are bound to be seen by others as odd and
different and at divergence with the complex requirements of
contemporary societies, particularly those societies which require
certain practices as manifestations of loyalty and patriotic
behavior. Against those who believe that coerced loyalty and
unity are mere shadows of patriotism, the tendency to exact "a
hydraulic insistence on conformity to majoritarian standards," 11 is
seductive to the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes
as the responsibility "to inculcate in the minds of the youth the
values of patriotism and nationalism and to encourage their
involvement in public and civic affairs." The teaching of these
values ranks at the very apex of education's "high responsibility"
of shaping up the minds of the youth in those principles which
would mold them into responsible and productive members of our
society. However, the government's interest in molding the young
into patriotic and civic spirited citizens is "not totally free from a
balancing process"12 when it intrudes into other fundamental
rights such as those specifically protected by the Free Exercise
Clause, the constitutional right to education and the unassailable
interest of parents to guide the religious upbringing of their
children in accordance with the dictates of their conscience and

their sincere religious beliefs.13 Recognizing these values, Justice
Carolina Grino-Aquino, the writer of the original opinion,
underscored that a generation of Filipinos which cuts its teeth on
the Bill of Rights would find abhorrent the idea that one may be
compelled, on pain of expulsion, to salute the flag sing the
national anthem and recite the patriotic pledge during a flag
ceremony.14 "This coercion of conscience has no place in a free
society".15
The State's contentions are therefore, unacceptable, for no less
fundamental than the right to take part is the right to stand
apart.16 In the context of the instant case, the freedom of religion
enshrined in the Constitution should be seen as the rule, not the
exception. To view the constitutional guarantee in the manner
suggested by the petitioners would be to denigrate the status of a
preferred freedom and to relegate it to the level of an abstract
principle devoid of any substance and meaning in the lives of
those for whom the protection is addressed. As to the contention
that the exemption accorded by our decision benefits a privileged
few, it is enough to re-emphasize that "the constitutional
protection of religious freedom terminated disabilities, it did not
create new privileges. It gave religious equality, not civil
immunity."17 The essence of the free exercise clause is freedom
from conformity to religious dogma, not freedom from conformity
to law because of religious dogma.18 Moreover, the suggestion
implicit in the State's pleadings to the effect that the flag
ceremony requirement would be equally and evenly applied to all
citizens regardless of sect or religion and does not thereby
discriminate against any particular sect or denomination escapes
the fact that "[a] regulation, neutral on its face, may in its
application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of
religion."19
III
The ostensible interest shown by petitioners in preserving the flag
as the symbol of the nation appears to be integrally related to
petitioner's disagreement with the message conveyed by the
refusal of members of the Jehovah's Witness sect to salute the flag
or participate actively in flag ceremonies on religious
grounds.20 Where the governmental interest clearly appears to
be unrelated to the suppression of an idea, a religious doctrine or
practice or an expression or form of expression, this Court will not
find it difficult to sustain a regulation. However, regulations
involving this area are generally held against the most exacting
standards, and the zone of protection accorded by the Constitution
cannot be violated, except upon a showing of a clear and present
danger of a substantive evil which the state has a right to
protect.21 Stated differently, in the case of a regulation which
appears to abridge a right to which the fundamental law accords
high significance it is the regulation, not the act (or refusal to act),
which is the exception and which requires the court's strictest
scrutiny. In the case at bench, the government has not shown that
refusal to do the acts of conformity exacted by the assailed orders,
which respondents point out attained legislative cachet in the
Administrative Code of 1987, would pose a clear and present
danger of a danger so serious and imminent, that it would prompt
legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S.
Supreme Court held that the "State's asserted interest in preserving
the fag as a symbol of nationhood and national unity was an
interest related to the suppression of free expression . . . because
the State's concern with protecting the flag's symbolic meaning is
implicated only when a person's treatment of the flag
communicates some message. 22 While the very concept of
ordered liberty precludes this Court from allowing every
individual to subjectively define his own standards on matters of
conformity in which society, as a whole has important interests,
the records of the case and the long history of flag salute cases
abundantly supports the religious quality of the claims adduced by
the members of the sect Jehovah's Witnesses. Their treatment of
flag as a religious symbol is well-founded and well-documented
and is based on grounds religious principle. The message
conveyed by their refusal to participate in the flag ceremony is
religious, shared by the entire community of Jehovah's Witnesses
and is intimately related to their theocratic beliefs and convictions.
The subsequent expulsion of members of the sect on the basis of
the regulations assailed in the original petitions was therefore
clearly directed against religious practice. It is obvious that the
assailed orders and memoranda would gravely endanger the free
exercise of the religious beliefs of the members of the sect and
their minor children.
Furthermore, the view that the flag is not a religious but a neutral,
secular symbol expresses a majoritarian view intended to stifle the
expression of
the belief that an act of saluting the flag might sometimes be — to
some individuals — so offensive as to be worth their giving up
another constitutional right — the right to education. Individuals
or groups of individuals get from a symbol the meaning they put
to it.23 Compelling members of a religious sect to believe
otherwise on the pain of denying minor children the right to an
education is a futile and unconscionable detour towards instilling
virtues of loyalty and patriotism which are best instilled and
communicated by painstaking and non-coercive methods. Coerced
loyalties, after all, only serve to inspire the opposite. The methods
utilized to impose them breed resentment and dissent. Those who
attempt to coerce uniformity of sentiment soon find out that the
only path towards achieving unity is by way of suppressing
dissent.24 In the end, such attempts only find the "unanimity of the
graveyard."25
28
To the extent to which members of the Jehovah's Witnesses sect
assiduously pursue their belief in the flag's religious symbolic
meaning, the State cannot, without thereby transgressing
constitutionally protected boundaries, impose the contrary view
on the pretext of sustaining a policy designed to foster the
supposedly far-reaching goal of instilling patriotism among the
youth. While conceding to the idea — adverted to by the Solicitor
General — that certain methods of religious expression may be
prohibited26 to serve legitimate societal purposes, refusal to
participate in the flag ceremony hardly constitutes a form of
religious expression so offensive and noxious as to prompt
legitimate State intervention. It is worth repeating that the absence
of a demonstrable danger of a kind which the State is empowered
to protect militates against the extreme disciplinary methods
undertaken by school authorities in trying to enforce regulations
designed to compel attendance in flag ceremonies. Refusal of the
children to participate in the flag salute ceremony would not
interfere with or deny the rights of other school children to do so.
It bears repeating that their absence from the ceremony hardly
constitutes a danger so grave and imminent as to warrant the
state's intervention.
Finally, the respondents' insistence on the validity of the actions
taken by the government on the basis of their averment that "a
government regulation of expressive conduct is sufficiently
justified if it is within the constitutional power of the government
(and) furthers an important and substantial government
interest"27 misses the whole point of the test devised by the United
States Supreme Court in O'Brien, cited by respondent, because the
Court therein was emphatic in stating that "the government
interest (should be) unrelated to the suppression of free
expression." We have already stated that the interest in regulation
in the case at bench was clearly related to the suppression of an
expression directly connected with the freedom of religion and
that respondents have not shown to our satisfaction that the
restriction was prompted by a compelling interest in public order
which the state has a right to protect. Moreover, if we were to
refer (as respondents did by referring to the test in O'Brien) to the
standards devised by the US Supreme Court in determining the
validity or extent of restrictive regulations impinging on the
freedoms of the mind, then the O'Brien standard is hardly
appropriate because the standard devised in O'Brien only applies
if the State's regulation is not related to communicative conduct.
If a relationship exists, a more demanding standard is applied. 28
The responsibility of inculcating the values of patriotism,
nationalism, good citizenship, and moral uprightness is a
responsibility shared by the State with parents and other societal
institutions such as religious sects and denominations. The
manner in which such values are demonstrated in a plural society
occurs in ways so variable that government cannot make claims to

the exclusivity of its methods of inculcating patriotism so all-
encompassing in scope as to leave no room for appropriate
parental or religious influences. Provided that those influences do
not pose a clear and present danger of a substantive evil to society
and its institutions, expressions of diverse beliefs, no matter how
upsetting they may seem to the majority, are the price we pay for
the freedoms we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby
DENIED.
SO ORDERED
EN BANC
G.R. No. L-34854 November 20, 1978
FORTUNATO R. PAMIL, petitioner-appellant,  the Chief Justice, entertaining no doubt as to his lack of eligibility,
vs. HONORABLE VICTORINO C. TELERON, as Judge of
the Court of First Instance of Bohol, Branch III, and REV.
FR. MARGARITO R. GONZAGA, respondents-appellees.
FERNANDO, J.:
The novel question raised in this certiorari proceeding concerns
the eligibility of an ecclesiastic to an elective municipal position.
Private respondent, Father Margarito R. Gonzaga, was, in 1971,
elected to the position of municipal mayor of Alburquerque,
Bohol. 1 Therefore, he was duly proclaimed. A suit for quo
warranto was then filed by petitioner, himself an aspirant for the
office, for his disqualification 2 based on this Administrative Code
provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons
receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality." 3 The
suit did not prosper, respondent Judge sustaining the right of
Father Gonzaga to the office of municipal mayor. He ruled that
such statutory ineligibility was impliedly repealed by the Election
Code of 1971. The matter was then elevated to this Tribunal by
petitioner. It is his contention that there was no such implied
repeal, that it is still in full force and effect. Thus was the specific
question raised.
There is no clear-cut answer from this Tribunal. After a lengthy
and protracted deliberation, the Court is divided on the issue.
Seven members of the Court are of the view that the judgment
should be affirmed as the challenged provision is no longer
operative either because it was superseded by the 1935
Constitution or repealed. Outside of the writer of this opinion, six
other Justices are of this mind They are Justices Teehankee,
Muñoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero.
For them, the overriding principle of the supremacy of the
Constitution or, at the very least, the repeal of such provision bars
a reversal. 4 The remaining five members of this Court, Chief
Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino,
on the other hand, hold the position that such a prohibition against
an ecclesiastic running for elective office is not tainted with any
constitutional infirmity.
The vote is thus indecisive. While five members of the Court
constitute a minority, the vote of the remaining seven does not
suffice to render the challenged provision ineffective. Section
2175 of the Revised Administrative Code, as far as ecclesiastics
are concerned, must be accorded respect. The presumption of
validity calls for its application. Under the circumstances,
certiorari lies. That is the conclusion arrived at by the writer of
this opinion, joined by Justice Concepcion Jr., Santos, Fernandez,
and Guerrero. They have no choice then but to vote for the
reversal of the lower court decision and declare ineligible
respondent Father Margarito R. Gonzaga for the office of
municipal mayor. With the aforesaid five other members, led by
this petition for certiorari must be granted.
Except for the dispositive part announcing the judgment of the
Court, the remainder of this opinion sets forth the reasons why
there are constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the
1935 Constitution, as it is now under the present Charter, it is
explicitly declared: "No religious test shall be required for the
exercise of civil or political rights." 5 The principle of the
paramount character of the fundamental law 6 thus comes into
play. There are previous rulings to that effect. 6 The ban imposed
by the Administrative Code cannot survive. So the writer of this
opinion would hold.
2. This is to conform to this provision of the 1935 Charter: "All
laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the
Congress of the Philippines, and all references in such laws to the
government or officials of the Philippines shall be construed, in so
far as applicable, to refer to the Government and corresponding
officials under this Constitution." 7 It was first applied in People
v. Linsangan, 8 decided in December, 1935, barely a month after
that Constitution took effect. This Court held that Section 2718 of
the Revised Administrative Code that would allow the prosecution
of a person who remains delinquent in the payment of cedula
tax, 9 was no longer in force. As stated by the then Justice, later
Chief Justice, Abad Santos, after setting forth that the Constitution
prohibits the imprisonment for debt or non-payment of poll
tax: 10 "It seems too clear to require demonstration that section
2718 of the Revised Administrative Code is inconsistent with
section 1, clause 12, of Article Ill of the Constitution in that, while
the former authorizes imprisonment for non-payment of the poll
or cedula tax, the latter forbids it. It follows that upon the
inauguration of the Government of the Commonwealth, said
29
section 2718 of the Revised Administrative Code became
inoperative, and no judgment of conviction can be based
thereon." 11
De los Santos v. Mallare 12 came next. The President, under the
Revised Administrative Code, could remove at pleasure any of the
appointive officials under the Charter of the City of
Baguio. 13 Relying on such a provision, the then President Quirino
removed petitioner De los Santos, who was appointed City
Engineer of Baguio on July 16, 1946, and chose in his place
respondent Gil R. Mallare. Why such a power could not pass the
test of validity under the 1935 Constitution was pointed out by
Justice Tuason thus: "So, unlike legislation that is passed in
defiance of the Constitution, assertive and menacing, the
questioned part of section 2545 of the Revised Administrative
Code does not need a positive declaration of nullity by the court to
put it out of the way. To all intents and purposes, it is non-
existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before the petitioner was
appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the
light of the cited provision of the 1935 Constitution, as
authoritatively construed, Article 145 of the Revised Penal Code
was found to be inoperative. As therein provided, the penalty
of prision correccional is imposed on any public officer or
employee who, while the Congress was in regular or special
session, would arrest or search a member thereof, except in case
he had committed a crime punishable by a penalty higher
than prision mayor. This Court ruled that the Revised Penal Code
extended unduly the legislative privilege of freedom from arrest
as ordained in the Constitution. 16 Such a provision then was
contrary to and in defiance of the clear expression of the will of
the Constitutional Convention of 1934 that such immunity was
never intended to exempt members of a legislative body from an
arrest for a criminal offense, the phrase treason, felony and breach
of the peace being all-inclusive. Reference was likewise made to
the prevailing American doctrine to that effect as enunciated
by Williamson v. United States. 17
3. It would be an unjustified departure from a settled principle of
the applicable construction of the provision on what laws remain
operative after 1935 if the plea of petitioner in this case were to be
heeded. 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. To so exclude them is to
impose a religious test. Torcaso v. Watkins 18 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." 19
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. It is not a valid
argument against this conclusion to assert that under the
Philippine Autonomy Act of 1916, there was such a prohibition
against a religious test, and yet such a ban on holding a municipal
position had not been nullified. It suffices to answer that no
question was raised as to its validity. In Vilar v.
Paraiso, 20 decided under the 1935 Constitution, it was assumed
that there was no conflict with the fundamental law.
4. This is the first case then where this Court has to face squarely
such an issue. This excerpt from the opinion of Justice Moreland
in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has
a force unimpaired by the passage of time: "Relative to the theory
that Act No. 1627 has stood so long and been silently acquiesced
in for so great a length of time that it should not be disturbed, it
may be said that the fact that certain individuals have, by
ignorance or neglect, failed to claim their fundamental rights,
furnishes no reason why another individual, alert to his rights and
their proper enforcement, should be prevented from asserting and
sustaining those rights. The fact that Smith and Jones have failed
to demand their constitutional rights furnishes no basis for the
refusal to consider and uphold the constitutional rights of Richard
Roe In the case of Sadler v. Langham (34 Ala. 311), this same
question was under consideration and the court in resolving it
said: 'It may be urged, that these statutes have stood, and been
silently acquiesced in for so great a length of time, they should not
now be disturbed. We are sensible of the force of this argument. It
will be observed, however, that in Tennessee, the decision which
declared the private road law unconstitutional was pronounced
forty years after the enact. judgment of the statute; and in New
York, after seventy years had elapsed. It is, perhaps, never too late
to re- establish constitutional rights, the observance of which had
been silently neglected." 22 To support such a conclusion, no less
than the great Chief Justice Marshall, speaking for this Court
in United States v. More, in disposing of a contention by one of
the parties as to appellate jurisdiction having been previously
exercised and therefore beyond dispute was likewise relied upon.
Thus: "No question was made in that case as to the jurisdiction
petition. It passed sub silentio, and the court does not consider
itself bound by that case. 23 So it should be in this litigation. As set
forth at the outset, it is not even necessary to annul the challenged
Administrative Code provision. It is merely declared inoperative
by virtue of the mandate of the 1935 Constitution, similarly found
in the present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight
votes needed to give it binding force. The attack on the continuing
effectivity of Section 2175 having failed, it must be, as noted at
the outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The
judgment a quo is reversed and set aside. Respondent Gonzaga is
hereby ordered immediately to vacate the mayoralty of the
municipality of Albuquerque, Bohol, there being a failure to elect.
No pronouncement as to costs.
Iglesia ni Cristo vs CA (recycle from Freedom of Speech &
Assembly, Prior Restraint)
EN BANC
A.M. No. P-02-1651               August 4, 2003
ALEJANDRO ESTRADA, Complainant,  is no truth as to the veracity of the allegation" and challenged
vs. SOLEDAD S. ESCRITOR, Respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional
law where man stands accountable to an authority higher than the
state. To be held on balance are the state’s interest and the
respondent’s religious freedom. In this highly sensitive area of
law, the task of balancing between authority and liberty is most
delicate because to the person invoking religious freedom, the
consequences of the case are not only temporal. The task is not
made easier by the American origin of our religion clauses and the
wealth of U.S. jurisprudence on these clauses for in the United
States, there is probably no more intensely controverted area of
constitutional interpretation than the religion clauses. 1 The U.S.
Supreme Court itself has acknowledged that in this constitutional
area, there is "considerable internal inconsistency in the opinions
of the Court."2 As stated by a professor of law, "(i)t is by now
notorious that legal doctrines and judicial decisions in the area of
religious freedom are in serious disarray. In perhaps no other area
of constitutional law have confusion and inconsistency achieved
such undisputed sovereignty."3 Nevertheless, this thicket is the
only path to take to conquer the mountain of a legal problem the
case at bar presents. Both the penetrating and panoramic view this
30
climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom
question arose in an administrative case involving only one person
does not alter the paramount importance of the question for the
"constitution commands the positive protection by government of
religious freedom -not only for a minority, however small- not
only for a majority, however large- but for each of us." 4
I. Facts
The facts of the case will determine whether respondent will
prevail in her plea of religious freedom. It is necessary therefore
to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant
Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Piñas City,
requesting for an investigation of rumors that respondent Soledad
Escritor, court interpreter in said court, is living with a man not
her husband. They allegedly have a child of eighteen to twenty
years old. Estrada is not personally related either to Escritor or her
partner and is a resident not of Las Piñas City but of Bacoor,
Cavite. Nevertheless, he filed the charge against Escritor as he
believes that she is committing an immoral act that tarnishes the
image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her
act.5
Judge Caoibes referred the letter to Escritor who stated that "there
Estrada to "appear in the open and prove his allegation in the
proper forum."6 Judge Caoibes set a preliminary conference on
October 12, 2000. Escritor moved for the inhibition of Judge
Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said
case was still pending in the Office of the Court Administrator
(OCA). Escritor’s motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada
confirmed that he filed the letter-complaint for immorality against
Escritor because in his frequent visits to the Hall of Justice of Las
Piñas City, he learned from conversations therein that Escritor
was living with a man not her husband and that she had an
eighteen to twenty-year old son by this man. This prompted him
to write to Judge Caoibes as he believed that employees of the
judiciary should be respectable and Escritor’s live-in arrangement
did not command respect.7
Respondent Escritor testified that when she entered the judiciary
in 1999,8 she was already a widow, her husband having died in
1998.9 She admitted that she has been living with Luciano
Quilapio, Jr. without the benefit of marriage for twenty years and
that they have a son. But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and Bible Tract

Society, their conjugal arrangement is in conformity with their
religious beliefs. In fact, after ten years of living together, she
executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted
Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because
of having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before ‘Jehovah’ God
and before all persons to be held to and honored in full accord
with the principles of God’s Word. I will continue to seek the
means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances
make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor’s partner, Quilapio, executed a similar pledge on the
same day.11 Both pledges were executed in Atimonan, Quezon and
signed by three witnesses. At the time Escritor executed her
pledge, her husband was still alive but living with another woman.
Quilapio was likewise married at that time, but had been separated
in fact from his wife. During her testimony, Escritor volunteered
to present members of her congregation to confirm the
truthfulness of their "Declarations of Pledging Faithfulness," but
Judge Caoibes deemed it unnecessary and considered her
identification of her signature and the signature of Quilapio
sufficient authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel
B. Fernandez, Jr., who, in turn, endorsed the same to Court
Administrator Alfredo L. Benipayo. On July 17, 2001, the Court,
upon recommendation of Acting Court Administrator Zenaida N.
Elepaño, directed Escritor to comment on the charge against her.
In her comment, Escritor reiterated her religious congregation’s
approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the
veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1
and Exhibit 2) duly signed by both respondent and her mate in
marital relationship with the witnesses concurring their
acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before
"JEHOVAH" God and before all persons to be held to and
honored in full accord with the principles of God’s Word.x x x       congregation?
Undersigned submits to the just, humane and fair discretion of the
Court with verification from the WATCH TOWER BIBLE and
TRACT SOCIETY, Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her case. 13
Deputy Court Administrator Christopher O. Lock recommended
that the case be referred to Executive Judge Bonifacio Sanz
Maceda, RTC Branch 255, Las Piñas City for investigation, report
and recommendation. In the course of Judge Maceda’s
investigation, Escritor again testified that her congregation allows
her conjugal arrangement with Quilapio and it does not consider it
immoral. She offered to supply the investigating judge some
clippings which explain the basis of her congregation’s belief and
practice regarding her conjugal arrangement. Escritor started
living with Quilapio twenty years ago when her husband was still
alive but living with another woman. She met this woman who
confirmed to her that she was living with her (Escritor’s)
husband.14
Gregorio Salazar, a member of the Jehovah’s Witnesses since
1985, also testified. He had been a presiding minister since 1991
and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for
executing a "Declaration of Pledging Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic),
can you cite some particular rules and regulations in your
congregation?
A: Well, we of course, talk to the persons with regards (sic) to all
the parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge
of faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the
elders of the congregation; the couple, who is a member (sic) of
the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation
with this document?
A: Actually, sir, the signing of that document, ah, with the couple
has consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on record
before God and man that they are faithful to each other. As if that
relation is validated by God.
31
Q: From your explanation, Minister, do you consider it a pledge
or a document between the parties, who are members of the
A: It is a pledge and a document. It is a declaration, pledge of a
(sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the
one who contracted with the opposite member of my
congregation, opposite sex, and that this document will give us the
right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or
living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in
the Book of Matthew, Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said "that everyone divorcing his
wife, except on account of fornication, makes her a subject for
adultery, and whoever marries a divorced woman commits
adultery.15
Escritor and Quilapio transferred to Salazar’s Congregation, the
Almanza Congregation in Las Piñas, in May 2001. The
declarations having been executed in Atimonan, Quezon in 1991,
Salazar had no personal knowledge of the personal circumstances
of Escritor and Quilapio when they executed their declarations.
However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered
comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the
Atimonan Congregation when they executed their declarations.
Escritor and Quilapio’s declarations are recorded in the Watch
Tower Central office. They were executed in the usual and
approved form prescribed by the Watch Tower Bible and Tract
Society which was lifted from the article, "Maintaining Marriage
in Honor Before God and Men," 16 in the March 15, 1977 issue of
the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the
Jehovah’s Witnesses congregation and is binding within the
congregation all over the world except in countries where divorce
is allowed. The Jehovah’s congregation requires that at the time
the declarations are executed, the couple cannot secure the civil

authorities’ approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to
check the couple’s marital status before giving imprimatur to the
conjugal arrangement. The execution of the declaration finds
scriptural basis in Matthew 5:32 that when the spouse commits
adultery, the offended spouse can remarry. The marital status of
the declarants and their respective spouses’ commission of
adultery are investigated before the declarations are executed.
Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status
before the declaration was approved and the declaration is valid
everywhere, including the Almanza Congregation. That Escritor’s
and Quilapio’s declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan
Congregation. Salazar confirmed from the congregation’s branch
office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby
lifting the legal impediment to marry on her part, her mate is still
not capacitated to remarry. Thus, their declarations remain valid.
Once all legal impediments for both are lifted, the couple can
already register their marriage with the civil authorities and the
validity of the declarations ceases. The elders in the congregations
can then solemnize their marriage as authorized by Philippine law.
In sum, therefore, insofar as the congregation is concerned, there
is nothing immoral about the conjugal arrangement between
Escritor and Quilapio and they remain members in good standing
in the congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela
City Congregation of the Jehovah’s Witnesses since 1974 and
member of the headquarters of the Watch Tower Bible and Tract
Society of the Philippines, Inc., presented the original copy of the
magazine article entitled, "Maintaining Marriage Before God and
Men" to which Escritor and Minister Salazar referred in their
testimonies. The article appeared in the March 15, 1977 issue of
the Watchtower magazine published in Pennsylvania, U.S.A.
Felix S. Fajardo, President of the Watch Tower Bible and Tract
Society of the Philippines, Inc., authorized Reyes to represent him
in authenticating the article. The article is distributed to the
Jehovah’s Witnesses congregations which also distribute them to
the public.18
The parties submitted their respective memoranda to the
investigating judge. Both stated that the issue for resolution is
whether or not the relationship between respondent Escritor and
Quilapio is valid and binding in their own religious congregation,
the Jehovah’s Witnesses. Complainant Estrada adds however, that
the effect of the relationship to Escritor’s administrative liability
must likewise be determined. Estrada argued, through counsel,
that the Declaration of Pledging Faithfulness recognizes the
supremacy of the "proper public authorities" such that she bound
herself "to seek means to . . . legalize their union." Thus, even
assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to
the rest of the congregation that she and her mate are a respectable
and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law
for government employees. To rule otherwise would create a
dangerous precedent as those who cannot legalize their live-in
relationship can simply join the Jehovah’s Witnesses congregation
and use their religion as a defense against legal liability. 19
On the other hand, respondent Escritor reiterates the validity of
her conjugal arrangement with Quilapio based on the belief and
practice of her religion, the Jehovah’s Witnesses. She quoted
portions of the magazine article entitled, "Maintaining Marriage
Before God and Men," in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah’s Witnesses admit
and recognize (sic) the supremacy of the proper public authorities
in the marriage arrangement. However, it is helpful to understand
the relative nature of Caesar’s authority regarding marriage. From
country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming
entangled in a confusion of technicalities, the Christian, or the one
desiring to become a disciple of God’s Son, can be guided by
basic Scriptural principles that hold true in all cases.
God’s view is of first concern. So, first of all the person must
consider whether that one’s present relationship, or the
relationship into which he or she contemplates entering, is one
that could meet with God’s approval, or whether in itself, it
violates the standards of God’s Word. Take, for example, the
situation where a man lives with a wife but also spends time living
with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can
never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so. The
only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of one’s immediate family,
or a homosexual relationship or other such situation condemned
by God’s Word. It is not the lack of any legal validation that
makes such relationships unacceptable; they are in themselves
unscriptural and hence, immoral. Hence, a person involved in
such a situation could not make any kind of "Declaration of
Faithfulness," since it would have no merit in God’s eyes.
32
If the relationship is such that it can have God’s approval, then, a
second principle to consider is that one should do all one can to
establish the honorableness of one’s marital union in the eyes of
all. (Heb. 13:4). If divorce is possible, then such step should now
be taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil
validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with
the principles of God’s Word, and if one has done all that can
reasonably be done to have it recognized by civil authorities and
has been blocked in doing so, then, a Declaration Pledging
Faithfulness can be signed. In some cases, as has been noted, the
extreme slowness of official action may make accomplishing of
legal steps a matter of many, many years of effort. Or it may be
that the costs represent a crushingly heavy burden that the
individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation
with the basis for viewing the existing union as honorable while
the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as
a Minister of Jehovah God, should be able to approach the matter
in a balanced way, neither underestimating nor overestimating the
validation offered by the political state. She always gives primary
concern to God’s view of the union. Along with this, every effort
should be made to set a fine example of faithfulness and devotion
to one’s mate, thus, keeping the marriage "honorable among all."
Such course will bring God’s blessing and result to the honor and
praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge
that complainant’s Memorandum came from Judge Caoibes’
chambers21 whom she claims was merely using petitioner to
malign her.
In his Report and Recommendation, investigating judge Maceda
found Escritor’s factual allegations credible as they were
supported by testimonial and documentary evidence. He also
noted that "(b)y strict Catholic standards, the live-in relationship
of respondent with her mate should fall within the definition of
immoral conduct, to wit: ‘that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion
of the good and respectable members of the community’ (7 C.J.S.
959)’ (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed
out, however, that "the more relevant question is whether or not to
exact from respondent Escritor, a member of ‘Jehovah’s
Witnesses,’ the strict moral standards of the Catholic faith in
determining her administrative responsibility in the case at

bar."22 The investigating judge acknowledged that "religious
freedom is a fundamental right which is entitled to the highest
priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270,
EBRALINAG supra, citing Chief Justice Enrique M. Fernando’s
separate opinion in German vs. Barangan, 135 SCRA 514, 530-
531)" and thereby recommended the dismissal of the complaint
against Escritor.23
After considering the Report and Recommendation of Executive
Judge Maceda, the Office of the Court Administrator, through
Deputy Court Administrator (DCA) Lock and with the approval
of Court Administrator Presbitero Velasco, concurred with the
factual findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA Lock stressed
that although Escritor had become capacitated to marry by the
time she joined the judiciary as her husband had died a year
before, "it is due to her relationship with a married man,
voluntarily carried on, that respondent may still be subject to
disciplinary action."24 Considering the ruling of the Court
in Dicdican v. Fernan, et al.25 that "court personnel have been
enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to
preserve the good name and integrity of the court of justice,"
DCA Lock found Escritor’s defense of freedom of religion
unavailing to warrant dismissal of the charge of immorality.
Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six
months and one day without pay with a warning that a repetition
of a similar act will be dealt with more severely in accordance
with the Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the
administrative charge of "gross and immoral conduct." To resolve
this issue, it is necessary to determine the sub-issue of whether or
not respondent’s right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for
which government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral
conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or
employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
x x x           x x x          x x x
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman’s terms,
invokes the religious beliefs and practices and moral standards of
her religion, the Jehovah’s Witnesses, in asserting that her
conjugal arrangement with a man not her legal husband does not
constitute disgraceful and immoral conduct for which she should
be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it
would be well to understand not only its birth in the United States,
but its conception in the Old World. One cannot understand, much
less intelligently criticize the approaches of the courts and the
political branches to religious freedom in the recent past in the
United States without a deep appreciation of the roots of these
controversies in the ancient and medieval world and in the
American experience.27 This fresh look at the religion clauses is
proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious.
Every significant event in the primitive man’s life, from birth to
death, was marked by religious ceremonies. Tribal society
survived because religious sanctions effectively elicited adherence
to social customs. A person who broke a custom violated a taboo
which would then bring upon him "the wrathful vengeance of a
superhuman mysterious power."28 Distinction between the
religious and non-religious would thus have been meaningless to
him. He sought protection from all kinds of evil - whether a wild
beast or tribe enemy and lightning or wind - from the same
person. The head of the clan or the Old Man of the tribe or the
king protected his wards against both human and superhuman
enemies. In time, the king not only interceded for his people with
the divine powers, but he himself was looked upon as a divine
being and his laws as divine decrees.29
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently
differentiated from the responsibility of leading the tribe in war
and policing it in peace as to require the full-time services of a
special priest class. This saw the birth of the social and communal
33
problem of the competing claims of the king and priest.
Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he
also performed priestly functions, he carried out these functions
because he was the head and representative of the community. 30
There being no distinction between the religious and the secular,
the same authority that promulgated laws regulating relations
between man and man promulgated laws concerning man’s
obligations to the supernatural. This authority was the king who
was the head of the state and the source of all law and who only
delegated performance of rituals and sacrifice to the priests. The
Code of Hammurabi, king of Babylonia, imposed penalties for
homicide, larceny, perjury, and other crimes; regulated the fees of
surgeons and the wages of masons and tailors and prescribed rules
for inheritance of property;31 and also catalogued the gods and
assigned them their places in the divine hierarchy so as to put
Hammurabi’s own god to a position of equality with existing
gods.32 In sum, the relationship of religion to the state (king) in
pre-Hebreic times may be characterized as a union of the two
forces, with the state almost universally the dominant partner. 33
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to
God.34 The Mosaic creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state itself. Among the
Hebrews, patriarch, prophet, and priest preceded king and prince.
As man of God, Moses decided when the people should travel and
when to pitch camp, when they should make war and when peace.
Saul and David were made kings by the prophet Samuel, disciple
of Eli the priest. Like the Code of Hammurabi, the Mosaic code
combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary
and all-embracing: sacrifices were made and Israel was prohibited
from exacting usury, mistreating aliens or using false weights, all
because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used
religion as an engine to advance the purposes of the state.
Hammurabi unified Mesopotamia and established Babylon as its
capital by elevating its city-god to a primary position over the
previous reigning gods.35 Moses, on the other hand, capitalized on
the natural yearnings of the Hebrew slaves for freedom and
independence to further God’s purposes. Liberation and Exodus
were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the
temple and the full worship of God.36

Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not
only the future of religion in western civilization, but equally, the
future of the relationship between religion and state in the west.
This fact is acknowledged by many writers, among whom is
Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a
single and universal God that introduced a religious exclusivism
leading to compulsion and persecution in the realm of religion.
Ancient religions were regarded as confined to each separate
people believing in them, and the question of change from one
religious belief to another did not arise. It was not until an
exclusive fellowship, that the questions of proselytism, change of
belief and liberty of religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to
Samuel. In this period, religion was not only superior to the state,
but it was all of the state. The Law of God as transmitted through
Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately,
the master, of religion. Saul and David each received their
kingdom from Samuel the prophet and disciple of Eli the priest,
but soon the king dominated prophet and priest. Saul disobeyed
and even sought to slay Samuel the prophet of God.38 Under
Solomon, the subordination of religion to state became complete;
he used religion as an engine to further the state’s purposes. He
reformed the order of priesthood established by Moses because
the high priest under that order endorsed the claim of his rival to
the throne.39
The subordination of religion to the state was also true in pre-
Christian Rome which engaged in emperor-worship. When
Augustus became head of the Roman state and the priestly
hierarchy, he placed religion at a high esteem as part of a political
plan to establish the real religion of pre-Christian Rome - the
worship of the head of the state. He set his great uncle Julius
Caesar among the gods, and commanded that worship of Divine
Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods,
as other emperors before him.40
The onset of Christianity, however, posed a difficulty to the
emperor as the Christians’ dogmatic exclusiveness prevented
them from paying homage to publicly accepted gods. In the first
two centuries after the death of Jesus, Christians were subjected to
persecution. By the time of the emperor Trajan, Christians were
considered outlaws. Their crime was "hatred of the human race",
placing them in the same category as pirates and brigands and
other "enemies of mankind" who were subject to summary
punishments.41
In 284, Diocletian became emperor and sought to reorganize the
empire and make its administration more efficient. But the
closely-knit hierarchically controlled church presented a serious
problem, being a state within a state over which he had no control.
He had two options: either to force it into submission and break its
power or enter into an alliance with it and procure political control
over it. He opted for force and revived the persecution, destroyed
the churches, confiscated sacred books, imprisoned the clergy and
by torture forced them to sacrifice.42 But his efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two
co-rulers of the empire, in issuing an edict of toleration to
Christians "on condition that nothing is done by them contrary to
discipline."43 A year later, after Galerius died, Constantine and
Licius jointly issued the epochal Edict of Milan (312 or 313), a
document of monumental importance in the history of religious
liberty. It provided "that liberty of worship shall not be
denied to any, but that the mind and will of every individual shall
be free to manage divine affairs according to his own choice."
(emphasis supplied) Thus, all restrictive statutes were abrogated
and it was enacted "that every person who cherishes the desire to
observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance."
Furthermore, it was provided that the "same free and open power
to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every
person may have free opportunity to worship the object of his
choice."(emphasis supplied)44
Before long, not only did Christianity achieve equal status, but
acquired privilege, then prestige, and eventually, exclusive power.
Religion became an engine of state policy as Constantine
considered Christianity a means of unifying his complex empire.
Within seven years after the Edict of Milan, under the emperor’s
command, great Christian edifices were erected, the clergy were
freed from public burdens others had to bear, and private heathen
sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors
called and dismissed church councils, and enforced unity of belief
and practice. Until recently the church had been the victim of
persecution and repression, but this time it welcomed the state’s
persecution and repression of the nonconformist and the orthodox
on the belief that it was better for heretics to be purged of their
error than to die unsaved.
34
Both in theory as in practice, the partnership between church and
state was not easy. It was a constant struggle of one claiming
dominance over the other. In time, however, after the collapse and
disintegration of the Roman Empire, and while monarchical states
were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and
universal power. Not surprisingly, therefore, it claimed not merely
equality but superiority over the secular states. This claim,
symbolized by Pope Leo’s crowning of Charlemagne, became the
church’s accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and
state was now a union of the state in the church. The rulers of the
states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself
crowned his own son as successor to nullify the inference of
supremacy.45 The whole history of medieval Europe was a
struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At
about the second quarter of the 13th century, the Inquisition was
established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope
Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and
resulting in the establishment of Protestant churches. While
Protestants are accustomed to ascribe to the Reformation the rise
of religious liberty and its acceptance as the principle governing
the relations between a democratic state and its citizens, history
shows that it is more accurate to say that the "same causes that
gave rise to the Protestant revolution also resulted in the
widespread acceptance of the principle of religious liberty, and
ultimately of the principle of separation of church and
state."46 Pleas for tolerance and freedom of conscience can without
doubt be found in the writings of leaders of the Reformation. But
just as Protestants living in the countries of papists pleaded for
toleration of religion, so did the papists that lived where
Protestants were dominant.47 Papist and Protestant governments
alike accepted the idea of cooperation between church and state
and regarded as essential to national unity the uniformity of at
least the outward manifestations of religion. 48 Certainly, Luther,
leader of the Reformation, stated that "neither pope, nor bishop,
nor any man whatever has the right of making one syllable
binding on a Christian man, unless it be done with his own
consent."49 But when the tables had turned and he was no longer
the hunted heretic, he likewise stated when he made an alliance
with the secular powers that "(h)eretics are not to be disputed
with, but to be condemned unheard, and whilst they perish by fire,
the faithful ought to pursue the evil to its source, and bathe their
hands in the blood of the Catholic bishops, and of the Pope, who

is a devil in disguise."50 To Luther, unity among the peoples in the
interests of the state was an important consideration. Other
personalities in the Reformation such as Melanchton, Zwingli and
Calvin strongly espoused theocracy or the use of the state as an
engine to further religion. In establishing theocracy in Geneva,
Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by
death, and to eliminate heresy, he cooperated in the Inquisition. 51
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation,
wrote that "(t)he terrible papal edict, the more terrible imperial
edict, the imprisonments, the confiscations, the recantations, the
fagots and burnings, all these things I can see accomplish nothing
except to make the evil more widespread."52 The minority or
dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians
(Unitarians) and the Friends of the Quakers founded by George
Fox in the 17th century, endorsed the supremacy and freedom of
the individual conscience. They regarded religion as outside the
realm of political governments.53 The English Baptists proclaimed
that the "magistrate is not to meddle with religion or matters of
conscience, nor compel men to this or that form of religion." 54
Thus, out of the Reformation, three rationalizations of church-
state relations may be distinguished: the Erastian (after the
German doctor Erastus), the theocratic, and the separatist. The
first assumed state superiority in ecclesiastical affairs and the use
of religion as an engine of state policy as demonstrated by
Luther’s belief that civic cohesion could not exist without
religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy
and the use of state machinery to further religious interests as
promoted by Calvin. The third, which was yet to achieve
ultimate and complete expression in the New World, was
discernibly in its incipient form in the arguments of some
dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation,
Erastianism pervaded all Europe except for Calvin’s theocratic
Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted
by Parliament in 1678, which, to encourage woolen trade,
imposed on all clergymen the duty of seeing to it that no person
was buried in a shroud made of any substance other than
wool.56 Under Elizabeth, supremacy of the crown over the church
was complete: ecclesiastical offices were regulated by her
proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-
nine Articles of the Church of England were adopted and English
Protestantism attained its present doctrinal status. 57 Elizabeth was
to be recognized as "the only Supreme Governor of this realm . . .
as well in all spiritual or ecclesiastical things or causes as
temporal." She and her successors were vested, in their
dominions, with "all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction."58 Later, however, Cromwell
established the constitution in 1647 which granted full liberty to
all Protestant sects, but denied toleration to Catholics. 59 In 1689,
William III issued the Act of Toleration which established a de
facto toleration for all except Catholics. The Catholics achieved
religious liberty in the 19th century when the Roman Catholic
Relief Act of 1829 was adopted. The Jews followed suit in 1858
when they were finally permitted to sit in Parliament. 60
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the
new republic, the theocratic state which had flourished
intermittently in Israel, Judea, the Holy Roman Empire and
Geneva was completely gone. The prevailing church-state
relationship in Europe was Erastianism embodied in the system of
jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist
with freedom in various degrees. No nation had yet adopted as the
basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant
principle that neither might be used as an engine to further the
policies of the other, although the principle was in its seminal
form in the arguments of some dissident minorities and
intellectual leaders of the Renaissance. The religious wars of 16th
and 17th century Europe were a thing of the past by the time
America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers
as expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife,
and persecution generated in large part by established sects
determined to maintain their absolute political and religious
supremacy. With the power of government supporting them, at
various times and places, Catholics had persecuted Protestants,
Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews. In efforts to force
loyalty to whatever religious group happened to be on top and in
league with the government of a particular time and place, men
and women had been fined, cast in jail, cruelly tortured, and
killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views
of ministers of government-established churches, non-attendance
at those churches, expressions of non-belief in their doctrines, and
failure to pay taxes and tithes to support them.61
35
In 1784, James Madison captured in this statement the entire
history of church-state relations in Europe up to the time the
United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of
the secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance
of that role by the vanguards of religion in exchange for the favors
and mundane benefits conferred by ambitious princes and
emperors in exchange for religion’s invaluable service. This was
the context in which the unique experiment of the principle of
religious freedom and separation of church and state saw its birth
in American constitutional democracy and in human history. 63
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the
immigrants brought with them their religious and political ideas
from England and English books and pamphlets largely provided
their cultural fare.64 But although these settlers escaped from
Europe to be freed from bondage of laws which compelled them
to support and attend government favored churches, some of these
settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English
Crown to the individuals and companies designated to make the
laws which would control the destinies of the colonials authorized
them to erect religious establishments, which all, whether
believers or not, were required to support or attend. 65 At one time,
six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high
degree of religious diversity. Still others, which originally
tolerated only a single religion, eventually extended support to
several different faiths.66
This was the state of the American colonies when the unique
American experiment of separation of church and state came
about. The birth of the experiment cannot be attributed to a single
cause or event. Rather, a number of interdependent practical and
ideological factors contributed in bringing it forth. Among these
were the "English Act of Toleration of 1689, the multiplicity of

sects, the lack of church affiliation on the part of most Americans,
the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success
of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European
rationalism and deism."67 Each of these factors shall be briefly
discussed.
First, the practical factors. England’s policy of opening the gates
of the American colonies to different faiths resulted in the
multiplicity of sects in the colonies. With an Erastian justification,
English lords chose to forego protecting what was considered to
be the true and eternal church of a particular time in order to
encourage trade and commerce. The colonies were large financial
investments which would be profitable only if people would settle
there. It would be difficult to engage in trade with persons one
seeks to destroy for religious belief, thus tolerance was a
necessity. This tended to distract the colonies from their
preoccupations over their religion and its exclusiveness,
encouraging them "to think less of the Church and more of the
State and of commerce."68 The diversity brought about by the
colonies’ open gates encouraged religious freedom and non-
establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to
live together. Secondly, because of the daily exposure to different
religions, the passionate conviction in the exclusive rightness of
one’s religion, which impels persecution for the sake of one’s
religion, waned. Finally, because of the great diversity of the
sects, religious uniformity was not possible, and without such
uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically,
there was a scarcity of adherents. Only about four percent of the
entire population of the country had a church affiliation at the
time the republic was founded.70 This might be attributed to the
drifting to the American colonies of the skepticism that
characterized European Enlightenment. 71 Economic considerations
might have also been a factor. The individualism of the American
colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal
non-institutional matter. The prevalence of lack of church
affiliation contributed to religious liberty and disestablishment as
persons who were not connected with any church were not likely
to persecute others for similar independence nor accede to
compulsory taxation to support a church to which they did not
belong.72
However, for those who were affiliated to churches, the colonial
policy regarding their worship generally followed the tenor of the
English Act of Toleration of 1689. In England, this Act conferred
on Protestant dissenters the right to hold public services subject to
registration of their ministers and places of worship. 73 Although
the toleration accorded to Protestant dissenters who qualified
under its terms was only a modest advance in religious freedom, it
nevertheless was of some influence to the American
experiment.74 Even then, for practical considerations, concessions
had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a
unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-
18th century, an evangelical religious revival originating in New
England, caused a break with formal church religion and a
resistance to coercion by established churches. This movement
emphasized an emotional, personal religion that appealed directly
to the individual, putting emphasis on the rights and duties of the
individual conscience and its answerability exclusively to God.
Thus, although they had no quarrel with orthodox Christian
theology as in fact they were fundamentalists, this group became
staunch advocates of separation of church and state. 75
Then there was the Williams-Penn tradition. Roger Williams was
the founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical
considerations but on the concept of mutual independence of
religion and government. In 1663, Rhode Island obtained a charter
from the British crown which declared that settlers have it "much
on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie
in religious concernments."76 In Williams’ pamphlet, The Bloudy
Tenent of Persecution for cause of Conscience, discussed in a
Conference between Truth and Peace,77 he articulated the
philosophical basis for his argument of religious liberty. To him,
religious freedom and separation of church and state did not
constitute two but only one principle. Religious persecution is
wrong because it "confounds the Civil and Religious" and because
"States . . . are proved essentially Civil. The "power of true
discerning the true fear of God" is not one of the powers that the
people have transferred to Civil Authority.78 Williams’ Bloudy
Tenet is considered an epochal milestone in the history of
religious freedom and the separation of church and state. 79
William Penn, proprietor of the land that became Pennsylvania,
was also an ardent advocate of toleration, having been imprisoned
for his religious convictions as a member of the despised Quakers.
He opposed coercion in matters of conscience because
"imposition, restraint and persecution for conscience sake, highly
invade the Divine prerogative." Aside from his idealism,
proprietary interests made toleration in Pennsylvania necessary.
He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent
36
and Britain. At the end of the colonial period, Pennsylvania had
the greatest variety of religious groups. Penn was responsible in
large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a
monumental document in the history of civil liberty which
provided among others, for liberty of conscience.80 The Baptist
followers of Williams and the Quakers who came after Penn
continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of
separation and freedom.81 The Constitutional fathers who
convened in Philadelphia in 1787, and Congress and the states
that adopted the First Amendment in 1791 were very familiar with
and strongly influenced by the successful examples of Rhode
Island and Pennsylvania.82
Undeniably, John Locke and the social contract theory also
contributed to the American experiment. The social contract
theory popularized by Locke was so widely accepted as to be
deemed self-evident truth in America’s Declaration of
Independence. With the doctrine of natural rights and equality set
forth in the Declaration of Independence, there was no room for
religious discrimination. It was difficult to justify inequality in
religious treatment by a new nation that severed its political bonds
with the English crown which violated the self-evident truth that
all men are created equal.83
The social contract theory was applied by many religious groups
in arguing against establishment, putting emphasis on religion as a
natural right that is entirely personal and not within the scope of
the powers of a political body. That Locke and the social contract
theory were influential in the development of religious freedom
and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an
intention in every one the better to preserve himself, his liberty
and property. The power of the society, or Legislature constituted
by them, can never be supposed to extend any further than the
common good, but is obliged to secure every one’s property. To
give laws, to receive obedience, to compel with the sword, belong
to none but the civil magistrate; and on this ground we affirm that
the magistrate’s power extends not to establishing any articles of
faith or forms of worship, by force of laws; for laws are of no
force without penalties. The care of souls cannot belong to the
civil magistrate, because his power consists only in outward force;
but pure and saving religion consists in the inward persuasion of
the mind, without which nothing can be acceptable to
God.84 (emphasis supplied)

The idea that religion was outside the jurisdiction of civil
government was acceptable to both the religionist and rationalist.
To the religionist, God or Christ did not desire that government
have that jurisdiction ("render unto Caesar that which is
Caesar’s"; "my kingdom is not of this world") and to the
rationalist, the power to act in the realm of religion was not one of
the powers conferred on government as part of the social
contract.85
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and post-
revolutionary period were also influenced by European deism and
rationalism,86 in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin,
Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to
the emphasis on secular interests and the relegation of historic
theology to the background.87 For these men of the enlightenment,
religion should be allowed to rise and fall on its own, and the state
must be protected from the clutches of the church whose
entanglements has caused intolerance and corruption as witnessed
throughout history.88 Not only the leaders but also the masses
embraced rationalism at the end of the eighteenth century,
accounting for the popularity of Paine’s Age of Reason. 89
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of
the First Amendment. Virginia was the "first state in the history of
the world to proclaim the decree of absolute divorce between
church and state."90 Many factors contributed to this, among which
were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts,
the established Anglican Church of Virginia found themselves on
the losing side of the Revolution and had alienated many
influential laymen with its identification with the Crown’s
tyranny, and above all, present in Virginia was a group of political
leaders who were devoted to liberty generally, 91 who had accepted
the social contract as self-evident, and who had been greatly
influenced by Deism and Unitarianism. Among these leaders were
Washington, Patrick Henry, George Mason, James Madison and
above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the
adoption of the following provision in the Bill of Rights of the
state’s first constitution:
That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, all men are
equally entitled to the free exercise of religion according to the
dictates of conscience; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each
other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the
end of establishment. Baptists, Presbyterians and Lutherans
flooded the first legislative assembly with petitions for abolition
of establishment. While the majority of the population were
dissenters, a majority of the legislature were churchmen. The
legislature compromised and enacted a bill in 1776 abolishing the
more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It
repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not
only wanted abolition of support for the establishment, they
opposed the compulsory support of their own religion as others.
As members of the established church would not allow that only
they would pay taxes while the rest did not, the legislature enacted
in 1779 a bill making permanent the establishment’s loss of its
exclusive status and its power to tax its members; but those who
voted for it did so in the hope that a general assessment bill would
be passed. Without the latter, the establishment would not survive.
Thus, a bill was introduced in 1779 requiring every person to
enroll his name with the county clerk and indicate which "society
for the purpose of Religious Worship" he wished to support. On
the basis of this list, collections were to be made by the sheriff and
turned over to the clergymen and teachers designated by the
religious congregation. The assessment of any person who failed
to enroll in any society was to be divided proportionately among
the societies.94 The bill evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for
Teachers of the Christian Religion" was introduced requiring all
persons "to pay a moderate tax or contribution annually for the
support of the Christian religion, or of some Christian church,
denomination or communion of Christians, or for some form of
Christian worship."95 This likewise aroused the same opposition to
the 1779 bill. The most telling blow against the 1784 bill was the
monumental "Memorial and Remonstrance against Religious
Assessments" written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785. 96 It stressed
natural rights, the government’s lack of jurisdiction over the
domain of religion, and the social contract as the ideological basis
of separation while also citing practical considerations such as
loss of population through migration. He wrote, viz:
Because we hold it for a ‘fundamental and undeniable truth,’ that
religion, or the duty which we owe to our creator, and the manner
of discharging it, can be directed only by reason and conviction,
37
not by force or violence. The religion, then, of every man, must be
left to the conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate. This right is,
in its nature, an unalienable right. It is unalienable, because the
opinions of men, depending only on the evidence contemplated in
their own minds, cannot follow the dictates of other men; it is
unalienable, also, because what is here a right towards men, is a
duty towards the creator. It is the duty of every man to render the
creator such homage, and such only as he believes to be
acceptable to him; this duty is precedent, both in order of time and
degree of obligation, to the claims of civil society. Before any
man can be considered as a member of civil society, he must be
considered as a subject of the governor of the universe; and if a
member of civil society, who enters into any subordinate
association, must always do it with a reservation of his duty to the
general authority, much more must every man who becomes a
member of any particular civil society do it with the saving his
allegiance to the universal sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in
1785 as indicated by the great number of signatures appended to
the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much
earlier 1779 bill of Jefferson which had not been voted on, the
"Bill for Establishing Religious Freedom", and it was finally
passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by
civil incapacitations, tend not only to beget habits of hypocrisy
and meanness, and are a departure from the plan of the Holy
Author of our religion, who being Lord both of body and mind,
yet chose not to propagate it by coercions on either, as was in his
Almighty power to do; x x x           x x x          x x x
Be it therefore enacted by the General Assembly. That no man
shall be compelled to frequent or support any religious worship,
place or ministry whatsoever, nor shall be enforced, restrained,
molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all
men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise
diminish, enlarge or affect their civil capacities. 98 (emphases
supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular
establishment in Virginia.99 But the passage of this law was
obtained not only because of the influence of the great leaders in

Virginia but also because of substantial popular support coming
mainly from the two great dissenting sects, namely the
Presbyterians and the Baptists. The former were never established
in Virginia and an underprivileged minority of the population.
This made them anxious to pull down the existing state church as
they realized that it was impossible for them to be elevated to that
privileged position. Apart from these expediential considerations,
however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the
language of natural religion.101 Influenced by Roger Williams, the
Baptists, on the other hand, assumed that religion was essentially
a matter of concern of the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation with the social
order.102 To them, the Holy Ghost was sufficient to maintain and
direct the Church without governmental assistance and state-
supported religion was contrary ti the spirit of the Gospel. 103 Thus,
separation was necessary.104 Jefferson’s religious freedom statute
was a milestone in the history of religious freedom. The United
States Supreme Court has not just once acknowledged that the
provisions of the First Amendment of the U.S. Constitution had
the same objectives and intended to afford the same protection
against government interference with religious liberty as the
Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the
Constitution of 1787. This could be deduced from the prohibition
of any religious test for federal office in Article VI of the
Constitution and the assumed lack of power of Congress to act on
any subject not expressly mentioned in the
Constitution.105 However, omission of an express guaranty of
religious freedom and other natural rights nearly prevented the
ratification of the Constitution.106 In the ratifying conventions of
almost every state, some objection was expressed to the absence
of a restriction on the Federal Government as regards legislation
on religion.107 Thus, in 1791, this restriction was made explicit
with the adoption of the religion clauses in the First Amendment
as they are worded to this day, with the first part usually referred
to as the Establishment Clause and the second part, the Free
Exercise Clause, viz:
Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad
disagreement as to what these clauses specifically require, permit
and forbid. No agreement has been reached by those who have
studied the religion clauses as regards its exact meaning and the
paucity of records in Congress renders it difficult to ascertain its
meaning.108 Consequently, the jurisprudence in this area is volatile
and fraught with inconsistencies whether within a Court decision
or across decisions.
One source of difficulty is the difference in the context in which
the First Amendment was adopted and in which it is applied
today. In the 1780s, religion played a primary role in social life -
i.e., family responsibilities, education, health care, poor relief, and
other aspects of social life with significant moral dimension -
while government played a supportive and indirect role by
maintaining conditions in which these activities may be carried
out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the
supportive role.109 Government runs even family planning, sex
education, adoption and foster care programs.110 Stated otherwise
and with some exaggeration, "(w)hereas two centuries ago, in
matters of social life which have a significant moral dimension,
government was the handmaid of religion, today religion, in its
social responsibilities, as contrasted with personal faith and
collective worship, is the handmaid of government."111 With
government regulation of individual conduct having become more
pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely
secular government actions and religion clause values. 112
Parallel to this expansion of government has been the expansion
of religious organizations in population, physical institutions,
types of activities undertaken, and sheer variety of denominations,
sects and cults. Churches run day-care centers, retirement homes,
hospitals, schools at all levels, research centers, settlement houses,
halfway houses for prisoners, sports facilities, theme parks,
publishing houses and mass media programs. In these activities,
religious organizations complement and compete with commercial
enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as
a necessary outgrowth of religious faith as witnessed in pastoral
letters on war and peace, economic justice, and human life, or in
ringing affirmations for racial equality on religious foundations.
Inevitably, these developments have brought about substantial
entanglement of religion and government. Likewise, the growth in
population density, mobility and diversity has significantly
changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no
longer easy for individuals to live solely among their own kind or
to shelter their children from exposure to competing values. The
result is disagreement over what laws should require, permit or
prohibit;113 and agreement that if the rights of believers as well as
38
non-believers are all to be respected and given their just due, a
rigid, wooden interpretation of the religion clauses that is blind to
societal and political realities must be avoided. 114
Religion cases arise from different circumstances. The more
obvious ones arise from a government action which purposely
aids or inhibits religion. These cases are easier to resolve as, in
general, these actions are plainly unconstitutional. Still, this kind
of cases poses difficulty in ascertaining proof of intent to aid or
inhibit religion.115 The more difficult religion clause cases involve
government action with a secular purpose and general
applicability which incidentally or inadvertently aids or burdens
religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with "burdensome
effect" on religious exercise even if the government action is not
religiously motivated.116 Ideally, the legislature would recognize
the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and
burdened turn to the courts for protection.117 Most of these free
exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome"
effect.118
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion
clauses has also been modified to suit current realities. Defining
religion is a difficult task for even theologians, philosophers and
moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and
other legal purposes.119 It was in the 1890 case of Davis v.
Beason120 that the United States Supreme Court first had occasion
to define religion, viz:
The term ‘religion’ has reference to one’s views of his relations to
his Creator, and to the obligations they impose of reverence for
his being and character, and of obedience to his will. It is often
confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the
jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose as
may be approved by his judgment and conscience, and to exhibit
his sentiments in such form of worship as he may think proper,
not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of
worship of any sect.121

The definition was clearly theistic which was reflective of the
popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free
exercise of religion "embraces the right to maintain theories of life
and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths."123 By the 1960s, American
pluralism in religion had flourished to include non-theistic creeds
from Asia such as Buddhism and Taoism.124 In 1961, the Court, in
Torcaso v. Watkins,125 expanded the term "religion" to non-theistic
beliefs such as Buddhism, Taoism, Ethical Culture, and Secular
Humanism. Four years later, the Court faced a definitional
problem in United States v. Seeger126 which involved four men
who claimed "conscientious objector" status in refusing to serve in
the Vietnam War. One of the four, Seeger, was not a member of
any organized religion opposed to war, but when specifically
asked about his belief in a Supreme Being, Seeger stated that "you
could call (it) a belief in a Supreme Being or God. These just do
not happen to be the words that I use." Forest Peter, another one
of the four claimed that after considerable meditation and
reflection "on values derived from the Western religious and
philosophical tradition," he determined that it would be "a
violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state." The
Court avoided a constitutional question by broadly interpreting
not the Free Exercise Clause, but the statutory definition of
religion in the Universal Military Training and Service Act of
1940 which exempt from combat anyone "who, by reason of
religious training and belief, is conscientiously opposed to
participation in war in any form." Speaking for the Court, Justice
Clark ruled, viz:
Congress, in using the expression ‘Supreme Being’ rather than the
designation ‘God,’ was merely clarifying the meaning of religious
tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the
test of belief ‘in relation to a Supreme Being’ is whether a given
belief that is sincere and meaningful occupies a place in the life of
its possessor parallel to the orthodox belief in God. (emphasis
supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and
training.
Federal and state courts have expanded the definition of religion
in Seeger to include even non-theistic beliefs such as Taoism or
Zen Buddhism. It has been proposed that basically, a creed must
meet four criteria to qualify as religion under the First
Amendment. First, there must be belief in God or some parallel
belief that occupies a central place in the believer’s life. Second,
the religion must involve a moral code transcending individual
belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into
the truth or reasonableness of the belief.127 Fourth, there must be
some associational ties,128 although there is also a view that
religious beliefs held by a single person rather than being part of
the teachings of any kind of group or sect are entitled to the
protection of the Free Exercise Clause.129
Defining religion is only the beginning of the difficult task of
deciding religion clause cases. Having hurdled the issue of
definition, the court then has to draw lines to determine what is or
is not permissible under the religion clauses. In this task, the
purpose of the clauses is the yardstick. Their purpose is singular;
they are two sides of the same coin.130 In devoting two clauses to
religion, the Founders were stating not two opposing thoughts that
would cancel each other out, but two complementary thoughts that
apply in different ways in different circumstances. 131 The purpose
of the religion clauses - both in the restriction it imposes on the
power of the government to interfere with the free exercise of
religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and
promotion of religious liberty.132 The end, the goal, and the
rationale of the religion clauses is this liberty. 133 Both clauses were
adopted to prevent government imposition of religious orthodoxy;
the great evil against which they are directed is government-
induced homogeneity.134 The Free Exercise Clause directly
articulates the common objective of the two clauses and the
Establishment Clause specifically addresses a form of interference
with religious liberty with which the Framers were most familiar
and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights
of those who might dissent from whatever religion is
established.136 It has even been suggested that the sense of the First
Amendment is captured if it were to read as "Congress shall make
no law respecting an establishment of religion or otherwise
prohibiting the free exercise thereof" because the fundamental and
single purpose of the two religious clauses is to "avoid any
infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to
protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit
the opportunities for any religious group to capture the state
apparatus to the disadvantage of those of other faiths, or of no
faith at all138 because history has shown that religious fervor
conjoined with state power is likely to tolerate far less religious
disagreement and disobedience from those who hold different
beliefs than an enlightened secular state. 139 In the words of the
U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he
39
structure of our government has, for the preservation of civil
liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty
from the invasion of the civil authority."140
In upholding religious liberty as the end goal in religious clause
cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic
purpose of these provisions, which is to insure that no religion be
sponsored or favored, none commanded and none
inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality
or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains,
the scope of protection of each clause, and the tests used in
religious clause cases. Most of these cases are cited as authorities
in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878
case of Reynolds v. United States.143 This landmark case involved
Reynolds, a Mormon who proved that it was his religious duty to
have several wives and that the failure to practice polygamy by
male members of his religion when circumstances would permit
would be punished with damnation in the life to come. Reynolds’
act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he
was convicted. The Court affirmed Reynolds’ conviction, using
what in jurisprudence would be called the belief-action test which
allows absolute protection to belief but not to action. It cited
Jefferson’s Bill Establishing Religious Freedom which, according
to the Court, declares "the true distinction between what properly
belongs to the Church and what to the State."144 The bill, making a
distinction between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the
field of opinion, and to restrain the profession or propagation of
principles on supposition of their ill tendency, is a dangerous
fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt
acts against peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously
believed it was her duty to burn herself upon the funeral pile of
her dead husband, would it be beyond the power of the civil
government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices to
the contrary because of his religious belief? To permit this would
be to make the professed doctrines of religious belief superior to
the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under
such circumstances.146
The construct was thus simple: the state was absolutely prohibited
by the Free Exercise Clause from regulating individual religious
beliefs, but placed no restriction on the ability of the state to
regulate religiously motivated conduct. It was logical for belief to
be accorded absolute protection because any statute designed to
prohibit a particular religious belief unaccompanied by any
conduct would most certainly be motivated only by the
legislature’s preference of a competing religious belief. Thus, all
cases of regulation of belief would amount to regulation of
religion for religious reasons violative of the Free Exercise
Clause. On the other hand, most state regulations of conduct are
for public welfare purposes and have nothing to do with the
legislature’s religious preferences. Any burden on religion that
results from state regulation of conduct arises only when
particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These
burdens are thus usually inadvertent and did not figure in the
belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not
pose any problem.147 The Free Exercise Clause thus gave no
protection against the proscription of actions even if considered
central to a religion unless the legislature formally outlawed the
belief itself.148
This belief-action distinction was held by the Court for some
years as shown by cases where the Court upheld other laws which
burdened the practice of the Mormon religion by imposing
various penalties on polygamy such as the Davis case and Church
of Latter Day Saints v. United States.149 However, more than a
century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while
the belief-action test has been abandoned, the rulings in the earlier
Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an
absolute prohibition of governmental proscription of beliefs. 150
The Free Exercise Clause accords absolute protection to
individual religious convictions and beliefs151 and proscribes
government from questioning a person’s beliefs or imposing
penalties or disabilities based solely on those beliefs. The Clause
extends protection to both beliefs and unbelief. Thus, in Torcaso
v. Watkins,152 a unanimous Court struck down a state law
requiring as a qualification for public office an oath declaring
belief in the existence of God. The protection also allows courts to
look into the good faith of a person in his belief, but prohibits
inquiry into the truth of a person’s religious beliefs. As held in
United States v. Ballard,153 "(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may
not be put to the proof of their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-
to-door solicitation for any religious or charitable cause without
prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovah’s Witnesses which is
committed to active proselytizing. The Court invalidated the state
statute as the prior approval necessary was held to be a censorship
of religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the
rankest error to his neighbor. To persuade others to his point of
view, the pleader, as we know, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation
have ordained in the light of history, that, in spite of the
probability of excesses and abuses, these liberties are, in the long
40
view, essential to enlightened opinion and right conduct on the
part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the
Reynolds case in that it not only affirmed protection of belief but
also freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute but, in the nature of
things, the second cannot be. Conduct remains subject to
regulation for the protection of society. . . In every case, the power
to regulate must be so exercised as not, in attaining a permissible
end, unduly to infringe the protected freedom. (emphasis
supplied)156
The Court stated, however, that government had the power to
regulate the times, places, and manner of solicitation on the streets
and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,157 ruled that police could not prohibit members of the
Jehovah’s Witnesses from peaceably and orderly proselytizing on
Sundays merely because other citizens complained. In another
case likewise involving the Jehovah’s Witnesses, Niemotko v.
Maryland,158 the Court unanimously held unconstitutional a city
council’s denial of a permit to the Jehovah’s Witnesses to use the
city park for a public meeting. The city council’s refusal was
because of the "unsatisfactory" answers of the Jehovah’s
Witnesses to questions about Catholicism, military service, and
other issues. The denial of the public forum was considered
blatant censorship. While protected, religious speech in the public
forum is still subject to reasonable time, place and manner
regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to
certain areas to maintain the safe and orderly flow of pedestrians
and vehicular traffic as held in the case of Heffron v. International
Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and
the government rationale for regulating the action. 160 The
Mormons’ religious conduct of polygamy is an example of
unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice.
Reynolds was reiterated in the 1890 case of Davis again involving
Mormons, where the Court held, viz: "(c)rime is not the less
odious because sanctioned by what any particular sect may
designate as religion."161

The belief-action test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of religiously dictated
conduct would be upheld no matter how central the conduct was
to the exercise of religion and no matter how insignificant was the
government’s non-religious regulatory interest so long as the
government is proscribing action and not belief. Thus, the Court
abandoned the simplistic belief-action distinction and instead
recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious
exercise for religious reasons which was plainly unconstitutional
and government’s inadvertent interference with religion in
pursuing some secular objective.162 In the 1940 case of Minersville
School District v. Gobitis,163 the Court upheld a local school board
requirement that all public school students participate in a daily
flag salute program, including the Jehovah’s Witnesses who were
forced to salute the American flag in violation of their religious
training, which considered flag salute to be worship of a "graven
image." The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah
Witnesses’ practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity,
which was the "basis of national security." Thus, although the
Court was already aware of the deliberate-inadvertent distinction
in government interference with religion, it continued to hold that
the Free Exercise Clause presented no problem to interference
with religion that was inadvertent no matter how serious the
interference, no matter how trivial the state’s non-religious
objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West
Virginia v. Barnette164 which involved a similar set of facts and
issue. The Court recognized that saluting the flag, in connection
with the pledges, was a form of utterance and the flag salute
program was a compulsion of students to declare a belief. The
Court ruled that "compulsory unification of opinions leads only to
the unanimity of the graveyard" and exempt the students who
were members of the Jehovah’s Witnesses from saluting the flag.
A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said,
"(n)or does the issue as we see it turn on one’s possession of
particular religious views or the sincerity with which they are
held. While religion supplies appellees’ motive for enduring the
discomforts of making the issue in this case, many citizens who
do not share these religious views hold such a compulsory rite to
infringe constitutional liberty of the individual." (emphasis
supplied)165 The Court pronounced, however, that, "freedoms of
speech and of press, of assembly, and of worship . . . are
susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully
protect."166 The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the
common everyday economic and public welfare objectives of the
majority in the legislature. This time, even inadvertent
interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger
sufficing to override religious liberty. But the seeds of this
heightened scrutiny would only grow to a full flower in the
1960s.167
Nearly a century after Reynolds employed the belief-action test,
the Warren Court began the modern free exercise
jurisprudence.168 A two-part balancing test was established in
Braunfeld v. Brown169 where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox
Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a
severe burden on Sabattarian retailers. He noted, however, that
since the burden was the indirect effect of a law with a secular
purpose, it would violate the Free Exercise Clause only if there
were alternative ways of achieving the state’s interest. He
employed a two-part balancing test of validity where the first step
was for plaintiff to show that the regulation placed a real burden
on his religious exercise. Next, the burden would be upheld only
if the state showed that it was pursuing an overriding secular goal
by the means which imposed the least burden on religious
practices.170 The Court found that the state had an overriding
secular interest in setting aside a single day for rest, recreation and
tranquility and there was no alternative means of pursuing this
interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in
the 1963 case of Sherbert v. Verner.171 This test was similar to the
two-part balancing test in Braunfeld,172 but this latter test stressed
that the state interest was not merely any colorable state interest,
but must be paramount and compelling to override the free
exercise claim. In this case, Sherbert, a Seventh Day Adventist,
claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in
the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the decision
of the South Carolina Supreme Court is to withstand appellant’s
41
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant’s religion may
be justified by a ‘compelling state interest in the regulation of a
subject within the State’s constitutional power to regulate. . .’
NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is
basic that it is not sufficient to merely show a rational
relationship of the substantial infringement to the religious
right and a colorable state interest. "(I)n this highly sensitive
constitutional area, ‘[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.’
Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315."174 The Court found that there was no such compelling state
interest to override Sherbert’s religious liberty. It added that even
if the state could show that Sherbert’s exemption would pose
serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to
show that no alternative means of regulations would address
such detrimental effects without infringing religious liberty. The
state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the
denial of Sherbert’s benefits would force her to choose between
receiving benefits and following her religion. This choice placed
"the same kind of burden upon the free exercise of religion as
would a fine imposed against (her) for her Saturday worship."
This germinal case of Sherbert firmly established the exemption
doctrine, 175 viz:
It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some
‘compelling state interest’ intervenes.
Thus, in a short period of twenty-three years from Gobitis to
Sherbert (or even as early as Braunfeld), the Court moved from
the doctrine that inadvertent or incidental interferences with
religion raise no problem under the Free Exercise Clause to the
doctrine that such interferences violate the Free Exercise Clause
in the absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation.
Thus, the problem posed by the belief-action test and
the deliberate-inadvertent distinction was addressed.176

Throughout the 1970s and 1980s under the Warren, and
afterwards, the Burger Court, the rationale in Sherbert continued
to be applied. In Thomas v. Review Board177 and Hobbie v.
Unemployment Appeals Division,178 for example, the Court
reiterated the exemption doctrine and held that in the absence of a
compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged
due to unwillingness to depart from religious practices and beliefs
that conflicted with job requirements. But not every governmental
refusal to allow an exemption from a regulation which burdens a
sincerely held religious belief has been invalidated, even though
strict or heightened scrutiny is applied. In United States v.
Lee,179 for instance, the Court using strict scrutiny and referring to
Thomas, upheld the federal government’s refusal to exempt
Amish employers who requested for exemption from paying
social security taxes on wages on the ground of religious beliefs.
The Court held that "(b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious
belief in conflict with the payment of taxes affords no basis for
resisting the tax."180 It reasoned that unlike in Sherbert, an
exemption would significantly impair government’s achievement
of its objective - "the fiscal vitality of the social security system;"
mandatory participation is indispensable to attain this objective.
The Court noted that if an exemption were made, it would be hard
to justify not allowing a similar exemption from general federal
taxes where the taxpayer argues that his religious beliefs require
him to reduce or eliminate his payments so that he will not
contribute to the government’s war-related activities, for example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to
religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices.
Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor
of the free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin
v. Yoder182 where the Court upheld the religious practice of the
Old Order Amish faith over the state’s compulsory high school
attendance law. The Amish parents in this case did not permit
secular education of their children beyond the eighth grade. Chief
Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest
of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free
exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against
the establishment of any religion. The values underlying these two
provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is
that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that that religiously
grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even when
religiously based, are often subject to regulation by the States in
the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously
grounded conduct must often be subject to the broad police power
of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations
of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in
refusing to send their children to the public high school; in this
context belief and action cannot be neatly confined in logic-tight
compartments. . . 183
The onset of the 1990s, however, saw a major setback in the
protection afforded by the Free Exercise
Clause. In Employment Division, Oregon Department of
Human Resources v. Smith,184 the sharply
divided Rehnquist Court dramatically departed from the
heightened scrutiny and compelling justification approach and
imposed serious limits on the scope of protection of religious
freedom afforded by the First Amendment. In this case, the well-
established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in
conflict with the state’s interest in prohibiting the use of illicit
drugs. Oregon’s controlled substances statute made the possession
of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private
social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic
drug, at a sacramental ceremony practiced by Native Americans
42
for hundreds of years. The social service agency fired Smith and
Black citing their use of peyote as "job-related misconduct". They
applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were
discharged for job-related misconduct. Justice Scalia, writing for
the majority, ruled that "if prohibiting the exercise of religion . . .
is . . . merely the incidental effect of a generally applicable and
otherwise valid law, the First Amendment has not been offended."
In other words, the Free Exercise Clause would be offended only
if a particular religious practice were singled out for proscription.
The majority opinion relied heavily on the Reynolds case and in
effect, equated Oregon’s drug prohibition law with the anti-
polygamy statute in Reynolds. The relevant portion of the
majority opinion held, viz:
We have never invalidated any governmental action on the basis
of the Sherbert test except the denial of unemployment
compensation.
Even if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not
apply it to require exemptions from a generally applicable
criminal law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The government’s ability to
enforce generally applicable prohibitions of socially harmful
conduct, like its ability to carry out other aspects of public policy,
"cannot depend on measuring the effects of a governmental action
on a religious objector’s spiritual development." . . .To make an
individual’s obligation to obey such a law contingent upon the
law’s coincidence with his religious beliefs except where the
State’s interest is "compelling" - permitting him, by virtue of his
beliefs, "to become a law unto himself," . . . - contradicts both
constitutional tradition and common sense.
Justice O’Connor wrote a concurring opinion pointing out that the
majority’s rejection of the compelling governmental interest test
was the most controversial part of the decision. Although she
concurred in the result that the Free Exercise Clause had not been
offended, she sharply criticized the majority opinion as a dramatic
departure "from well-settled First Amendment jurisprudence. . .
and . . . (as) incompatible with our Nation’s fundamental
commitment to religious liberty." This portion of her concurring
opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Court’s decision. Justice
O’Connor asserted that "(t)he compelling state interest test
effectuates the First Amendment’s command that religious liberty
is an independent liberty, that it occupies a preferred position, and

that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling
government interest ‘of the highest order’." Justice Blackmun
registered a separate dissenting opinion, joined by Justices
Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law
concerning the Religion Clauses of our Constitution." He pointed
out that the Native American Church restricted and supervised the
sacramental use of peyote. Thus, the state had no significant
health or safety justification for regulating the sacramental drug
use. He also observed that Oregon had not attempted to prosecute
Smith or Black, or any Native Americans, for that matter, for the
sacramental use of peyote. In conclusion, he said that "Oregon’s
interest in enforcing its drug laws against religious use of peyote
(was) not sufficiently compelling to outweigh respondents’ right
to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in
Smith. The Court’s standard in Smith virtually eliminated the
requirement that the government justify with a compelling state
interest the burdens on religious exercise imposed by laws neutral
toward religion. The Smith doctrine is highly unsatisfactory in
several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First
amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate
regulatory interference with minority religious freedom is the
worst form of this tyranny. But regulatory interference with a
minority religion as a result of ignorance or sensitivity of the
religious and political majority is no less an interference with the
minority’s religious freedom. If the regulation had instead
restricted the majority’s religious practice, the majoritarian
legislative process would in all probability have modified or
rejected the regulation. Thus, the imposition of the political
majority’s non-religious objectives at the expense of the
minority’s religious interests implements the majority’s religious
viewpoint at the expense of the minority’s. Second, government
impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture
where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause
could not afford protection to inadvertent interference, it would be
left almost meaningless. Third, the Reynolds-Gobitis-Smith
doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some
trivial state economic or bureaucratic objective. This is especially
true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact
on religion.186
Thus, the Smith decision has been criticized not only for
increasing the power of the state over religion but as
discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative
clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption
emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial
recourse for exemption.189 Thus, the Smith decision elicited much
negative public reaction especially from the religious community,
and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.190 So much was the uproar that a
majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a person’s
free exercise of religion, even if such burden resulted from a
generally applicable rule, unless the government could
demonstrate a compelling state interest and the rule constituted
the least restrictive means of furthering that interest. 191 RFRA, in
effect, sought to overturn the substance of the Smith ruling and
restore the status quo prior to Smith. Three years after the RFRA
was enacted, however, the Court, dividing 6 to 3, declared the
RFRA unconstitutional in City of Boerne v. Flores.192 The Court
ruled that "RFRA contradicts vital principles necessary to
maintain separation of powers and the federal balance." It
emphasized the primacy of its role as interpreter of the
Constitution and unequivocally rejected, on broad institutional
grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah193 which was ruled consistent with the Smith doctrine.
This case involved animal sacrifice of the Santeria, a blend of
Roman Catholicism and West African religions brought to the
Carribean by East African slaves. An ordinance made it a crime to
"unnecessarily kill, torment, torture, or mutilate an animal in
public or private ritual or ceremony not for the primary purpose of
food consumption." The ordinance came as a response to the local
concern over the sacrificial practices of the Santeria. Justice
Kennedy, writing for the majority, carefully pointed out that the
questioned ordinance was not a generally applicable criminal
prohibition, but instead singled out practitioners of the Santeria in
that it forbade animal slaughter only insofar as it took place within
the context of religious rituals.
It may be seen from the foregoing cases that under the Free
Exercise Clause, religious belief is absolutely protected, religious
speech and proselytizing are highly protected but subject to
restraints applicable to non-religious speech, and unconventional
religious practice receives less protection; nevertheless conduct,
43
even if its violates a law, could be accorded protection as shown
in Wisconsin.194
B. Establishment Clause
The Court’s first encounter with the Establishment Clause was in
the 1947 case of Everson v. Board of Education.195Prior cases had
made passing reference to the Establishment Clause 196 and raised
establishment questions but were decided on other grounds. 197 It
was in the Everson case that the U.S. Supreme Court adopted
Jefferson’s metaphor of "a wall of separation between church and
state" as encapsulating the meaning of the Establishment Clause.
The often and loosely used phrase "separation of church and state"
does not appear in the U.S. Constitution. It became part of U.S.
jurisprudence when the Court in the 1878 case of Reynolds v.
United States198quoted Jefferson’s famous letter of 1802 to the
Danbury Baptist Association in narrating the history of the
religion clauses, viz:
Believing with you that religion is a matter which lies solely
between man and his God; that he owes account to none other for
his faith or his worship; that the legislative powers of the
Government reach actions only, and not opinions, I contemplate
with sovereign reverence that act of the whole American people
which declared that their Legislature should ‘make no law
respecting an establishment of religion or prohibiting the free
exercise thereof,’ thus building a wall of separation between
Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added,
"(c)oming as this does from an acknowledged leader of the
advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment
thus secured."200
The interpretation of the Establishment Clause has in large part
been in cases involving education, notably state aid to private
religious schools and prayer in public schools.201 In Everson v.
Board of Education, for example, the issue was whether a New
Jersey local school board could reimburse parents for expenses
incurred in transporting their children to and from Catholic
schools. The reimbursement was part of a general program under
which all parents of children in public schools and nonprofit
private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black,
writing for a sharply divided Court, justified the reimbursements
on the child benefit theory, i.e., that the school board was merely
furthering the state’s legitimate interest in getting children
"regardless of their religion, safely and expeditiously to and from
accredited schools." The Court, after narrating the history of the

First Amendment in Virginia, interpreted the Establishment
Clause, viz:
The ‘establishment of religion’ clause of the First Amendment
means at least this: Neither a state nor the Federal Government
can set up a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or remain away from church
against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-
attendance. No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever they may
be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly
or secretly participate in the affairs of any religious organizations
or groups and vice versa. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect "a
wall of separation between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and
state. That wall must be kept high and impregnable. We could not
approve the slightest breach. New Jersey has not breached it
here.203
By 1971, the Court integrated the different elements of the
Court’s Establishment Clause jurisprudence that evolved in the
1950s and 1960s and laid down a three-pronged test in Lemon v.
Kurtzman204 in determining the constitutionality of policies
challenged under the Establishment Clause. This case involved a
Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers’ salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island
statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the
following criteria to pass scrutiny under the Establishment Clause.
"First, the statute must have a secular legislative purpose; second,
its primary or principal effect must be one that neither advances
nor inhibits religion (Board of Education v. Allen, 392 US 236,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the
statute must not foster ‘an excessive entanglement with religion.’
(Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701,
90 S Ct 1409 [1970])" (emphasis supplied)205Using this test, the
Court held that the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. "Few
decisions of the modern Supreme Court have been criticized more
intensely than the school prayer decisions of the early 1960s." 206 In
the 1962 case of Engel v. Vitale,207 the Court invalidated a New
York Board of Regents policy that established the voluntary
recitation of a brief generic prayer by children in the public
schools at the start of each school day. The majority opinion
written by Justice Black stated that "in this country it is no part of
the business of government to compose official prayers for any
group of the American people to recite as part of a religious
program carried on by government." In fact, history shows that
this very practice of establishing governmentally composed
prayers for religious services was one of the reasons that caused
many of the early colonists to leave England and seek religious
freedom in America. The Court called to mind that the first and
most immediate purpose of the Establishment Clause rested on the
belief that a union of government and religion tends to destroy
government and to degrade religion. The following year, the
Engel decision was reinforced in Abington School District v.
Schempp208 and Murray v. Curlett209 where the Court struck down
the practice of Bible reading and the recitation of the Lord’s
prayer in the Pennsylvania and Maryland schools. The Court held
that to withstand the strictures of the Establishment Clause, a
statute must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion. It reiterated, viz:
The wholesome ‘neutrality’ of which this Court’s cases speak thus
stems from a recognition of the teachings of history that powerful
sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the
other to the end that official support of the State of Federal
Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a
further reason for neutrality is found in the Free Exercise Clause,
which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to
freely choose his own course with reference thereto, free of any
compulsion from the state.210
The school prayer decisions drew furious reactions. Religious
leaders and conservative members of Congress and resolutions
passed by several state legislatures condemned these
decisions.211 On several occasions, constitutional amendments
have been introduced in Congress to overturn the school prayer
decisions. Still, the Court has maintained its position and has in
fact reinforced it in the 1985 case of Wallace v. Jaffree 212 where
the Court struck down an Alabama law that required public school
students to observe a moment of silence "for the purpose of
meditation or voluntary prayer" at the start of each school day.
Religious instruction in public schools has also pressed the Court
to interpret the Establishment Clause. Optional religious
44
instruction within public school premises and instructional time
were declared offensive of the Establishment Clause in the 1948
case of McCollum v. Board of Education,213 decided just a year
after the seminal Everson case. In this case, interested members of
the Jewish, Roman Catholic and a few Protestant faiths obtained
permission from the Board of Education to offer classes in
religious instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents
signed printed cards requesting that their children be permitted to
attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were
held weekly from thirty to forty minutes during regular class
hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school
authorities but they were subject to the approval and supervision
of the superintendent of schools. Students who did not choose to
take religious instruction were required to leave their classrooms
and go to some other place in the school building for their secular
studies while those who were released from their secular study for
religious instruction were required to attend the religious classes.
The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school
authorities and the religious council in promoting religious
education amounted to a prohibited use of tax-established and tax-
supported public school system to aid religious groups spread
their faith. The Court rejected the claim that the Establishment
Clause only prohibited government preference of one religion
over another and not an impartial governmental assistance of all
religions. In Zorach v. Clauson,214 however, the Court upheld
released time programs allowing students in public schools to
leave campus upon parental permission to attend religious
services while other students attended study hall. Justice Douglas,
the writer of the opinion, stressed that "(t)he First Amendment
does not require that in every and all respects there shall be a
separation of Church and State." The Court distinguished Zorach
from McCollum, viz:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the
religious needs of the people. We cannot read into the Bill of
Rights such a philosophy of hostility to religion.215
In the area of government displays or affirmations of belief, the
Court has given leeway to religious beliefs and practices which
have acquired a secular meaning and have become deeply
entrenched in history. For instance, in McGowan v.
Maryland,216 the Court upheld laws that prohibited certain

businesses from operating on Sunday despite the obvious religious
underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this
day of rest happened to be the day of worship for most Christians,
the Court held, viz:
It is common knowledge that the first day of the week has come to
have special significance as a rest day in this country. People of
all religions and people with no religion regard Sunday as a time
for family activity, for visiting friends and relatives, for later
sleeping, for passive and active entertainments, for dining out, and
the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to
invalidate Nebraska’s policy of beginning legislative sessions
with prayers offered by a Protestant chaplain retained at the
taxpayers’ expense. The majority opinion did not rely on the
Lemon test and instead drew heavily from history and the need for
accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than
200 years, there can be no doubt that the practice of opening
legislative sessions with prayer has become the fabric of our
society. To invoke Divine guidance on a public body entrusted
with making the laws is not, in these circumstances, an
"establishment" of religion or a step toward establishment; it is
simply a tolerable acknowledgement of beliefs widely held among
the people of this country. As Justice Douglas observed, "(w)e are
a religious people whose institutions presuppose a Supreme
Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis
supplied)
Some view the Marsh ruling as a mere aberration as the Court
would "inevitably be embarrassed if it were to attempt to strike
down a practice that occurs in nearly every legislature in the
United States, including the U.S. Congress."220 That Marsh was
not an aberration is suggested by subsequent cases. In the 1984
case of Lynch v. Donnelly,221 the Court upheld a city-sponsored
nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on
history and the fact that the creche had become a "neutral
harbinger of the holiday season" for many, rather than a symbol of
Christianity.
The Establishment Clause has also been interpreted in the area of
tax exemption. By tradition, church and charitable institutions
have been exempt from local property taxes and their income
exempt from federal and state income taxes. In the 1970 case of
Walz v. Tax Commission,222 the New York City Tax
Commission’s grant of property tax exemptions to churches as
allowed by state law was challenged by Walz on the theory that
this required him to subsidize those churches indirectly. The Court
upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or
even churches as such; rather, it has granted exemptions to all
houses of religious worship within a broad class of property
owned by non-profit, quasi-public corporations . . . The State has
an affirmative policy that considers these groups as beneficial and
stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest. 223
The Court added that the exemption was not establishing religion
but "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions"224 and preventing
excessive entanglement between state and religion. At the same
time, the Court acknowledged the long-standing practice of
religious tax exemption and the Court’s traditional deference to
legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our
national life, beginning with pre-Revolutionary colonial times,
than for the government to exercise . . . this kind of benevolent
neutrality toward churches and religious exercise generally so
long as none was favored over others and none suffered
interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many
landmark decisions in the religious clauses area, are but a small
fraction of the hundreds of religion clauses cases that the U.S.
Supreme Court has passed upon. Court rulings contrary to or
making nuances of the above cases may be cited. Professor
McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a
Presbyterian minister to lead the legislature in daily prayers
(Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the
schools for children to pray if they want to (Wallace v. Jaffree,
472 US 38, 56 [1985]). It is unconstitutional for a state to require
employers to accommodate their employees’ work schedules to
their sabbath observances (Estate of Thornton v. Caldor, Inc., 472
US 703, 709-10 [1985]) but constitutionally mandatory for a state
to require employers to pay workers compensation when the
resulting inconsistency between work and sabbath leads to
discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-
affiliated organizations to teach adolescents about proper sexual
behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not
45
to teach them science or history (Lemon v. Kurtzman, 403 US
602, 618-619 [1971]). It is constitutional for the government to
provide religious school pupils with books (Board of Education v.
Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v.
Walter, 433 US 229, 249-51 [1977]); with bus rides to religious
schools (Everson v. Board of Education, 330 US 1, 17 [1947]),
but not from school to a museum on a field trip (Wolman v.
Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-
mandated standardized tests (Committee for Pub. Educ. and
Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not
to pay for safety-related maintenance (Committee for Pub. Educ
v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the
U.S. religion clause jurisprudence nor to extract the prevailing
case law regarding particular religious beliefs or conduct colliding
with particular government regulations. Rather, the cases
discussed above suffice to show that, as legal scholars observe,
this area of jurisprudence has demonstrated two main standards
used by the Court in deciding religion clause cases: separation (in
the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in
terms of sheer volume, appears to lie with the separationists, strict
or tame.227 But the accommodationists have also attracted a
number of influential scholars and jurists.228 The two standards
producing two streams of jurisprudence branch out respectively
from the history of the First Amendment in England and the
American colonies and climaxing in Virginia as narrated in this
opinion and officially acknowledged by the Court in Everson, and
from American societal life which reveres religion and practices
age-old religious traditions. Stated otherwise, separation - strict or
tame - protects the principle of church-state separation with a rigid
reading of the principle while benevolent neutrality protects
religious realities, tradition and established practice with a flexible
reading of the principle.229 The latter also appeals to history in
support of its position, viz:
The opposing school of thought argues that the First Congress
intended to allow government support of religion, at least as long
as that support did not discriminate in favor of one particular
religion. . . the Supreme Court has overlooked many important
pieces of history. Madison, for example, was on the congressional
committee that appointed a chaplain, he declared several national
days of prayer and fasting during his presidency, and he
sponsored Jefferson’s bill for punishing Sabbath breakers;
moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent
book, ‘there is no support in the Congressional records that either
the First Congress, which framed the First Amendment, or its
principal author and sponsor, James Madison, intended that

Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public
documents goes the other way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of
benevolent neutrality that gives room for accommodation, less
than twenty-four hours after Congress adopted the First
Amendment’s prohibition on laws respecting an establishment of
religion, Congress decided to express its thanks to God Almighty
for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer. Only two members of Congress
opposed the resolution, one on the ground that the move was a
"mimicking of European customs, where they made a mere
mockery of thanksgivings", the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion
was passed without further recorded discussion.231 Thus,
accommodationists also go back to the framers to ascertain the
meaning of the First Amendment, but prefer to focus on acts
rather than words. Contrary to the claim of separationists that
rationalism pervaded America in the late 19th century and that
America was less specifically Christian during those years than at
any other time before or since,232 accommodationaists claim that
American citizens at the time of the Constitution’s origins were a
remarkably religious people in particularly Christian terms. 233
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the
"wall of separation." The strict separtionist view holds that
Jefferson meant the "wall of separation" to protect the state from
the church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and
anticlericalism of that philosophic bent.234 He has often been
regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection
with divine law, and instead adhering to a secular belief in a
universal harmony.235 Thus, according to this Jeffersonian view,
the Establishment Clause being meant to protect the state from the
church, the state’s hostility towards religion allows no interaction
between the two.236 In fact, when Jefferson became President, he
refused to proclaim fast or thanksgiving days on the ground that
these are religious exercises and the Constitution prohibited the
government from intermeddling with religion.237 This approach
erects an absolute barrier to formal interdependence of religion
and state. Religious institutions could not receive aid, whether
direct or indirect, from the state. Nor could the state adjust its
secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics
would eliminate the formal influence of religious institutions and
provide for a free choice among political views thus a strict "wall
of separation" is necessary.239 Strict separation faces difficulties,
however, as it is deeply embedded in history and contemporary
practice that enormous amounts of aid, both direct and indirect,
flow to religion from government in return for huge amounts of
mostly indirect aid from religion. Thus, strict separationists are
caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to. 240
A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court,
showing the Court’s tendency to press relentlessly towards a more
secular society.241 It finds basis in the Everson case where the
Court declared that Jefferson’s "wall of separation" encapsulated
the meaning of the First Amendment but at the same time held
that the First Amendment "requires the state to be neutral in its
relations with groups of religious believers and non-believers; it
does not require the state to be their adversary. State power is no
more to be used so as to handicap religions than it is to favor
them." (emphasis supplied)242 While the strict neutrality approach
is not hostile to religion, it is strict in holding that religion may not
be used as a basis for classification for purposes of governmental
action, whether the action confers rights or privileges or imposes
duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require,
accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation
clauses should be read as a single precept that government cannot
utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer
a benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means
government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit
government from acting except for secular purposes and in ways
that have primarily secular effects.245
Prayer in public schools is an area where the Court has applied
strict neutrality and refused to allow any form of prayer, spoken or
silent, in the public schools as in Engel and Schempp. 246 The
McCollum case prohibiting optional religious instruction within
public school premises during regular class hours also
demonstrates strict neutrality. In these education cases, the Court
refused to uphold the government action as they were based not
on a secular but on a religious purpose. Strict neutrality was also
used in Reynolds and Smith which both held that if government
acts in pursuit of a generally applicable law with a secular purpose
46
that merely incidentally burdens religious exercise, the First
Amendment has not been offended. However, if the strict
neutrality standard is applied in interpreting the Establishment
Clause, it could de facto void religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his
concurring opinion in Schempp, strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or
even active, hostility to the religious" which is prohibited by the
Constitution.247 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible
with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say,
of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme
Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.248
The separationist approach, whether strict or tame, is caught in a
dilemma because while the Jeffersonian wall of separation
"captures the spirit of the American ideal of church-state
separation", in real life church and state are not and cannot be
totally separate.249 This is all the more true in contemporary times
when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in
the intersection of government and religion at many points. 250
Consequently, the Court has also decided cases employing
benevolent neutrality. Benevolent neutrality which gives room for
accommodation is buttressed by a different view of the "wall of
separation" associated with Williams, founder of the Rhode Island
colony. In Mark DeWolfe Howe’s classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall
of separation in mind, it was unlike the Jeffersonian wall that is
meant to protect the state from the church; instead, the wall is
meant to protect the church from the state, 251 i.e., the "garden" of
the church must be walled in for its own protection from the
"wilderness" of the world252 with its potential for corrupting those
values so necessary to religious commitment.253 Howe called this
the "theological" or "evangelical" rationale for church-state
separation while the wall espoused by "enlightened" statesmen
such as Jefferson and Madison, was a "political" rationale seeking
to protect politics from intrusions by the church.254 But it has been
asserted that this contrast between the Williams and Jeffersonian
positions is more accurately described as a difference in kinds or
styles of religious thinking, not as a conflict between "religious"
and "secular (political)"; the religious style was biblical and
evangelical in character while the secular style was grounded in

natural religion, more generic and philosophical in its religious
orientation.255
The Williams wall is, however, breached for the church is in the
state and so the remaining purpose of the wall is to safeguard
religious liberty. Williams’ view would therefore allow for
interaction between church and state, but is strict with regard to
state action which would threaten the integrity of religious
commitment.256 His conception of separation is not total such that
it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality. 257 This "theological"
view of separation is found in Williams’ writings, viz:
. . . when they have opened a gap in the hedge or wall of
separation between the garden of the church and the wilderness of
the world, God hath ever broke down the wall itself, removed the
candlestick, and made his garden a wilderness, as this day. And
that therefore if He will eer please to restore His garden and
paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .258
Chief Justice Burger spoke of benevolent
neutrality in Walz, viz:
The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate
either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive
of a benevolent neutrality which will permit religious exercise to
exist without sponsorship and without interference.259 (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation, 260 viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there
shall be no concert or union or dependency one or the other. That
is the common sense of the matter. Otherwise, the state and
religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths- these and all other references to the
Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: ‘God save the United States
and this Honorable Court. x x x           x x x          x x x
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one
chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its
weight against efforts to widen their effective scope of religious
influence.261 (emphases supplied)
Benevolent neutrality is congruent with the sociological
proposition that religion serves a function essential to the survival
of society itself, thus there is no human society without one or
more ways of performing the essential function of religion.
Although for some individuals there may be no felt need for
religion and thus it is optional or even dispensable, for society it is
not, which is why there is no human society without one or more
ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground
religion(s) and surrogate religion(s) in their ideology. 262 As one
sociologist wrote:
It is widely held by students of society that there are certain
functional prerequisites without which society would not continue
to exist. At first glance, this seems to be obvious - scarcely more
than to say that an automobile could not exist, as a going system,
without a carburetor. . . Most writers list religion among the
functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no
known human society without something which modern social
scientists would classify as a religion…Religion is as much a
human universal as language."264
Benevolent neutrality thus recognizes that religion plays an
important role in the public life of the United States as shown by
many traditional government practices which, to strict neutrality,
pose Establishment Clause questions. Among these are the
inscription of "In God We Trust" on American currency, the
recognition of America as "one nation under God" in the official
pledge of allegiance to the flag, the Supreme Court’s time-
honored practice of opening oral argument with the invocation
"God save the United States and this honorable Court," and the
practice of Congress and every state legislature of paying a
chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.265 These practices clearly show the
47
preference for one theological viewpoint -the existence of and
potential for intervention by a god - over the contrary theological
viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms
of poor relief, in the treatment of alcoholism and drug addiction,
in foreign aid and other government activities with strong moral
dimension.266 The persistence of these de facto establishments are
in large part explained by the fact that throughout history, the
evangelical theory of separation, i.e., Williams’ wall, has
demanded respect for these de facto establishments. 267 But the
separationists have a different explanation. To characterize these
as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting
and concurring opinions explain some of these practices as "‘de
minimis’ instances of government endorsement or as historic
governmental practices that have largely lost their religious
significance or at least have proven not to lead the government
into further involvement with religion.268
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate
the exercise of, a person’s or institution’s religion. As Justice
Brennan explained, the "government [may] take religion into
account…to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary
religious exercise may flourish."269 (emphasis supplied)
Accommodation is forbearance and not alliance. it does not reflect
agreement with the minority, but respect for the conflict between
the temporal and spiritual authority in which the minority finds
itself.270
Accommodation is distinguished from strict neutrality in that the
latter holds that government should base public policy solely on
secular considerations, without regard to the religious
consequences of its actions. The debate between accommodation
and strict neutrality is at base a question of means: "Is the freedom
of religion best achieved when the government is conscious of the
effects of its action on the various religious practices of its people,
and seeks to minimize interferences with those practices? Or is it
best advanced through a policy of ‘religious blindness’ - keeping
government aloof from religious practices and issues?" An
accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with

religious freedom. On the other hand, the strict neutrality adherent
believes that it is good public policy, and also constitutionally
required, for the government to avoid religion-specific policy
even at the cost of inhibiting religious exercise. 271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality
position. First, the accommodationist interpretation is most
consistent with the language of the First Amendment. The religion
clauses contain two parallel provisions, both specifically directed
at "religion." The government may not "establish" religion and
neither may government "prohibit" it. Taken together, the religion
clauses can be read most plausibly as warding off two equal and
opposite threats to religious freedom - government action that
promotes the (political) majority’s favored brand of religion and
government action that impedes religious practices not favored by
the majority. The substantive end in view is the preservation of
the autonomy of religious life and not just the formal process
value of ensuring that government does not act on the basis of
religious bias. On the other hand, strict neutrality interprets the
religion clauses as allowing government to do whatever it desires
to or for religion, as long as it does the same to or for comparable
secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from
taking part in communion. Paradoxically, this view would make
the religion clauses violate the religion clauses, so to speak, since
the religion clauses single out religion by name for special
protection. Second, the accommodationist position best achieves
the purposes of the First Amendment. The principle underlying
the First Amendment is that freedom to carry out one’s duties to a
Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Although inalienable, it is necessarily limited
by the rights of others, including the public right of peace and
good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment
of the purpose of the First Amendment requires more than the
"religion blindness" of strict neutrality. With the pervasiveness of
government regulation, conflicts with religious practices become
frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the
government must make special provisions to preserve a degree of
independence for religious entities for them to carry out their
religious missions according to their religious beliefs. Otherwise,
religion will become just like other secular entities subject to
pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to
protect adherents of minority religions from the inevitable effects
of majoritarianism, which include ignorance and indifference and
overt hostility to the minority. In a democratic republic, laws are
inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this
effect is unavoidable as a practical matter because some laws are
so necessary to the common good that exceptions are intolerable.
But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or
incomparable that only indifference or hostility could explain a
refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make
such exemptions when the need is brought to their attention, but
this may not always be the case when the religious practice is
either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that
allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations
extends this treatment to religious faiths that are less able to
protect themselves in the political arena. Fourth, the
accommodationist position is practical as it is a commonsensical
way to deal with the various needs and beliefs of different faiths
in a pluralistic nation. Without accommodation, many otherwise
beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors
conflicting with celebration of communion, regulations requiring
hard hats in construction areas can effectively exclude Amish and
Sikhs from the workplace, or employment anti-discrimination
laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at
little cost to public policy. Without exemptions, legislature would
be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption
seems manifestly more reasonable than either of the alternative:
no exemption or no law.272
Benevolent neutrality gives room for different kinds of
accommodation: those which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those which are
discretionary or legislative, i.e., and those not required by the Free
Exercise Clause but nonetheless permitted by the Establishment
Clause.273 Some Justices of the Supreme Court have also used the
term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the
community such as display of a religious symbol on public
property or the delivery of a prayer at public ceremonial
events.274 Stated otherwise, using benevolent neutrality as a
standard could result to three situations of accommodation: those
where accommodation is required, those where it is permissible,
and those where it is prohibited. In the first situation,
accommodation is required to preserve free exercise protections
48
and not unconstitutionally infringe on religious liberty or create
penalties for religious freedom. Contrary to the Smith declaration
that free exercise exemptions are "intentional government
advancement", these exemptions merely relieve the prohibition on
the free exercise thus allowing the burdened religious adherent to
be left alone. The state must create exceptions to laws of general
applicability when these laws threaten religious convictions or
practices in the absence of a compelling state interest. 275 By
allowing such exemptions, the Free Exercise Clause does not give
believers the right or privilege to choose for themselves to
override socially-prescribed decision; it allows them to obey
spiritual rather than temporal authority276 for those who seriously
invoke the Free Exercise Clause claim to be fulfilling a solemn
duty. Religious freedom is a matter less of rights than duties; more
precisely, it is a matter of rights derived from duties. To deny a
person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course,
those denied will usually not find the reason for the denial
compelling. "Because they may turn out to be right about the duty
in question, and because, even if they are wrong, religion bears
witness to that which transcends the political order, such denials
should be rare and painfully reluctant."277
The Yoder case is an example where the Court held that the state
must accommodate the religious beliefs of the Amish who
objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held
that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert. 278 In these
cases of "burdensome effect", the modern approach of the Court
has been to apply strict scrutiny, i.e., to declare the burden as
permissible, the Court requires the state to demonstrate that the
regulation which burdens the religious exercise pursues a
particularly important or compelling government goal through the
least restrictive means. If the state’s objective could be served as
well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, such an
exemption must be given.279This approach of the Court on
"burdensome effect" was only applied since the 1960s. Prior to
this time, the Court took the separationist view that as long as the
state was acting in pursuit of non-religious ends and regulating
conduct rather than pure religious beliefs, the Free Exercise
Clause did not pose a hindrance such as in Reynolds. 280 In the
second situation where accommodation is permissible, the state
may, but is not required to, accommodate religious interests. The
Walz case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church
properties, but did not rule that the state was required to provide
tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise

Clause."281 The Court held that New York could have an interest in
encouraging religious values and avoiding threats to those values
through the burden of property taxes. Other examples are the
Zorach case allowing released time in public schools and Marsh
allowing payment of legislative chaplains from public funds.
Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the
Free Exercise Clause does not mean that all claims for free
exercise exemptions are valid.282 An example where
accommodation was prohibited is McCollum where the Court
ruled against optional religious instruction in the public school
premises.283 In effect, the last situation would arrive at a strict
neutrality conclusion.
In the first situation where accommodation is required, the
approach follows this basic framework:
If the plaintiff can show that a law or government practice inhibits
the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to
the accomplishment of some important (or ‘compelling’) secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant’s beliefs
must be ‘sincere’, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the
claimant’s religious denomination. ‘Only beliefs rooted in religion
are protected by the Free Exercise Clause’; secular beliefs,
however sincere and conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-
step balancing process" supra when the second and third steps are
combined) as in Sherbert is followed in weighing the state’s
interest and religious freedom when these collide. Three questions
are answered in this process. First, "(h)as the statute or
government action created a burden on the free exercise of
religion?" The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief because the
Free Exercise Clause prohibits inquiring about its truth as held in
Ballard and Cantwell. The sincerity of the claimant’s belief is
ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. As evidence of sincerity, the U.S. Supreme
Court has considered historical evidence as in Wisconsin where
the Amish people had held a long-standing objection to enrolling
their children in ninth and tenth grades in public high schools. In
another case, Dobkin v. District of Columbia,285 the Court denied
the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he
regularly conducted business on Saturday. Although it is true that
the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all
claims by not allowing accommodation as a rule. There might be
injury to the particular claimant or to his religious community, but
for the most part, the injustice is done only in the particular
case.286 Aside from the sincerity, the court may look into the
centrality of those beliefs, assessing them not on an objective
basis but in terms of the opinion and belief of the person seeking
exemption. In Wisconsin, for example, the Court noted that the
Amish people’s convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly,
in Sherbert, the Court concluded that the prohibition against
Saturday work was a "cardinal principle."287 Professor Lupu puts
to task the person claiming exemption, viz:
On the claimant’s side, the meaning and significance of the
relevant religious practice must be demonstrated. Religious
command should outweigh custom, individual conscience should
count for more than personal convenience, and theological
principle should be of greater significance than institutional ease.
Sincerity matters, (footnote omitted) and longevity of practice -
both by the individual and within the individual’s religious
tradition - reinforces sincerity. Most importantly, the law of free
exercise must be inclusive and expansive, recognizing non-
Christian religions - eastern, Western, aboriginal and otherwise -
as constitutionally equal to their Christian counterparts, and
accepting of the intensity and scope of fundamentalist creed. 288
Second, the court asks: "(i)s there a sufficiently compelling state
interest to justify this infringement of religious liberty?" In this
step, the government has to establish that its purposes are
legitimate for the state and that they are compelling. Government
must do more than assert the objectives at risk if exemption is
given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. 289 The
person claiming religious freedom, on the other hand, will
endeavor to show that the interest is not legitimate or that the
purpose, although legitimate, is not compelling compared to
infringement of religious liberty. This step involves balancing,
i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of
facts. The greater the state’s interests, the more central the
religious belief would have to be to overcome it. In assessing the
state interest, the court will have to determine the importance of
the secular interest and the extent to which that interest will be
impaired by an exemption for the religious practice. Should the
court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its
regulation by granting the exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free
49
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?"291 The analysis requires the state to
show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on
religious liberties. In Cantwell, for example, the Court invalidated
the license requirement for the door-to-door solicitation as it was a
forbidden burden on religious liberty, noting that less drastic
means of insuring peace and tranquility existed. As a whole, in
carrying out the compelling state interest test, the Court should
give careful attention to context, both religious and regulatory, to
achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases,
the competing values of secular government and religious
freedom create tensions that make constitutional law on the
subject of religious liberty unsettled, mirroring the evolving views
of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of
Catholicism covered the archipelago. There was a union of church
and state and Catholicism was the state religion under the Spanish
Constitution of 1876. Civil authorities exercised religious
functions and the friars exercised civil powers.294 Catholics alone
enjoyed the right of engaging in public ceremonies of
worship.295 Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established
church in our country under the Spanish rule. Catholicism was in
fact protected by the Spanish Penal Code of 1884 which was in
effect in the Philippines. Some of the offenses in chapter six of the
Penal Code entitled "Crimes against Religion and Worship"
referred to crimes against the state religion. 296The 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
50
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.
Ruiz310 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
Education313 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 Society ruled was
violative of religious freedom. Rather, the registration fee was
merely an administrative fee to defray part of the cost of
registration which was a central feature of the VAT system. Citing
Jimmy Swaggart Ministries v. Board of Equalization, 318 the Court
also declared prefatorily that "the Free Exercise of Religion
Clause does not prohibit imposing a generally applicable sales and
use tax on the sale of religious materials by a religious
organization." In the Court’s resolution of the motion for
reconsideration of the Tolentino decision, the Court noted that the
burden on religious freedom caused by the tax was just similar to
any other economic imposition that might make the right to
disseminate religious doctrines costly.
51
Two years after American Bible Society came the 1959 case of
Gerona v. Secretary of Education,319 this time involving conduct
expressive of religious belief colliding with a rule prescribed in
accordance with law. In this case, petitioners were members of the
Jehovah’s Witnesses. They challenged a Department Order issued
by the Secretary of Education implementing Republic Act No.
1265 which prescribed compulsory flag ceremonies in all public
schools. In violation of the Order, petitioner’s children refused to
salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that
their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to
their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield
to the latter. The Government steps in and either restrains said
exercise or even prosecutes the one exercising it. (emphasis
supplied)320
The Court then proceeded to determine if the acts involved
constituted a religious ceremony in conflict with the beliefs of the
petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or
sect; otherwise, there would be confusion and misunderstanding
for there might be as many interpretations and meaning to be
given to a certain ritual or ceremony as there are religious groups
or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such
ritual or ceremony.321
It was held that the flag was not an image, the flag salute was not
a religious ceremony, and there was nothing objectionable about
the singing of the national anthem as it speaks only of love of
country, patriotism, liberty and the glory of suffering and dying
for it. The Court upheld the questioned Order and the expulsion of
petitioner’s children, stressing that:
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of
love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in
which they are mutually and vitally interested, for to them, they
mean national existence and survival as a nation or national
extinction.322

In support of its ruling, the Court cited Justice Frankfurter’s
dissent in the Barnette case, viz:
The constitutional protection of religious freedom x x x gave
religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to
law because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution
does not and cannot mean exemption from or non-compliance
with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona
are: (1) it is incumbent upon the Court to determine whether a
certain ritual is religious or not; (2) religious freedom will not be
upheld if it clashes with the established institutions of society and
with the law such that when a law of general applicability (in this
case the Department Order) incidentally burdens the exercise of
one’s religion, one’s right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was
reiterated in Balbuna, et al. v. Secretary of Education, et al. 325
Fifteen years after Gerona came the 1974 case of Victoriano v.
Elizalde Rope Workers Union.326 In this unanimously decided en
banc case, Victoriano was a member of the Iglesia ni Cristo which
prohibits the affiliation of its members with any labor
organization. He worked in the Elizalde Rope Factory, Inc. and
was a member of the Elizalde Rope Workers Union which had
with the company a closed shop provision pursuant to Republic
Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from
the union after Republic Act No. 3350 took effect. The union
notified the company of Victoriano’s resignation, which in turn
notified Victoriano that unless he could make a satisfactory
arrangement with the union, the company would be constrained to
dismiss him from the service. Victoriano sought to enjoin the
company and the union from dismissing him. The court having
granted the injunction, the union came to this Court on questions
of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for
granting an exemption offensive of the Establishment Clause.
With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental
personal right and liberty (Schneider v. Irgington, 308 U.S. 147,
161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position
in the hierarchy of values. Contractual rights, therefore, must yield
to freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary. 327 (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing
the constitutional provision on establishment and free exercise of
religion, declared, viz:
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any
sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise
of one’s chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the
common good. (footnote omitted). Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)
But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the
state’s secular goals, the statute is valid despite its indirect burden
on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366
U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not
precluded from pursuing valid objectives secular in character even
if the incidental result would be favorable to a religion or sect." It
also cited Board of Education v. Allen,330 which held that in order
to withstand the strictures of constitutional prohibition, a statute
must have a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. Using these criteria in
upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular
purpose of advancing the constitutional right to the free exercise
of religion, by averting that certain persons be refused work, or be
dismissed from work, or be dispossessed of their right to work and
of being impeded to pursue a modest means of livelihood, by
reason of union security agreements. . . . The primary effects of
the exemption from closed shop agreements in favor of members
of religious sects that prohibit their members from affiliating with
52
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.,335and Gonzales, et al. v. Central Azucarera de Tarlac
Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for "an end to
violence" when they were barred by the police. Invoking their
constitutional freedom of religious worship and locomotion, they
came to the Court on a petition for mandamus to allow them to
enter and pray inside the St. Jude Chapel. The Court was divided
on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that
they were using their religious liberty to express their opposition
to the government. Citing Cantwell, the Court distinguished
between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom
to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the
manner by which they had attempted to translate the same to
action. This curtailment is in accord with the pronouncement of
this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel. If the exercise of
said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way
to the latter. The government steps in and either restrains said
exercise or even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners
was "necessary to maintain the smooth functioning of the
executive branch of the government, which petitioners’ mass
action would certainly disrupt"338 and denied the petition. Thus,
without considering the tests mentioned in Victoriano, German
went back to the Gerona rule that religious freedom will not be
upheld if it clashes with the established institutions of society and
the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious
freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as
set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125
SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one’s religion is guaranteed in
Section 8 of our Bill of Rights. (footnote omitted) Freedom of
worship, alongside with freedom of expression and speech and
peaceable assembly "along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary - even more so than
on the other departments - rests the grave and delicate
responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitously termed by
Justice Holmes ‘as the sovereign prerogative of judgment.’
Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do
precedence and primacy.’ (J.B.L. Reyes, 125 SCRA at pp. 569-
570)
2. In the free exercise of such preferred rights, there is to be no
prior restraint although there may be subsequent punishment of
any illegal acts committed during the exercise of such basic rights.
The sole justification for a prior restraint or limitation on the
exercise of these basic rights is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
53
other legitimate public interest, that the State has a right (and
duty) to prevent (Idem, at pp. 560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of
Justice Teehankee’s dissent was taken involved the rights to free
speech and assembly, and not the exercise of religious freedom.
At issue in that case was a permit sought by retired Justice J.B.L.
Reyes, on behalf of the Anti-Bases Coalition, from the City of
Manila to hold a peaceful march and rally from the Luneta to the
gates of the U.S. Embassy. Nevertheless Bagatsing was used by
Justice Teehankee in his dissent which had overtones of petitioner
German and his companions’ right to assemble and petition the
government for redress of grievances.340
In 1993, the issue on the Jehovah’s Witnesses’ participation in the
flag ceremony again came before the Court in Ebralinag v. The
Division Superintendent of Schools.341 A unanimous Court
overturned the Gerona ruling after three decades. Similar to
Gerona, this case involved several Jehovah’s Witnesses who were
expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the same religious
freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice
Teehankee’s dissent in German, viz:
The sole justification for a prior restraint or limitation on the
exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and
duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah’s Witnesses
from saluting the flag, singing the national anthem and reciting
the patriotic pledge, this religious group which admittedly
comprises a ‘small portion of the school population’ will shake up
our part of the globe and suddenly produce a nation ‘untaught and
uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes’
(Gerona v. Secretary of Education, 106 Phil. 224). After all, what
the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government,
and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation or profession and be taught
the virtues of ‘patriotism, respect for human rights, appreciation

of national heroes, the rights and duties of citizenship, and moral
and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as
part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this
Court has feared in Gerona. Forcing a small religious group,
through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities. 343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to
the country, x x x- assuming that such unity and loyalty can be
attained through coercion- is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means. (Meyer vs. Nebraska,
262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the
Victoriano case and its use of the "compelling state interest" test
in according exemption to the Jehovah’s Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54,
72-75, we upheld the exemption of members of the Iglesia ni
Cristo, from the coverage of a closed shop agreement between
their employer and a union because it would violate the teaching
of their church not to join any group:
‘x x x It is certain that not every conscience can be accommodated
by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless
some ‘compelling state interest’ intervenes.’ (Sherbert vs. Verner,
374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)’
We hold that a similar exemption may be accorded to the
Jehovah’s Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs, however
‘bizarre’ those beliefs may seem to others. 345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a
dissenting opinion in German which involved prior restraint of
religious worship with overtones of the right to free speech and
assembly, was transported to Ebralinag which did not involve
prior restraint of religious worship, speech or assembly. Although,
it might be observed that the Court faintly implied that Ebralinag
also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate
in the flag ceremony "is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights
which guarantees their rights to free speech and the free exercise
of religious profession and worship;" the Court then stated in a
footnote that the "flag salute, singing the national anthem and
reciting the patriotic pledge are all forms of utterances." 346
The "compelling state interest" test was not fully applied by the
Court in Ebralinag. In the Solicitor General’s consolidated
comment, one of the grounds cited to defend the expulsion orders
issued by the public respondents was that "(t)he State’s
compelling interests being pursued by the DEC’s lawful
regulations in question do not warrant exemption of the school
children of the Jehovah’s Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only
towards the end of the decision and did not even mention what the
Solicitor General argued as the compelling state interest, much
less did the Court explain why the interest was not sufficiently
compelling to override petitioners’ religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of
Iglesia ni Cristo v. Court of Appeals, et al.348Although there was a
dissent with respect to the applicability of the "clear and present
danger" test in this case, the majority opinion in unequivocal
terms applied the "clear and present danger" test to religious
speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia
ni Cristo’s submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground
that they "offend and constitute an attack against other religions
which is expressly prohibited by law." Invoking religious
freedom, petitioner alleged that the Board acted without
jurisdiction or with grave abuse of discretion in requiring it to
submit the VTR tapes of its television program and x-rating them.
While upholding the Board’s power to review the Iglesia
television show, the Court was emphatic about the preferred status
of religious freedom. Quoting Justice Cruz’ commentary on the
constitution, the Court held that freedom to believe is absolute but
freedom to act on one’s belief, where it affects the public, is
subject to the authority of the state. The commentary quoted
Justice Frankfurter’s dissent in Barnette which was quoted in
Gerona, viz: "(t)he constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave
religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to
law because of religious dogma."349 Nevertheless, the Court was
quick to add the criteria by which the state can regulate the
exercise of religious freedom, that is, when the exercise will bring
about the "clear and present danger of some substantive evil
which the State is duty bound to prevent, i.e., serious detriment to
the more overriding interest of public health, public morals, or
public welfare."350
54
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. 4052358 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 x x x           x x x          x x x
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
55
and state was not at issue as the controversy was over who should
have custody of a saint’s image, it nevertheless made
pronouncements on the separation of church and state along the
same line as the Aglipay ruling. The Court held that there was
nothing unconstitutional or illegal in holding a fiesta and having a
patron saint for the barrio. It adhered to the barrio resolutions of
the barangay involved in the case stating that the barrio fiesta is a
socio-religious affair, the celebration of which is an "ingrained
tradition in rural communities" that "relieves the monotony and
drudgery of the lives of the masses." Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship
of the patron saint such as the acquisition and display of his image
bought with funds obtained through solicitation from the barrio
residents. The Court pointed out that the image of the patron saint
was "purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for
the purpose of favoring any religion nor interfering with religious
matters or the religious beliefs of the barrio residents." Citing the
Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure
of public funds and which has some religious tint is violative of
the constitutional provisions regarding separation of church and
state, freedom of worship and banning the use of public money or
property.
Then came the 1978 case of Pamil v. Teleron, et al. 362 which
presented a novel issue involving the religion clauses. In this case,
Section 2175 of the Revised Administrative Code of 1917
disqualifying ecclesiastics from appointment or election as
municipal officer was challenged. After protracted deliberation,
the Court was sharply divided on the issue. Seven members of the
Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise
perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muñoz-
Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: "The
challenged Administrative Code provision, certainly insofar as it
declares ineligible ecclesiastics to any elective or appointive
office, is, on its face, inconsistent with the religious freedom
guaranteed by the Constitution." Citing Torcaso v. Watkins, 363 the
ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that ‘no
religious test ought ever to be required as a disqualification for
any office or profit or trust in this State, other than a declaration of
belief in the existence of God ***.’ Such a constitutional
requirement was assailed as contrary to the First Amendment of

the United States Constitution by an appointee to the office of
notary public in Maryland, who was refused a commission as he
would not declare a belief in God. He failed in the Maryland
Court of Appeals but prevailed in the United States Supreme
Court, which reversed the state court decision. It could not have
been otherwise. As emphatically declared by Justice Black: ‘this
Maryland religious test for public office unconstitutionally
invades the appellant’s freedom of belief and religion and
therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of
belief in God that was a disqualification. Here being an
ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility
between the Administrative Code provision relied upon by
petitioner and an express constitutional mandate. 364
On the other hand, the prevailing five other members of the Court
- Chief Justice Castro, Justices Barredo, Makasiar, Antonio and
Aquino - approached the case from a non-establishment
perspective and upheld the law as a safeguard against the constant
threat of union of church and state that has marked Philippine
history. Justice Makasiar stated: "To allow an ecclesiastic to head
the executive department of a municipality is to permit the erosion
of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion
which the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the
Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals
with intramural religious disputes. Fonacier v. Court of
Appeals365 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:
56
In holding as we do, plainly we are not fostering the
"establishment" of the Seventh-day Adventist religion in South
Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects
nothing more than the governmental obligation of neutrality in the
face of religious differences, and does not represent that
involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall. 371 (emphasis
supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case
where the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious
bodies in violation of the Establishment Clause. But the Court
held that the exemption was not a case of establishing religion but
merely upholding the Free Exercise Clause by "sparing the
exercise of religion from the burden of property taxation levied on
private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to
clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case
held that the exemption afforded by law to religious sects who
prohibit their members from joining unions did not offend the
Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress
acted consistently with the spirit of the constitutional provision. It
acted merely to relieve the exercise of religion, by certain persons,
of a burden that is imposed by union security
agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In
Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking
down of which might seriously interfere with certain religious
liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in
the actual cases that come to the Court. In cases involving both
the Establishment Clause and the Free Exercise Clause, the two
clauses should be balanced against each other. The courts must
review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the

Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given
an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free
exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizen’s free exercise
of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two
religion clauses, the courts convey a message of hostility to the
religion that in that case cannot be freely exercised. 374 American
professor of constitutional law, Laurence Tribe, similarly suggests
that the free exercise principle "should be dominant in any
conflict with the anti-establishment principle." This dominance
would be the result of commitment to religious tolerance instead
of "thwarting at all costs even the faintest appearance of
establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J.
asserts that a literal interpretation of the religion clauses does not
suffice. Modern society is characterized by the expanding
regulatory arm of government that reaches a variety of areas of
human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal
values the religion clauses are intended to protect must be
considered in their interpretation and resolution of the tension.
This, in fact, has been the approach followed by the Philippine
Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows
that these clauses were largely adopted from the First Amendment
of the U.S. Constitution. The religion clauses in the First
Amendment were contained in every organic Act of the
Philippines under the American regime. When the delegates of the
1934 Constitutional Convention adopted a Bill of Rights in the
1935 Constitution, they purposely retained the phraseology of the
religion clauses in the First Amendment as contained in the Jones
Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause
cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case. The
Free Exercise Clause cases were also scarce then. Over the years,
however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the
U.S. exponentially increased. With this increase came an
expansion of the interpretation of the religion clauses, at times
reinforcing prevailing case law, at other times modifying it, and
still at other times creating contradictions so that two main
streams of jurisprudence had become identifiable. The first stream
employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this
change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion
clauses in the 1973 Constitution and later, the 1987 Constitution.
Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between
the two streams of U.S. jurisprudence. One might simply conclude
that the Philippine Constitutions and jurisprudence also inherited
the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes
before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history
of the First Amendment as narrated by the Court in Everson
supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion
clauses’ history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently
burdens his religious exercise, he faces an almost insurmountable
wall in convincing the Court that the wall of separation would not
be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the
1987, 1973 and 1935 Constitutions as shown by other provisions
on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions
should be reconciled and harmonized in a manner that will give to
all of them full force and effect.377 From this construction, it will
be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution
provided for an Establishment Clause, it also provided for tax
exemption of church property in Article VI, Section 22, par. 3(b),
viz:
(3) Cemeteries, churches, and parsonages or convents,
appurtenant thereto, and all lands, buildings, and improvements
used exclusively for religious, charitable, or educational purposes
shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the
same effect, the Tydings-McDuffie Law contained a limitation on
the taxing power of the Philippine government during the
Commonwealth period.379 The original draft of the Constitution
57
placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by
the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body
of the Constitution on the rationale that "if churches, convents
[rectories or parsonages] and their accessories are always
necessary for facilitating the exercise of such [religious] freedom,
it would also be natural that their existence be also guaranteed by
exempting them from taxation."380 The amendment was readily
approved with 83 affirmative votes against 15 negative votes. 381
The Philippine constitutional provision on tax exemption is not
found in the U.S. Constitution. In the U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand
Establishment Clause scrutiny by stating that church property was
not singled out but was exempt along with property owned by
non-profit, quasi-public corporations because the state upheld the
secular policy "that considers these groups as beneficial and
stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest." The
Court also stated that the exemption was meant to relieve the
burden on free exercise imposed by property taxation. At the same
time, however, the Court acknowledged that the exemption was
an exercise of benevolent neutrality to accommodate a long-
standing tradition of exemption. With the inclusion of the church
property tax exemption in the body of the 1935 Constitution and
not merely as an ordinance appended to the Constitution, the
benevolent neutrality referred to in the Walz case was given
constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the
exercise of religious liberty, thereby evincing benevolence
towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section
23(3), viz:
(3) No public money, or property shall ever be appropriated,
applied, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution or
system of religion, for the use, benefit or support of any priest,
preacher, ministers or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is
assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion
of section 3 of the Jones Law which did not contain the above
exception, viz:

No public money or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of
any sect, church denomination, sectarian institution, or system of
religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was
proposed to strike down everything after "church
denomination."383 The proposal intended to imitate the silence of
the U.S. Constitution on the subject of support for priests and
ministers. It was also an imitation of the silence of the Malolos
Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt
about its legality. It was pointed out, however, that even with the
prohibition under the Jones Law, appropriations were made to
chaplains of the national penitentiary and the Auditor General
upheld its validity on the basis of a similar United States practice.
But it was also pointed out that the U.S. Constitution did not
contain a prohibition on appropriations similar to the Jones
Law.384 To settle the question on the constitutionality of payment
of salaries of religious officers in certain government institutions
and to avoid the feared situation where the enumerated
government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced
and approved. The provision garnered 74 affirmative votes against
34 negative votes.385 As pointed out in the deliberations, the U.S.
Constitution does not provide for this exemption. However, the
U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of
Texas’ payment of prison chaplains’ salaries as reasonably
necessary to permit inmates to practice their religion. Also, in the
Marsh case, the U.S. Supreme Court upheld the long-standing
tradition of beginning legislative sessions with prayers offered by
legislative chaplains retained at taxpayers’ expense. The
constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine
Constitution from the U.S. Constitution in its adoption of
benevolent neutrality in Philippine jurisdiction. While the
provision prohibiting aid to religion protects the wall of separation
between church and state, the provision at the same time gives
constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is
contemplated in the Philippine Establishment Clause, the 1935
Constitution provides for optional religious instruction in public
schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative
Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for
one-half hour three times a week, in the school building, to those
public-school pupils whose parents or guardians desire it and
express their desire therefor in writing filed with the principal of
the school . . .
During the debates of the Constitutional Convention, there were
three positions on the issue of religious instruction in public
schools. The first held that the teaching of religion in public
schools should be prohibited as this was a violation of the
principle of separation of church and state and the prohibition
against the use of public funds for religious purposes. The second
favored the proposed optional religious instruction as authorized
by the Administrative Code and recognized that the actual
practice of allowing religious instruction in the public schools was
sufficient proof that religious instruction was not and would not
be a source of religious discord in the schools.386The third wanted
religion to be included as a course in the curriculum of the public
schools but would only be taken by pupils at the option of their
parents or guardians. After several rounds of debate, the second
camp prevailed, thus raising to constitutional stature the optional
teaching of religion in public schools, despite the opposition to the
provision on the ground of separation of church and state. 387 As in
the provisions on church property tax exemption and
compensation of religious officers in government institutions, the
U.S. Constitution does not provide for optional religious
instruction in public schools. In fact, in the McCollum case, the
Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within
the school premises. The constitutional provision on optional
religious instruction shows that Philippine jurisdiction rejects the
strict neutrality approach which does not allow such
accommodation of religion.
Finally, to make certain the Constitution’s benevolence to
religion, the Filipino people "implored (ing) the aid of Divine
Providence (,) in order to establish a government that shall
embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of
justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution." A preamble is a "key to open
the mind of the authors of the constitution as to the evil sought to
be prevented and the objects sought to be accomplished by the
provisions thereof."388 There was no debate on the inclusion of a
"Divine Providence" in the preamble. In Aglipay, Justice Laurel
noted that when the Filipino people implored the aid of Divine
58
Providence, "(t)hey thereby manifested their intense religious
nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations."389 The 1935 Constitution’s religion
clauses, understood alongside the other provisions on religion in
the Constitution, indubitably shows not hostility, but benevolence,
to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a
provision similar to Article VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property from taxation, with
the modification that the property should not only be used
directly, but also actually and exclusively for religious or
charitable purposes. Parallel to Article VI, Section 23(3) of the
1935 Constitution, the 1973 Constitution also contained a similar
provision on salaries of religious officials employed in the
enumerated government institutions. Article XIII, Section 5 of the
1935 Constitution on optional religious instruction was also
carried to the 1973 Constitution in Article XV, Section 8(8) with
the modification that optional religious instruction shall be
conducted "as may be provided by law" and not "as now
authorized by law" as stated in the 1935 Constitution. The 1973
counterpart, however, made explicit in the constitution that the
religious instruction in public elementary and high schools shall
be done "(a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government." With
the adoption of these provisions in the 1973 Constitution, the
benevolent neutrality approach continued to enjoy constitutional
sanction. In Article XV, Section 15 of the General Provisions of
the 1973 Constitution this provision made its maiden appearance:
"(t)he separation of church and state shall be inviolable." The
1973 Constitution retained the portion of the preamble "imploring
the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles
and Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the
Everson case and reiterated in Schempp - i.e., neutrality not only
as between one religion and another but even as between religion
and non-religion - is embodied in the Philippine Constitution. The
sub-committee’s answer was that it did not seem so. Citing the
Aglipay case where Justice Laurel recognized the "elevating
influence of religion in human society" and the Filipinos’
imploring of Divine Providence in the 1935 Constitution, the sub-
committee asserted that the state may not prefer or aid one
religion over another, but may aid all religions equally or the
cause of religion in general.391 Among the position papers
submitted to the Committee on Church on State was a background
paper for reconsideration of the religion provisions of the
constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact

recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates
not a strict neutrality but benevolent neutrality. While the
Committee introduced the provision on separation of church and
state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the
1935 Constitution even in the absence of a similar provision. 393
Then came the 1987 Constitution. The 1973 Constitutional
provision on tax exemption of church property was retained with
minor modification in Article VI, Section 28(3) of the 1987
Constitution. The same is true with respect to the prohibition on
the use of public money and property for religious purposes and
the salaries of religious officers serving in the enumerated
government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility
of allowing the government to spend public money for purposes
which might have religious connections but which would benefit
the public generally. Citing the Aglipay case, Commissioner
Rodrigo explained that if a public expenditure would benefit the
government directly, such expense would be constitutional even if
it results to an incidental benefit to religion. With that explanation,
Commissioner Bacani no longer pursued his proposal.394
The provision on optional religious instruction was also adopted
in the 1987 Constitution in Article XIV, Section 3(3) with the
modification that it was expressly provided that optional
instruction shall be conducted "within the regular class hours" and
"without additional cost to the government". There were
protracted debates on what additional cost meant, i.e., cost over
and above what is needed for normal operations such as wear and
tear, electricity, janitorial services, 395 and when during the day
instruction would be conducted.396 In deliberating on the phrase
"within the regular class hours," Commissioner Aquino expressed
her reservations to this proposal as this would violate the time-
honored principle of separation of church and state. She cited the
McCullom case where religious instruction during regular school
hours was stricken down as unconstitutional and also cited what
she considered the most liberal interpretation of separation of
church and state in Surach v. Clauson where the U.S. Supreme
Court allowed only release time for religious instruction. Fr.
Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an
exception to the rule on non-establishment of religion, because if
it were not necessary to make this exception for purposes of
allowing religious instruction, then we could just drop the
amendment. But, as a matter of fact, this is necessary because we
are trying to introduce something here which is contrary to
American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
The provision on the separation of church and state was retained
but placed under the Principles in the Declaration of Principles
and State Policies in Article II, Section 6. In opting to retain the
wording of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence
‘The separation of Church and State is inviolable,’ is almost a
useless statement; but at the same time it is a harmless statement.
Hence, I am willing to tolerate it there, because, in the end, if we
look at the jurisprudence on Church and State, arguments are
based not on the statement of separation of church and state but on
the non-establishment clause in the Bill of Rights. 398
The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate
on whether to use "Almighty God" which Commissioner Bacani
said was more reflective of Filipino religiosity, but Commissioner
Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also
proposed, but the phrase "Almighty God" prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that the 1987
Constitution is not hostile nor indifferent to religion;400 its wall of
separation is not a wall of hostility or indifference. 401
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in
government institutions, optional religious instruction and the
preamble all reveal without doubt that the Filipino people, in
adopting these constitutions, did not intend to erect a high and
impregnable wall of separation between the church and
state.402 The strict neutrality approach which examines only
whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a
rigid barrier. By adopting the above constitutional provisions on
religion, the Filipinos manifested their adherence to the
benevolent neutrality approach in interpreting the religion clauses,
an approach that looks further than the secular purposes of
government action and examines the effect of these actions on
religious exercise. Benevolent neutrality recognizes the religious
nature of the Filipino people and the elevating influence of
religion in society; at the same time, it acknowledges that
government must pursue its secular goals. In pursuing these goals,
however, government might adopt laws or actions of general
applicability which inadvertently burden religious exercise.
Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It
allows these breaches in the wall of separation to uphold religious
liberty, which after all is the integral purpose of the religion
clauses. The case at bar involves this first type of accommodation
59
where an exemption is sought from a law of general applicability
that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate
benevolent neutrality, benevolent neutrality does not mean that
the Court ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the Court will not
look with hostility or act indifferently towards religious beliefs
and practices and that it will strive to accommodate them when it
can within flexible constitutional limits; it does mean that the
Court will not simply dismiss a claim under the Free Exercise
Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the
religion clauses of the Constitution, i.e., that in the absence of
legislation granting exemption from a law of general applicability,
the Court can carve out an exception when the religion clauses
justify it. While the Court cannot adopt a doctrinal formulation
that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means
adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence
should be directed.403 We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but
more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this
approach is directed is the protection of religious liberty "not only
for a minority, however small- not only for a majority, however
large- but for each of us" to the greatest extent possible within
flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but
has also been recognized in Philippine jurisprudence, albeit not
expressly called "benevolent neutrality" or "accommodation". In
Aglipay, the Court not only stressed the "elevating influence of
religion in human society" but acknowledged the Constitutional
provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional
religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy
Week, Christmas Day and Sundays legal holidays. In Garces, the
Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and
denominations, but also acknowledged that government
participation in long-standing traditions which have acquired a
social character - "the barrio fiesta is a socio-religious affair" -
does not offend the Establishment Clause. In Victoriano, the
Court upheld the exemption from closed shop provisions of

members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to
relieve the burden on free exercise of religion. In Ebralinag,
members of the Jehovah’s Witnesses were exempt from saluting
the flag as required by law, on the basis not of a statute granting
exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form
and origin, Philippine constitutional law has departed from the
U.S. jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their
own, breathing the air of benevolent neutrality and
accommodation. Thus, the wall of separation in Philippine
jurisdiction is not as high and impregnable as the wall created by
the U.S. Supreme Court in Everson.404 While the religion clauses
are a unique American experiment which understandably came
about as a result of America’s English background and
colonization, the life that these clauses have taken in this
jurisdiction is the Philippines’ own experiment, reflective of the
Filipinos’ own national soul, history and tradition. After all, "the
life of the law. . . has been experience."
But while history, constitutional construction, and earlier
jurisprudence unmistakably show that benevolent neutrality is the
lens with which the Court ought to view religion clause cases, it
must be stressed that the interest of the state should also be
afforded utmost protection. To do this, a test must be applied to
draw the line between permissible and forbidden religious
exercise. It is quite paradoxical that in order for the members of a
society to exercise their freedoms, including their religious liberty,
the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for
unlimited freedom would erode order in the state and foment
anarchy, eventually destroying the very state its members
established to protect their freedoms. The very purpose of the
social contract by which people establish the state is for the state
to protect their liberties; for this purpose, they give up a portion of
these freedoms - including the natural right to free exercise - to
the state. It was certainly not the intention of the authors of the
constitution that free exercise could be used to countenance
actions that would undo the constitutional order that guarantees
free exercise.405
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom.
Philippine jurisprudence articulates several tests to determine
these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear
and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the
goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went
back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present
danger" test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible
Society, Ebralinag and Iglesia ni Cristo where the "clear and
present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct
has different effects on the state’s interests: some effects may be
immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights", in the words
of Jefferson.406 This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty,407 thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which
60
balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed.408 In determining
which shall prevail between the state’s interest and religious
liberty, reasonableness shall be the guide.409 The "compelling state
interest" serves the purpose of revering religious liberty while at
the same time affording protection to the paramount interests of
the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without
which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government
employees engaged in illicit relations are guilty of "disgraceful
and immoral conduct" for which he/she may be held
administratively liable.410 In these cases, there was not one dissent
to the majority’s ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct
was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act.
The facts of the 1975 case of De Dios v. Alejo411 and the 1999
case of Maguad v. De Guzman,412 are similar to the case at bar -
i.e., the complainant is a mere stranger and the legal wife has not
registered any objection to the illicit relation, there is no proof of
scandal or offense to the moral sensibilities of the community in
which the respondent and the partner live and work, and the
government employee is capacitated to marry while the partner is
not capacitated but has long been separated in fact. Still, the Court
found the government employees administratively liable for
"disgraceful and immoral conduct" and only considered the
foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and
immoral conduct for which a government employee is held liable.
Nor is there an allegation that the norms of morality with respect
to illicit relations have shifted towards leniency from the time
these precedent cases were decided. The Court finds that there is
no such error or shift, thus we find no reason to deviate from these
rulings that such illicit relationship constitutes "disgraceful and
immoral conduct" punishable under the Civil Service Law.
Respondent having admitted the alleged immoral conduct, she,
like the respondents in the above-cited cases, could be held
administratively liable. However, there is a distinguishing factor
that sets the case at bar apart from the cited precedents, i.e., as a
defense, respondent invokes religious freedom since her religion,

the Jehovah’s Witnesses, has, after thorough investigation,
allowed her conjugal arrangement with Quilapio based on the
church’s religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case
at bar, both the dissenting opinion of Mme. Justice Ynares-
Santiago and the separate opinion of Mr. Justice Vitug dwell more
on the standards of morality than on the religion clauses in
deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates’ words, "how we ought to
live" and why. Any definition of morality beyond Socrates’
simple formulation is bound to offend one or another of the many
rival theories regarding what it means to live morally. 413 The
answer to the question of how we ought to live necessarily
considers that man does not live in isolation, but in society.
Devlin posits that a society is held together by a community of
ideas, made up not only of political ideas but also of ideas about
the manner its members should behave and govern their lives. The
latter are their morals; they constitute the public morality. Each
member of society has ideas about what is good and what is evil.
If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having
established the society on common agreement, the agreement
collapses, the society will disintegrate. Society is kept together by
the invisible bonds of common thought so that if the bonds are too
loose, the members would drift apart. A common morality is part
of the bondage and the bondage is part of the price of society; and
mankind, which needs society, must pay its price.414 This design is
parallel with the social contract in the realm of politics: people
give up a portion of their liberties to the state to allow the state to
protect their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their
liberties and embody this agreement in a constitution, hence
referred to as the fundamental law of the land. A complete break
of this fundamental agreement such as by revolution destroys the
old order and creates a new one.415 Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the
manner a society’s members should behave and govern their lives
would disintegrate society. Thus, society is justified in taking
steps to preserve its moral code by law as it does to preserve its
government and other essential institutions.416 From these
propositions of Devlin, one cannot conclude that Devlin negates
diversity in society for he is merely saying that in the midst of this
diversity, there should nevertheless be a "fundamental agreement
about good and evil" that will govern how people in a society
ought to live. His propositions, in fact, presuppose diversity hence
the need to come to an agreement; his position also allows for
change of morality from time to time which may be brought about
by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental
values and principles are translated into legislation that governs
the order of society, laws that may be amended from time to time.
Hart’s argument propounded in Mr. Justice Vitug’s separate
opinion that, "Devlin’s view of people living in a single society as
having common moral foundation (is) overly simplistic" because
"societies have always been diverse" fails to recognize the
necessity of Devlin’s proposition in a democracy. Without
fundamental agreement on political and moral ideas, society will
fall into anarchy; the agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free,
every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule
is a necessary principle in this democratic governance. 417 Thus,
when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median
groups.418 Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of
religious freedom "not only for a minority, however small- not
only for a majority, however large- but for each of us" -- the
majority imposes upon itself a self-denying ordinance. It promises
not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.419 In the realm of religious exercise,
benevolent neutrality that gives room for accommodation carries
out this promise, provided the compelling interests of the state are
not eroded for the preservation of the state is necessary to the
preservation of religious liberty. That is why benevolent neutrality
is necessary in a pluralistic society such as the United States and
the Philippines to accommodate those minority religions which
are politically powerless. It is not surprising that Smith is much
criticized for it blocks the judicial recourse of the minority for
religious accommodations.
The laws enacted become expressions of public morality. As
Justice Holmes put it, "(t)he law is the witness and deposit of our
moral life."420 "In a liberal democracy, the law reflects social
morality over a period of time."421Occasionally though, a
disproportionate political influence might cause a law to be
enacted at odds with public morality or legislature might fail to
61
repeal laws embodying outdated traditional moral views. 422 Law
has also been defined as "something men create in their best
moments to protect themselves in their worst moments." 423 Even
then, laws are subject to amendment or repeal just as judicial
pronouncements are subject to modification and reversal to better
reflect the public morals of a society at a given time. After all,
"the life of the law...has been experience," in the words of Justice
Holmes. This is not to say though that law is all of morality. Law
deals with the minimum standards of human conduct while
morality is concerned with the maximum. A person who regulates
his conduct with the sole object of avoiding punishment under the
law does not meet the higher moral standards set by society for
him to be called a morally upright person.424 Law also serves as "a
helpful starting point for thinking about a proper or ideal public
morality for a society"425 in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the
relationship between law and public morality. We held that under
the utilitarian theory, the "protective theory" in criminal law,
"criminal law is founded upon the moral disapprobation x x x of
actions which are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which depend the existence
and progress of human society. This disapprobation is inevitable
to the extent that morality is generally founded and built upon a
certain concurrence in the moral opinions of all. x x x That which
we call punishment is only an external means of emphasizing
moral disapprobation: the method of punishment is in reality the
amount of punishment."427 Stated otherwise, there are certain
standards of behavior or moral principles which society requires
to be observed and these form the bases of criminal law. Their
breach is an offense not only against the person injured but
against society as a whole.428 Thus, even if all involved in the
misdeed are consenting parties, such as in the case at bar, the
injury done is to the public morals and the public interest in the
moral order.429 Mr. Justice Vitug expresses concern on this point
in his separate opinion. He observes that certain immoral acts
which appear private and not harmful to society such as sexual
congress "between a man and a prostitute, though consensual and
private, and with no injured third party, remains illegal in this
country." His opinion asks whether these laws on private morality
are justified or they constitute impingement on one’s freedom of
belief. Discussion on private morality, however, is not material to
the case at bar for whether respondent’s conduct, which
constitutes concubinage,430 is private in the sense that there is no
injured party or the offended spouse consents to the concubinage,
the inescapable fact is that the legislature has taken concubinage
out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in the case at bar.
In the definition of the crime of concubinage, consent of the
injured party, i.e., the legal spouse, does not alter or negate the

crime unlike in rape431 where consent of the supposed victim
negates the crime. If at all, the consent or pardon of the offended
spouse in concubinage negates the prosecution of the action, 432 but
does not alter the legislature’s characterization of the act as a
moral disapprobation punishable by law. The separate opinion
states that, "(t)he ponencia has taken pains to distinguish between
secular and private morality, and reached the conclusion that the
law, as an instrument of the secular State should only concern
itself with secular morality." The Court does not draw this
distinction in the case at bar. The distinction relevant to the case is
not, as averred and discussed by the separate opinion, "between
secular and private morality," but between public and secular
morality on the one hand, and religious morality on the other,
which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal
or otherwise. We recognized this reality in Velayo, et al. v. Shell
Co. of the Philippine Islands, et al., where we explained that for
those wrongs which are not punishable by law, Articles 19 and 21
in Chapter 2 of the Preliminary Title of the New Civil Code,
dealing with Human Relations, provide for the recognition of the
wrong and the concomitant punishment in the form of damages.
Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due
and observe honesty and good faith. x x x           x x x          x x x
Art. 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage. (emphasis
supplied)
We then cited in Velayo the Code Commission’s comment on
Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved
(as it was approved), would vouchsafe adequate legal remedy for
that untold numbers of moral wrongs which is impossible for
human foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? The answer is that, in
the last analysis, every good law draws its breath of life from
morals, from those principles which are written with words of fire
in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the
impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and statutes
have changed from age to age, the conscience of man has
remained fixed to its ancient moorings, one can not but feel that it
is safe and salutary to transmute, as far as may be, moral norms
into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon
the social order than that a person may with impunity cause
damage to his fellow-men so long as he does not break any law of
the State, though he may be defying the most sacred postulates of
morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.
A provision similar to the one under consideration is embodied in
article 826 of the German Civil Code.433(emphases supplied)
The public morality expressed in the law is necessarily secular for
in our constitutional order, the religion clauses prohibit the state
from establishing a religion, including the morality it sanctions.
Religious morality proceeds from a person’s "views of his
relations to His Creator and to the obligations they impose of
reverence to His being and character and obedience to His Will,"
in accordance with this Court’s definition of religion in American
Bible Society citing Davis. Religion also dictates "how we ought
to live" for the nature of religion is not just to know, but often, to
act in accordance with man’s "views of his relations to His
Creator."434 But the Establishment Clause puts a negative bar
against establishment of this morality arising from one religion or
the other, and implies the affirmative "establishment" of a civil
order for the resolution of public moral disputes. This agreement
on a secular mechanism is the price of ending the "war of all sects
against all"; the establishment of a secular public moral order is
the social contract produced by religious truce. 435
Thus, when the law speaks of "immorality" in the Civil Service
Law or "immoral" in the Code of Professional Responsibility for
lawyers436 , or "public morals" in the Revised Penal Code,437 or
"morals" in the New Civil Code,438or "moral character" in the
Constitution,439 the distinction between public and secular morality
on the one hand, and religious morality, on the other, should be
kept in mind.440 The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate
may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular
terms."441 Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore
be compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief
62
and thereby also tacitly disapprove contrary religious or non-
religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious
freedom therefore requires that government be neutral in matters
of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality.442
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence
on those engaged in public deliberations over what actions would
be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious
opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual
institutions of society in a uniform manner, harmonizing earth
with heaven.443 Succinctly put, a law could be religious or Kantian
or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. Otherwise, if a law has an
apparent secular purpose but upon closer examination shows a
discriminatory and prohibitory religious purpose, the law will be
struck down for being offensive of the religion clauses as in
Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme
Court invalidated an ordinance prohibiting animal sacrifice of the
Santeria. Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine
constitution’s religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the
same time strives to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.
Mr. Justice Vitug’s separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar,
the approach should consider that, "(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to
protect the interests of the larger society. It is only where their
rigid application would serve to obliterate the value which society
seeks to uphold, or defeat the purpose for which they are enacted
would, a departure be justified." In religion clause parlance, the

separate opinion holds that laws of general applicability governing
morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of
these laws (which are the Civil Service Law and the laws on
marriage) would erode the secular purposes of the law (which the
separate opinion identifies as upholding the sanctity of marriage
and the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and
practice (which the separate opinion holds should be respected on
the ground of freedom of belief) that would promote the very
same secular purpose of upholding the sanctity of marriage and
family through the Declaration Pledging Faithfulness that makes
the union binding and honorable before God and men, is required
by the Free Exercise Clause. The separate opinion then makes a
preliminary discussion of the values society seeks to protect in
adhering to monogamous marriage, but concludes that these
values and the purposes of the applicable laws should be
thoroughly examined and evidence in relation thereto presented in
the OCA. The accommodation approach in the case at bar would
also require a similar discussion of these values and presentation
of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the
unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed -
albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because the jurisdiction of the
Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. More
concretely, should the Court declare respondent’s conduct as
immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is
reprehensible or there are state interests overriding her religious
freedom. For as long as her conduct is being judged within this
realm, she will be accountable to the state. But in so ruling, the
Court does not and cannot say that her conduct should be made
reprehensible in the realm of her church where it is presently
sanctioned and that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique
circumstances, public morality is not offended or that upholding
her religious freedom is an interest higher than upholding public
morality thus her conduct should not be penalized. But the Court
is not ruling that the tenets and practice of her religion are correct
nor that other churches which do not allow respondent’s conjugal
arrangement should likewise allow such conjugal arrangement or
should not find anything immoral about it and therefore members
of these churches are not answerable for immorality to their
Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that
courts cannot inquire about the truth of religious beliefs.
Similarly, in Fonacier, this Court declared that matters dealing
with "faith, practice, doctrine, form of worship, ecclesiastical law,
custom and rule of a church…are unquestionably ecclesiastical
matters which are outside the province of the civil courts." 444 But
while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the
religious clauses, the social contract and the constitutional order
are designed in such a way that when religious belief flows into
speech and conduct that step out of the religious sphere and
overlap with the secular and public realm, the state has the power
to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the
state. The state’s inroad on religion exercise in excess of this
constitutional design is prohibited by the religion clauses; the Old
World, European and American history narrated above bears out
the wisdom of this proscription.
Having distinguished between public and secular morality and
religious morality, the more difficult task is determining which
immoral acts under this public and secular morality fall under the
phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable. The
line is not easy to draw for it is like "a line that divides land and
sea, a coastline of irregularities and indentations." 445 But the case
at bar does not require us to comprehensively delineate between
those immoral acts for which one may be held administratively
liable and those to which administrative liability does not attach.
We need not concern ourselves in this case therefore whether
"laziness, gluttony, vanity, selfishness, avarice and cowardice" are
immoral acts which constitute grounds for administrative liability.
Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal
acts are immoral, or different jurisdictions have different
standards of morality as discussed by the dissents and separate
opinions, although these observations and propositions are true
and correct. It is certainly a fallacious argument that because there
are exceptions to the general rule that the "law is the witness and
deposit of our moral life," then the rule is not true; in fact, that
there are exceptions only affirms the truth of the rule. Likewise,
the observation that morality is relative in different jurisdictions
only affirms the truth that there is morality in a particular
jurisdiction; without, however, discounting the truth that
underneath the moral relativism are certain moral absolutes such
as respect for life and truth-telling, without which no society will
survive. Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is
legally married to another which Philippine law and jurisprudence
consider both immoral and illegal. Lest the Court inappropriately
engage in the impossible task of prescribing comprehensively how
63
one ought to live, the Court must focus its attention upon the sole
conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting
opinion of Mme. Justice Ynares-Santiago groped for standards of
morality and stated that the "ascertainment of what is moral or
immoral calls for the discovery of contemporary community
standards" but did not articulate how these standards are to be
ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to
be considered." It identified the Civil Service Law and the laws on
adultery and concubinage as laws which respondent’s conduct has
offended and cited a string of precedents where a government
employee was found guilty of committing a "disgraceful and
immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled
jurisprudence, respondent’s conduct constitutes "disgraceful and
immoral conduct." However, the cases cited by the dissent do not
involve the defense of religious freedom which respondent in the
case at bar invokes. Those cited cases cannot therefore serve as
precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v.
United States446 in laying down the standard of morality, viz:
"(w)hether an act is immoral within the meaning of the statute is
not to be determined by respondent’s concept of morality. The
law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it
condemns." The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate
commerce of "any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose."447 The resolution
of that case hinged on the interpretation of the phrase "immoral
purpose." The U.S. Supreme Court held that the petitioner
Mormons’ act of transporting at least one plural wife whether for
the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was
covered by the phrase "immoral purpose." In so ruling, the Court
relied on Reynolds which held that the Mormons’ practice of
polygamy, in spite of their defense of religious freedom, was
"odious among the northern and western nations of Europe,"448 "a
return to barbarism,"449 "contrary to the spirit of Christianity and
of the civilization which Christianity has produced in the Western
world,"450 and thus punishable by law.
The Cleveland standard, however, does not throw light to the
issue in the case at bar. The pronouncements of the U.S. Supreme
Court that polygamy is intrinsically "odious" or "barbaric" do not
apply in the Philippines where Muslims, by law, are allowed to
practice polygamy. Unlike in Cleveland, there is no jurisprudence
in Philippine jurisdiction holding that the defense of religious

freedom of a member of the Jehovah’s Witnesses under the same
circumstances as respondent will not prevail over the laws on
adultery, concubinage or some other law. We cannot summarily
conclude therefore that her conduct is likewise so "odious" and
"barbaric" as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies
more on determining the applicable moral standards and less on
religious freedom, Mme. Justice Ynares-Santiago’s dissent
nevertheless discussed respondent’s plea of religious freedom and
disposed of this defense by stating that "(a) clear and present
danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and
enjoyment of religious profession. (American Bible Society v.
City of Manila, 101 Phil. 386 [1957]). In addition to the
destruction of public morals, the substantive evil in this case is the
tearing down of morality, good order, and discipline in the
judiciary." However, the foregoing discussion has shown that the
"clear and present danger" test that is usually employed in cases
involving freedom of expression is not appropriate to the case at
bar which involves purely religious conduct. The dissent also cites
Reynolds in supporting its conclusion that respondent is guilty of
"disgraceful and immoral conduct." The Reynolds ruling,
however, was reached with a strict neutrality approach, which is
not the approach contemplated by the Philippine constitution. As
discussed above, Philippine jurisdiction adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpio’s dissent which employs
strict neutrality does not reflect the constitutional intent of
employing benevolent neutrality in interpreting the Philippine
religion clauses. His dissent avers that respondent should be held
administratively liable not for "disgraceful and immoral conduct"
but "conduct prejudicial to the best interest of the service" as she
is a necessary co-accused of her partner in concubinage. The
dissent stresses that being a court employee, her open violation of
the law is prejudicial to the administration of justice. Firstly, the
dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." In addition, there is
no evidence of the alleged prejudice to the best interest of the
service. Most importantly, the dissent concludes that respondent’s
plea of religious freedom cannot prevail without so much as
employing a test that would balance respondent’s religious
freedom and the state’s interest at stake in the case at bar. The
foregoing discussion on the doctrine of religious freedom,
however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondent’s plea of religious
freedom without even subjecting it to the "compelling state
interest" test that would balance her freedom with the paramount
interests of the state. The strict neutrality employed in the cases
the dissent cites -Reynolds, Smith and People v. Bitdu decided
before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v.
Judge Nabdar J. Malik451 cited in Mr. Justice Carpio’s dissent
decisive of the immorality issue in the case at bar. In that case, the
Court dismissed the charge of immorality against a Tausug judge
for engaging in an adulterous relationship with another woman
with whom he had three children because "it (was) not ‘immoral’
by Muslim standards for Judge Malik to marry a second time
while his first marriage (existed)." Putting the quoted portion in its
proper context would readily show that the Sulu Islamic case does
not provide a precedent to the case at bar. Immediately prior to the
portion quoted by the dissent, the Court stressed, viz: "(s)ince Art.
180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy ‘shall not apply to a person
married x x x under Muslim Law,’ it is not ‘immoral’ by Muslim
standards for Judge Malik to marry a second time while his first
marriage exists."452 It was by law, therefore, that the Muslim
conduct in question was classified as an exception to the crime of
bigamy and thus an exception to the general standards of morality.
The constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu
Islamic case. Thus, the Court did not determine whether P.D. No.
1083 suffered from a constitutional infirmity and instead relied on
the provision excepting the challenged Muslim conduct from the
crime of bigamy in holding that the challenged act is not immoral
by Muslim standards. In contradistinction, in the case at bar, there
is no similar law which the Court can apply as basis for treating
respondent’s conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondent’s claim of religious freedom to the "compelling state
interest" test from a benevolent neutrality stance - i.e. entertaining
the possibility that respondent’s claim to religious freedom would
warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing
should the government succeed in demonstrating a more
compelling state interest.
In applying the test, the first inquiry is whether respondent’s right
to religious freedom has been burdened. There is no doubt that
choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and
64
giving up her employment and keeping her religious practice and
family on the other hand, puts a burden on her free exercise of
religion. In Sherbert, the Court found that Sherbert’s religious
exercise was burdened as the denial of unemployment benefits
"forces her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of her religion in order to accept work, on the
other hand." The burden on respondent in the case at bar is even
greater as the price she has to pay for her employment is not only
her religious precept but also her family which, by the Declaration
Pledging Faithfulness, stands "honorable before God and men."
The second step is to ascertain respondent’s sincerity in her
religious belief. Respondent appears to be sincere in her religious
belief and practice and is not merely using the "Declaration of
Pledging Faithfulness" to avoid punishment for immorality. She
did not secure the Declaration only after entering the judiciary
where the moral standards are strict and defined, much less only
after an administrative case for immorality was filed against her.
The Declaration was issued to her by her congregation after ten
years of living together with her partner, Quilapio, and ten years
before she entered the judiciary. Ministers from her congregation
testified on the authenticity of the Jehovah’s Witnesses’ practice
of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not
whimsically issued to avoid legal punishment for illicit conduct
but to make the "union" of their members under respondent’s
circumstances "honorable before God and men." It is also worthy
of notice that the Report and Recommendation of the
investigating judge annexed letters453 of the OCA to the
respondent regarding her request to be exempt from attending the
flag ceremony after Circular No. 62-2001 was issued requiring
attendance in the flag ceremony. The OCA’s letters were not
submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma
whether to find respondent guilty of immorality because the Court
Administrator and Deputy Court Administrator had different
positions regarding respondent’s request for exemption from the
flag ceremony on the ground of the Jehovah’s Witnesses’ contrary
belief and practice. Respondent’s request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovah’s
Witnesses’ beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovah’s
Witnesses and the Jehovah ministers testified that she is a member
in good standing. Nevertheless, should the government, thru the
Solicitor General, want to further question the respondent’s
sincerity and the centrality of her practice in her faith, it should be
given the opportunity to do so. The government has not been
represented in the case at bar from its incipience until this point.

In any event, even if the Court deems sufficient respondent’s
evidence on the sincerity of her religious belief and its centrality
in her faith, the case at bar cannot still be decided using the
"compelling state interest" test. The case at bar is one of first
impression, thus the parties were not aware of the burdens of
proof they should discharge in the Court’s use of the "compelling
state interest" test. We note that the OCA found respondent’s
defense of religious freedom unavailing in the face of the Court’s
ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in
the conduct, official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel. Court
personnel have been enjoined to adhere to the exacting standards
of morality and decency in their professional and private conduct
in order to preserve the good name and integrity of the courts of
justice.
It is apparent from the OCA’s reliance upon this ruling that the
state interest it upholds is the preservation of the integrity of the
judiciary by maintaining among its ranks a high standard of
morality and decency. However, there is nothing in the OCA’s
memorandum to the Court that demonstrates how this interest is
so compelling that it should override respondent’s plea of
religious freedom nor is it shown that the means employed by the
government in pursuing its interest is the least restrictive to
respondent’s religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The
burden of evidence should be discharged by the proper agency of
the government which is the Office of the Solicitor General. To
properly settle the issue in the case at bar, the government should
be given the opportunity to demonstrate the compelling state
interest it seeks to uphold in opposing the respondent’s stance that
her conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the
Court prohibit and punish her conduct where it is protected by the
Free Exercise Clause, the Court’s action would be an
unconstitutional encroachment of her right to religious
freedom.454 We cannot therefore simply take a passing look at
respondent’s claim of religious freedom, but must instead apply
the "compelling state interest" test. The government must be heard
on the issue as it has not been given an opportunity to discharge
its burden of demonstrating the state’s compelling interest which
can override respondent’s religious belief and practice. To repeat,
this is a case of first impression where we are applying the
"compelling state interest" test in a case involving purely religious
conduct. The careful application of the test is indispensable as
how we will decide the case will make a decisive difference in the
life of the respondent who stands not only before the Court but
before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of
the Court Administrator. The Solicitor General is ordered to
intervene in the case where it will be given the opportunity (a) to
examine the sincerity and centrality of respondent’s claimed
religious belief and practice; (b) to present evidence on the state’s
"compelling interest" to override respondent’s religious belief and
practice; and (c) to show that the means the state adopts in
pursuing its interest is the least restrictive to respondent’s
religious freedom. The rehearing should be concluded thirty (30)
days from the Office of the Court Administrator’s receipt of this
Decision.
SO ORDERED.
EN BANC
A.M. No. P-02-1651             June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,  the civil authorities’ approval of the marital relationship because
vs. SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite.
Respondent Soledad Escritor once again stands before the Court
invoking her religious freedom and her Jehovah God in a bid to
save her family – united without the benefit of legal marriage -
and livelihood. The State, on the other hand, seeks to wield its
power to regulate her behavior and protect its interest in marriage
and family and the integrity of the courts where respondent is an
employee. How the Court will tilt the scales of justice in the case
at bar will decide not only the fate of respondent Escritor but of
other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the
Office of the Court Administrator on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant
Alejandro Estrada requested Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Piñas City, for
an investigation of respondent Soledad Escritor, court interpreter
in said court, for living with a man not her husband, and having
borne a child within this live-in arrangement. Estrada believes that
Escritor is committing an immoral act that tarnishes the image of
the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her
act.2 Consequently, respondent was charged with committing
"disgraceful and immoral conduct" under Book V, Title I, Chapter
VI, Sec. 46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary
in 1999, she was already a widow, her husband having died in
1998.4 She admitted that she started living with Luciano Quilapio,
65
Jr. without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman.
She also admitted that she and Quilapio have a son. 5 But as a
member of the religious sect known as the Jehovah’s Witnesses
and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with
their religious beliefs and has the approval of her
congregation.6 In fact, after ten years of living together, she
executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."7
For Jehovah’s Witnesses, the Declaration allows members of the
congregation who have been abandoned by their spouses to enter
into marital relations. The Declaration thus makes the resulting
union moral and binding within the congregation all over the
world except in countries where divorce is allowed. As laid out by
the tenets of their faith, the Jehovah’s congregation requires that
at the time the declarations are executed, the couple cannot secure
of legal impediments. Only couples who have been baptized and
in good standing may execute the Declaration, which requires the
approval of the elders of the congregation. As a matter of practice,
the marital status of the declarants and their respective spouses’
commission of adultery are investigated before the declarations
are executed.8 Escritor and Quilapio’s declarations were executed
in the usual and approved form prescribed by the Jehovah’s
Witnesses,9 approved by elders of the congregation where the
declarations were executed,10 and recorded in the Watch Tower
Central Office.11
Moreover, the Jehovah’s congregation believes that once all legal
impediments for the couple are lifted, the validity of the
declarations ceases, and the couple should legalize their union. In
Escritor’s case, although she was widowed in 1998, thereby lifting
the legal impediment to marry on her part, her mate was still not
capacitated to remarry. Thus, their declarations remained
valid.12 In sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of
her congregation, in asserting that her conjugal arrangement does
not constitute disgraceful and immoral conduct for which she
should be held administratively liable,13 the Court had to
determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No

religious test shall be required for the exercise of civil or political
rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous
scrutiny into the origins and development of the religion clauses
in the United States (U.S.) and the Philippines, we held that in
resolving claims involving religious freedom (1) benevolent
neutrality or accommodation, whether mandatory or permissive, is
the spirit, intent and framework underlying the religion clauses in
our Constitution; and (2) in deciding respondent’s plea of
exemption based on the Free Exercise Clause (from the law with
which she is administratively charged), it is the compelling state
interest test, the strictest test, which must be applied. 14
Notwithstanding the above rulings, the Court could not, at that
time, rule definitively on the ultimate issue of whether respondent
was to be held administratively liable for there was need to give
the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to
religious freedom. Thus, in the decision dated August 4, 2003, we
remanded the complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondent’s claimed
religious belief and practice;
(b) present evidence on the state’s "compelling interest" to
override respondent’s religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is
the least restrictive to respondent’s religious freedom. 15
It bears stressing, therefore, that the residual issues of the case
pertained NOT TO WHAT APPROACH THIS COURT
SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled
upon prior to the remand, and constitute "the law of the case"
insofar as they resolved the issues of which framework and test
are to be applied in this case, and no motion for its reconsideration
having been filed.16 The only task that the Court is left to do is to
determine whether the evidence adduced by the State proves its
more compelling interest. This issue involves a pure question of
fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in attacking the
ruling of this case interpreting the religious clauses of the
Constitution, made more than two years ago, is misplaced to say
the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this
ruling, the same has attained finality and constitutes the law of the
case. Any attempt to reopen this final ruling constitutes a crass
contravention of elementary rules of procedure. Worse, insofar as
it would overturn the parties’ right to rely upon our interpretation
which has long attained finality, it also runs counter to substantive
due process.
Be that as it may, even assuming that there were no procedural
and substantive infirmities in Mr. Justice Carpio’s belated
attempts to disturb settled issues, and that he had timely presented
his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of
Old World antecedents of the religion clauses, because "one
cannot understand, much less intelligently criticize the approaches
of the courts and the political branches to religious freedom in the
recent past in the United States without a deep appreciation of the
roots of these controversies in the ancient and medieval world and
in the American experience."17 We delved into the conception of
religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to
God.18 Then, religion developed on its own and became superior
to the state,19 its subordinate,20 and even becoming an engine of
state policy.21
We ascertained two salient features in the review of religious
history: First, with minor exceptions, the history of church-state
relationships was characterized by persecution, oppression,
hatred, bloodshed, and war, all in the name of the God of Love
and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion
by secular powers to promote secular purposes and policies, and
the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by
ambitious princes and emperors in exchange for religion’s
invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional
democracy and in human history. 22
Strictly speaking, the American experiment of freedom and
separation was not translated in the First Amendment. That
experiment had been launched four years earlier, when the
founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison
66
said, the national government had no "jurisdiction" over religion
or any "shadow of right to intermeddle" with it. 23
The omission of an express guaranty of religious freedom and
other natural rights, however, nearly prevented the ratification of
the Constitution. The restriction had to be made explicit with the
adoption of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment did not take
away or abridge any power of the national government; its intent
was to make express the absence of power.24 It commands, in two
parts (with the first part usually referred to as the Establishment
Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted,
were not designed to serve contradictory purposes. They have a
single goal—to promote freedom of individual religious beliefs
and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the
Establishment Clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In
other words, 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. 26
In sum, a review of the Old World antecedents of religion shows
the movement of establishment of religion as an engine to
promote state interests, to the principle of non-establishment to
allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses’ interpretation and
construction in the United States, not because we are bound by
their interpretation, but because the U.S. religion clauses are the
precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be
discussed later on.
At the outset, it is worth noting that American jurisprudence in
this area has been volatile and fraught with inconsistencies
whether within a Court decision or across decisions. For while
there is widespread agreement regarding the value of the First
Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit
and forbid. No agreement has been reached by those who have
studied the religion clauses as regards its exact meaning and the

paucity of records in the U.S. Congress renders it difficult to
ascertain its meaning.27
U.S. history has produced two identifiably different, even
opposing, strains of jurisprudence on the religion clauses. First is
the standard of separation, which may take the form of either (a)
strict separation or (b) the tamer version of strict neutrality or
separation, or what Mr. Justice Carpio refers to as the second
theory of governmental neutrality. Although the latter form is not
as hostile to religion as the former, both are anchored on the
Jeffersonian premise that a "wall of separation" must exist
between the state and the Church to protect the state from the
church.28 Both protect the principle of church-state separation with
a rigid reading of the principle. On the other hand, the second
standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of separation is meant to
protect the church from the state. A brief review of each theory is
in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause
was meant to protect the state from the church, and the state’s
hostility towards religion allows no interaction between the two.
According to this Jeffersonian view, an absolute barrier to formal
interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on
believers.29 Only the complete separation of religion from politics
would eliminate the formal influence of religious institutions and
provide for a free choice among political views, thus a strict "wall
of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply
embedded in American history and contemporary practice that
enormous amounts of aid, both direct and indirect, flow to religion
from government in return for huge amounts of mostly indirect
aid from religion.31 For example, less than twenty-four hours after
Congress adopted the First Amendment’s prohibition on laws
respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential
proclamation declaring a national day of Thanksgiving and
Prayer.32 Thus, strict separationists are caught in an awkward
position of claiming a constitutional principle that has never
existed and is never likely to.33
The tamer version of the strict separationist view, the strict
neutrality or separationist view, (or, the governmental neutrality
theory) finds basis in Everson v. Board of Education,34 where the
Court declared that Jefferson’s "wall of separation" encapsulated
the meaning of the First Amendment. However, unlike the strict
separationists, the strict neutrality view believes that the "wall of
separation" does not require the state to be their adversary. Rather,
the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so
as to handicap religions than it is to favor them."35 The strict
neutrality approach is not hostile to religion, but it is strict in
holding that religion may not be used as a basis for classification
for purposes of governmental action, whether the action confers
rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit,
much less require, accommodation of secular programs to
religious belief.36
The problem with the strict neutrality approach, however, is if
applied in interpreting the Establishment Clause, it could lead to a
de facto voiding of religious expression in the Free Exercise
Clause. As pointed out by Justice Goldberg in his concurring
opinion in Abington School District v. Schempp,37 strict neutrality
could lead to "a brooding and pervasive devotion to the secular
and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.38 Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible
with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say,
of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the [U.S.]
Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications. 39
Thus, the dilemma of the separationist approach, whether in the
form of strict separation or strict neutrality, is that while the
Jeffersonian wall of separation "captures the spirit of the
American ideal of church-state separation," in real life, church and
state are not and cannot be totally separate. This is all the more
true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement
and activity, resulting in the intersection of government and
religion at many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is
premised on a different view of the "wall of separation,"
associated with Williams, founder of the Rhode Island colony.
Unlike the Jeffersonian wall that is meant to protect the state from
67
the church, the wall is meant to protect the church from the
state.41 This doctrine was expressed in Zorach v. Clauson,42 which
held, viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there
shall be no concert or union or dependency one or the other. That
is the common sense of the matter. Otherwise, the state and
religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths- these and all other references to the
Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: "God save the United States
and this Honorable Court." xxx
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one
chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its
weight against efforts to widen their effective scope of religious
influence. 43
Benevolent neutrality recognizes that religion plays an important
role in the public life of the United States as shown by many
traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription
of "In God We Trust" on American currency; the recognition of
America as "one nation under God" in the official pledge of
allegiance to the flag; the Supreme Court’s time-honored practice
of opening oral argument with the invocation "God save the
United States and this Honorable Court"; and the practice of
Congress and every state legislature of paying a chaplain, usually
of a particular Protestant denomination, to lead representatives in
prayer. These practices clearly show the preference for one
theological viewpoint—the existence of and potential for

intervention by a god—over the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the
building of low-cost housing and in other forms of poor relief, in
the treatment of alcoholism and drug addiction, in foreign aid and
other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also
abound, including, but not limited to the U.S. Court declaring the
following acts as constitutional: a state hiring a Presbyterian
minister to lead the legislature in daily prayers, 45 or requiring
employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge; 46 for
government to give money to religiously-affiliated organizations
to teach adolescents about proper sexual behavior;47 or to provide
religious school pupils with books;48 or bus rides to religious
schools;49 or with cash to pay for state-mandated standardized
tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights
embodied in the Religion clauses are invoked in relation to
governmental action, almost invariably in the form of legislative
acts.
Generally speaking, a legislative act that purposely aids or inhibits
religion will be challenged as unconstitutional, either because it
violates the Free Exercise Clause or the Establishment Clause or
both. This is true whether one subscribes to the separationist
approach or the benevolent neutrality or accommodationist
approach.
But the more difficult religion cases involve legislative acts which
have a secular purpose and general applicability, but may
incidentally or inadvertently aid or burden religious exercise.
Though the government action is not religiously motivated, these
laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to
these governmental actions, accommodation of religion may be
allowed, not to promote the government’s favored form of
religion, but to allow individuals and groups to exercise their
religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account…to exempt, when
possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise
thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may
flourish."51 In the ideal world, the legislature would recognize the
religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and
burdened may turn to the courts for protection.52
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 courts.53 Most of the free exercise
claims brought to the U.S. Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome"
effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of
accommodation in the U.S. blossomed in the case of Sherbert v.
Verner,55 which ruled that state regulation that indirectly restrains
or punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.56 According to Sherbert,
when a law of general application infringes religious exercise,
albeit incidentally, the state interest sought to be promoted must
be so paramount and compelling as to override the free exercise
claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious
grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the decision
of the South Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional right of free exercise, or because any
incidental burden on the free exercise of appellant’s religion may
be justified by a "compelling state interest in the regulation of a
subject within the State’s constitutional power to
regulate. . . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic
that it is not sufficient to merely show a rational relationship of
the substantial infringement to the religious right and a colorable
state interest. "(I)n this highly sensitive constitutional area, ‘[o]nly
the gravest abuses, endangering paramount interests, give
occasion for permissible limitation.’"58 The Court found that there
68
was no such compelling state interest to override Sherbert’s
religious liberty. It added that even if the state could show that
Sherbert’s exemption would pose serious detrimental effects to
the unemployment compensation fund and scheduling of work, it
was incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge
this burden. The Court thus carved out for Sherbert an exemption
from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert’s benefits
would force her to choose between receiving benefits and
following her religion. This choice placed "the same kind of
burden upon the free exercise of religion as would a fine imposed
against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government
action burdens, even inadvertently, a sincerely held religious
belief or practice, the state must justify the burden by
demonstrating that the law embodies a compelling interest, that no
less restrictive alternative exists, and that a religious exemption
would impair the state’s ability to effectuate its compelling
interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the
highest level of judicial scrutiny. After Sherbert, this strict
scrutiny balancing test resulted in court-mandated religious
exemptions from facially-neutral laws of general application
whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court
again ruled that religious exemption was in order, notwithstanding
that the law of general application had a criminal penalty. Using
heightened scrutiny, the Court overturned the conviction of Amish
parents for violating Wisconsin compulsory school-attendance
laws. The Court, in effect, granted exemption from a neutral,
criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest
of sufficient magnitude to override the interest claiming protection

under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free
exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against
the establishment of any religion. The values underlying these two
provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is
that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded
conduct is always outside the protection of the Free Exercise
Clause. It is true that activities of individuals, even when
religiously based, are often subject to regulation by the States in
the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously
grounded conduct must often be subject to the broad police power
of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations
of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in
refusing to send their children to the public high school; in this
context belief and action cannot be neatly confined in logic-tight
compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines:
(a) free exercise clause claims were subject to heightened scrutiny
or compelling interest test if government substantially burdened
the exercise of religion; (b) heightened scrutiny or compelling
interest test governed cases where the burden was direct, i.e., the
exercise of religion triggered a criminal or civil penalty, as well as
cases where the burden was indirect, i.e., the exercise of religion
resulted in the forfeiture of a government benefit;63 and (c) the
Court could carve out accommodations or exemptions from a
facially neutral law of general application, whether general or
criminal.
The Sherbert-Yoder doctrine had five main components. First,
action was protected—conduct beyond speech, press, or worship
was included in the shelter of freedom of religion. Neither
Sherbert’s refusal to work on the Sabbath nor the Amish parents’
refusal to let their children attend ninth and tenth grades can be
classified as conduct protected by the other clauses of the First
Amendment. Second, indirect impositions on religious conduct,
such as the denial of twenty-six weeks of unemployment
insurance benefits to Adel Sherbert, as well as direct restraints,
such as the criminal prohibition at issue in Yoder, were
prohibited. Third, as the language in the two cases indicate, the
protection granted was extensive. Only extremely strong
governmental interests justified impingement on religious
conduct, as the absolute language of the test of the Free Exercise
Clause suggests. 64
Fourth, the strong language was backed by a requirement that the
government provide proof of the important interest at stake and of
the dangers to that interest presented by the religious conduct at
issue. Fifth, in determining the injury to the government’s interest,
a court was required to focus on the effect that exempting
religious claimants from the regulation would have, rather than on
the value of the regulation in general. Thus, injury to
governmental interest had to be measured at the margin: assuming
the law still applied to all others, what would be the effect of
exempting the religious claimant in this case and other similarly
situated religious claimants in the future? Together, the fourth and
fifth elements required that facts, rather than speculation, had to
be presented concerning how the government’s interest would be
harmed by excepting religious conduct from the law being
challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise
jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests. The fourth and the fifth
elements prevented the likelihood of exaggeration of the weight
on the governmental interest side of the balance, by not allowing
speculation about the effects of a decision adverse to those
interests nor accepting that those interests would be defined at a
higher level of generality than the constitutional interests on the
other side of the balance. 66
Thus, the strict scrutiny and compelling state interest test
significantly increased the degree of protection afforded to
religiously motivated conduct. While not affording absolute
immunity to religious activity, a compelling secular justification
was necessary to uphold public policies that collided with
religious practices. Although the members of the U.S. Court often
disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion. 67 Most
scholars and courts agreed that under Sherbert and Yoder, the
Free Exercise Clause provided individuals some form of
heightened scrutiny protection, if not always a compelling interest
one.68 The 1990 case of Employment Division, Oregon
69
Department of Human Resources v. Smith,69 drastically changed
all that.
Smith involved a challenge by Native Americans to an Oregon
law prohibiting use of peyote, a hallucinogenic substance.
Specifically, individuals challenged the state’s determination that
their religious use of peyote, which resulted in their dismissal
from employment, was misconduct disqualifying them from
receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free
exercise of religion required an exemption from an otherwise
valid law. Scalia said that "[w]e have never held that an
individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our
free exercise jurisprudence contradicts that proposition." 71 Scalia
thus declared "that the right of free exercise does not relieve an
individual of the obligation to comply with a ‘valid and neutral
law of general applicability of the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or
proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases where free
exercise challenges had been upheld—such as Cantwell,
Murdock, Follet, Pierce, and Yoder—and said that none involved
the free exercise clause claims alone. All involved "the Free
Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press, or the
right of parents to direct the education of their children." 73 The
Court said that Smith was distinguishable because it did not
involve such a "hybrid situation," but was a free exercise claim
"unconnected with any communicative activity or parental
right." 74
Moreover, the Court said that the Sherbert line of cases applied
only in the context of the denial of unemployment benefits; it did
not create a basis for an exemption from criminal laws. Scalia
wrote that "[e]ven if we were inclined to breathe into Sherbert
some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally
applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for
challenges to neutral laws of general applicability that burden
religion. Justice Scalia said that "[p]recisely because ‘we are a
cosmopolitan nation made up of people of almost conceivable
religious preference,’ and precisely because we value and protect
that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every

regulation of conduct that does not protect an interest of the
highest order." The Court said that those seeking religious
exemptions from laws should look to the democratic process for
protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or
heightened scrutiny and the compelling justification approach
were abandoned for evaluating laws burdening religion; neutral
laws of general applicability only have to meet the rational basis
test, no matter how much they burden religion. 77
Justice O’Connor wrote a concurring opinion sharply criticizing
the rejection of the compelling state interest test, asserting that
"(t)he compelling state interest test effectuates the First
Amendment’s command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court
will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government
interest ‘of the highest order.’"78 She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment’s mandate of preserving
religious liberty to the fullest extent possible in a pluralistic
society." 79
Justice O’Connor also disagreed with the majority’s description of
prior cases and especially its leaving the protection of minority
religions to the political process. She said that, "First Amendment
was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be
viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by
Justices Brennan and Marshall. The dissenting Justices agreed
with Justice O’Connor that the majority had mischaracterized
precedents, such as in describing Yoder as a "hybrid" case rather
than as one under the free exercise clause. The dissent also argued
that strict scrutiny should be used in evaluating government laws
burdening religion. 81
82
Criticism of Smith was intense and widespread.  Academics,
Justices, and a bipartisan majority of Congress noisily denounced
the decision.83 Smith has the rather unusual distinction of being
one case that is almost universally despised (and this is not too
strong a word) by both the liberals and conservatives. 84 Liberals
chasten the Court for its hostility to minority faiths which, in light
of Smith’s general applicability rule, will allegedly suffer at the
hands of the majority faith whether through outright hostility or
neglect. Conservatives bemoan the decision as an assault on
religious belief leaving religion, more than ever, subject to the
caprice of an ever more secular nation that is increasingly hostile
to religious belief as an oppressive and archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and
has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.86 First, the First amendment was intended
to protect minority religions from the tyranny of the religious and
political majority. 87 Critics of Smith have worried about religious
minorities, who can suffer disproportionately from laws that enact
majoritarian mores.88 Smith, in effect would allow discriminating
in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,89 contrary to the
original theory of the First Amendment.90 Undeniably, claims for
judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped
out their judicial recourse for exemption.91 Second, Smith leaves
too much leeway for pervasive welfare-state regulation to burden
religion while satisfying neutrality. After all, laws not aimed at
religion can hinder observance just as effectively as those that
target religion.92 Government impairment of religious liberty
would most often be of the inadvertent kind as in Smith
considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost
meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine
simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when
there are alternative approaches for the state to effectively pursue
its objective without serious inadvertent impact on religion. 95
At bottom, the Court’s ultimate concern in Smith appeared to be
two-fold: (1) the difficulty in defining and limiting the term
"religion" in today’s pluralistic society, and (2) the belief that
courts have no business determining the significance of an
individual’s religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise
Clause must protect everything or it must protect virtually
nothing. As a result, the Court perceives its only viable options
are to leave free exercise protection to the political process or to
allow a "system in which each conscience is a law unto
itself." 96 The Court’s characterization of its choices have been
soundly rejected as false, viz:
If one accepts the Court’s assumption that these are the only two
viable options, then admittedly, the Court has a stronger
argument. But the Free Exercise Clause cannot be summarily
dismissed as too difficult to apply and this should not be applied
at all. The Constitution does not give the judiciary the option of
70
simply refusing to interpret its provisions. The First Amendment
dictates that free exercise of "religion" must be protected.
Accordingly, the Constitution compels the Court to struggle with
the contours of what constitutes "religion." There is no
constitutional opt-out provision for constitutional words that are
difficult to apply.
Nor does the Constitution give the Court the option of simply
ignoring constitutional mandates. A large area of middle ground
exists between the Court’s two opposing alternatives for free
exercise jurisprudence. Unfortunately, this middle ground requires
the Court to tackle difficult issues such as defining religion and
possibly evaluating the significance of a religious belief against
the importance of a specific law. The Court describes the results
of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of
religious practice," and then dismisses it as a "parade of horribles"
that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this
"parade of horribles." Surely not religious individuals; they would
undoubtedly prefer their religious beliefs to be probed for
sincerity and significance rather than acquiesce to the Court’s
approach of simply refusing to grant any constitutional
significance to their beliefs at all. If the Court is concerned about
requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It
is the lawmakers who have sought to prevent the Court from
dismantling the Free Exercise Clause through such legislation as
the [Religious Freedom Restoration Act of 1993], and in any case,
the Court should not be overly concerned about hurting
legislature’s feelings by requiring their laws to conform to
constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say
that requiring the judiciary to perform its appointed role as
constitutional interpreters is a burden no judge should be expected
to fulfill.97
Parenthetically, Smith’s characterization that the U.S. Court has
"never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that
the state is free to regulate"—an assertion which Mr. Justice
Carpio adopted unequivocally in his dissent—has been sharply
criticized even implicitly by its supporters, as blatantly untrue.
Scholars who supported Smith frequently did not do so by
opposing the arguments that the Court was wrong as a matter of
original meaning [of the religion clauses] or that the decision
conflicted with precedent [i.e. the Smith decision made shocking
use of precedent]—those points were often conceded. 98

To justify its perversion of precedent, the Smith Court attempted
to distinguish the exemption made in Yoder, by asserting that
these were premised on two constitutional rights combined—the
right of parents to direct the education of their children and the
right of free exercise of religion. Under the Court’s opinion in
Smith, the right of free exercise of religion standing alone would
not allow Amish parents to disregard the compulsory school
attendance law, and under the Court’s opinion in Yoder, parents
whose objection to the law was not religious would also have to
obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if
combined?99 As for Sherbert, the Smith Court attempted to limit
its doctrine as applicable only to denials of unemployment
compensation benefits where the religiously-compelled conduct
that leads to job loss is not a violation of criminal law. And yet,
this is precisely why the rejection of Sherbert was so damaging in
its effect: the religious person was more likely to be entitled to
constitutional protection when forced to choose between religious
conscience and going to jail than when forced to choose between
religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction
especially from the religious community, and commentaries
insisted that the Court was allowing the Free Exercise Clause to
disappear.101 So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993.102 The RFRA was adopted to negate the Smith
test and require strict scrutiny for free exercise claims. Indeed, the
findings section of the Act notes that Smith "virtually eliminated
the requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion." 103 The Act
declares that its purpose is to restore the compelling interest test
as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to
guarantee its application in all cases where free exercise of
religion is substantially burdened; and to provide a claim of
defense to a person whose religious exercise is substantially
burdened by government.104 The RFRA thus sought to overrule
Smith and make strict scrutiny the test for all free exercise clause
claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court
declared the RFRA unconstitutional, ruling that Congress had
exceeded its power under the Fourteenth Amendment in enacting
the law. The Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is not "enforcing"
when it creates new constitutional rights or expands the scope of
rights. 107
City of Boerne also drew public backlash as the U.S. Supreme
Court was accused of lack of judicial respect for the constitutional
decision-making by a coordinate branch of government. In Smith,
Justice Scalia wrote:
"Values that are protected against governmental interference
through enshrinement in the Bill of Rights are not thereby
banished from the political process. Just as society believes in the
negative protection accorded to the press by the First Amendment
is likely to enact laws that affirmatively foster the dissemination
of the printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of
the solicitude of a nearly unanimous Congress. Contrary to the
Court’s characterization of the RFRA as a kind of usurpation of
the judicial power to say what the Constitution means, the law
offered no definition of Free Exercise, and on its face appeared to
be a procedural measure establishing a standard of proof and
allocating the duty of meeting it. In effect, the Court ruled that
Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress.
The power of Congress to act towards the states in matters of
religion arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly
recognizing the power of legislature to give accommodations, is in
effect contrary to the benevolent neutrality or accommodation
approach. Moreover, if we consider the history of the
incorporation of the religion clauses in the U.S., the decision in
Smith is grossly inconsistent with the importance placed by the
framers on religious faith. Smith is dangerous precedent because it
subordinates fundamental rights of religious belief and practice to
all neutral, general legislation. Sherbert recognized the need to
protect religious exercise in light of the massive increase in the
size of government, the concerns within its reach, and the number
of laws administered by it. However, Smith abandons the
protection of religious exercise at a time when the scope and reach
of government has never been greater. It has been pointed out that
Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force
conformity on religious minorities whose practice irritate or
frighten an intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause.
Smith left religious freedom for many in the hands of the political
process, exactly where it would be if the religion clauses did not
exist in the Bill of Rights. Like most protections found in the Bill
of Rights, the religion clauses of the First Amendment are most
important to those who cannot prevail in the political process. The
71
Court in Smith ignores the fact that the protections found in the
Bill of Rights were deemed too important to leave to the political
process. Because mainstream religions generally have been
successful in protecting their interests through the political
process, it is the non-mainstream religions that are adversely
affected by Smith. In short, the U.S. Supreme Court has made it
clear to such religions that they should not look to the First
Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of
accommodation: (a) those which are found to be constitutionally
compelled, i.e., required by the Free Exercise Clause; (b) those
which are discretionary or legislative, i.e., not required by the Free
Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit. 111
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. This accommodation
occurs when all three conditions of the compelling interest test are
met, i.e, a statute or government action has burdened claimant’s
free exercise of religion, and there is no doubt as to the sincerity
of the religious belief; the state has failed to demonstrate a
particularly important or compelling governmental goal in
preventing an exemption; and that the state has failed to
demonstrate that it used the least restrictive means. In these cases,
the Court finds that the injury to religious conscience is so great
and the advancement of public purposes is incomparable that only
indifference or hostility could explain a refusal to make
exemptions. Thus, if the state’s objective could be served as well
or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, the Court must
grant the exemption. The Yoder case is an example where the
Court held that the state must accommodate the religious beliefs
of the Amish who objected to enrolling their children in high
school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert. 112
In permissive accommodation, the Court finds that the State may,
but is not required to, accommodate religious interests. The U.S.
Walz case illustrates this situation where the U.S. Supreme Court
upheld the constitutionality of tax exemption given by New York
to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise
Clause."113 Other examples are Zorach v. Clauson,114 allowing

released time in public schools and Marsh v.
Chambers,115 allowing payment of legislative chaplains from
public funds. Parenthetically, the Court in Smith has ruled that
this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory
accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free
exercise clause, it results to a prohibited accommodation. 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. 116 An
example where accommodation was prohibited is McCollum v.
Board of Education,117 where the Court ruled against optional
religious instruction in the public school premises.118
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.
Under the benevolent-neutrality theory, the principle underlying
the First Amendment is that freedom to carry out one’s duties to a
Supreme Being is an inalienable right, not one dependent on the
grace of legislature. 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.
Considering that laws nowadays are rarely enacted specifically to
disable religious belief or practice, free exercise disputes arise
commonly when a law that is religiously neutral and generally
applicable on its face is argued to prevent or burden what
someone’s religious faith requires, or alternatively, requires
someone to undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious exemptions
from otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because
"[t]he compelling interest test reflects the First Amendment’s
mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society.120Underlying 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. 121
In its application, the compelling state interest test follows a three-
step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits
the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to
the accomplishment of some important (or ‘compelling’) secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant’s beliefs
must be ‘sincere’, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the
claimant’s religious denomination. ‘Only beliefs rooted in religion
are protected by the Free Exercise Clause’; secular beliefs,
however sincere and conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the
religion clauses using either the separationist approach, or the
benevolent neutrality approach. The benevolent neutrality
approach has also further been split by the view that the First
Amendment requires accommodation, or that it only allows
permissible legislative accommodations. The current prevailing
view as pronounced in Smith, however, is that that there are no
required accommodation under the First Amendment, although it
permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution,
Jurisprudence and Practice
a. US Constitution and jurisprudence vis-à-vis Philippine
Constitution
By juxtaposing the American Constitution and jurisprudence
against that of the Philippines, it is immediately clear that one
cannot simply conclude that we have adopted—lock, stock and
barrel—the religion clauses as embodied in the First Amendment,
and therefore, the U.S. Court’s interpretation of the same. Unlike
in the U.S. where legislative exemptions of religion had to be
upheld by the U.S. Supreme Court as constituting permissive
accommodations, similar exemptions for religion are mandatory
accommodations under our own constitutions. Thus, our 1935,
1973 and 1987 Constitutions contain provisions on tax exemption
of church property,123 salary of religious officers in government
institutions,124 and optional religious instruction.125 Our own
preamble also invokes the aid of a divine being. 126 These
constitutional provisions are wholly ours and have no counterpart
in the U.S. Constitution or its amendments. They all reveal
without doubt that the Filipino people, in adopting these
constitutions, manifested their adherence to the benevolent
neutrality approach that requires accommodations in interpreting
the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003
ponencia was erroneous insofar as it asserted that the 1935
Constitution incorporates the Walz ruling as this case was decided
72
subsequent to the 1935 Constitution is a misreading of the
ponencia. What the ponencia pointed out was that even as early as
1935, or more than three decades before the U.S. Court could
validate the exemption in Walz as a form or permissible
accommodation, we have already incorporated the same in our
Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitution’s
departure from the U.S. Constitution, insofar as religious
accommodations are concerned. It is indubitable that benevolent
neutrality-accommodation, whether mandatory or permissive, is
the spirit, intent and framework underlying the Philippine
Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows
that these clauses were largely adopted from the First Amendment
of the U.S. Constitution xxxx Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence [i.e.,
separation and benevolent neutrality]. One might simply conclude
that the Philippine Constitutions and jurisprudence also inherited
the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes
before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history
of the First Amendment as narrated by the Court in Everson
supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion
clauses’ history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently
burdens his religious exercise, he faces an almost insurmountable
wall in convincing the Court that the wall of separation would not
be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the
1987, 1973 and 1935 Constitutions as shown by other provisions
on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions
should be reconciled and harmonized in a manner that will give to
all of them full force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution.129 [citations
omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the
U.S. Court’s interpretation of the religion clauses to effectively
deny accommodations on the sole basis that the law in question is

neutral and of general application. For even if it were true that "an
unbroken line of U.S. Supreme Court decisions" has never held
that "an individual’s religious beliefs [do not] excuse him from
compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion.
Philippine jurisprudence shows that the Court has allowed
exemptions from a law of general application, in effect,
interpreting our religion clauses to cover both mandatory and
permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila, 131 the
Court granted to plaintiff exemption from a law of general
application based on the Free Exercise Clause. In this case,
plaintiff was required by an ordinance 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." Although 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, it also ruled
that applying the ordinance to plaintiff and 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." The decision
states in part, 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. (citations
omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v.
The Division Superintendent of Schools.132 The 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 religious freedom issue, a unanimous Court
overturned an earlier ruling denying such exemption, 133 using the
"grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the
exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and
duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from
a law of general application, on the strength directly of the Free
Exercise Clause.
We also have jurisprudence that supports permissive
accommodation. The case of Victoriano v. Elizalde Rope Workers
Union135 is an example of the application of Mr. Justice Carpio’s
theory of permissive accommodation, where religious exemption
is granted by a legislative act. In Victoriano, the constitutionality
of Republic Act No. 3350 was questioned. The said R.A. exempt
employees from the application and coverage of a closed shop
agreement—mandated in another law—based on religious
objections. A unanimous Court upheld the constitutionality of the
law, holding 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." Interestingly, the secular
purpose of the challenged law which the Court upheld was the
advancement of "the constitutional right to the free exercise of
religion."136
Having established that benevolent neutrality-accommodation is
the framework by which free exercise cases must be decided, the
next question then turned to the test that should be used in
ascertaining the limits of the exercise of religious freedom. In our
Decision dated August 4, 2003, we reviewed our jurisprudence,
and ruled that in cases involving purely conduct based on
religious belief, as in the case at bar, the compelling state interest
test, is proper, viz:
Philippine jurisprudence articulates several tests to determine
these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear
and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the
goal of the law. The case also used, albeit inappropriately, the
73
"compelling state interest" test. After Victoriano, German went
back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present
danger" test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible
Society, Ebralinag and Iglesia ni Cristo where the "clear and
present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct
has different effects on the state’s interests: some effects may be
immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights", in the words
of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed. In determining
which shall prevail between the state’s interest and religious
liberty, reasonableness shall be the guide. The "compelling state

interest" serves the purpose of revering religious liberty while at
the same time affording protection to the paramount interests of
the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without
which, religious liberty will not be preserved. 137 (citations
omitted)
At this point, we take note of Mr. Justice Carpio’s dissent, which,
while loosely disputing the applicability of the benevolent
neutrality framework and compelling state interest test, states that
"[i]t is true that a test needs to be applied by the Court in
determining the validity of a free exercise claim of exemption as
made here by Escritor." This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation
approach. If it were true, indeed, that the religion clauses do not
require accommodations based on the free exercise of religion,
then there would be no need for a test to determine the validity of
a free exercise claim, as any and all claims for religious
exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction
between permissive accommodation and mandatory
accommodation is more critically important in analyzing free
exercise exemption claims because it forces the Court to confront
how far it can validly set the limits of religious liberty under the
Free Exercise Clause, rather than presenting the separation theory
and accommodation theory as opposite concepts, and then
rejecting relevant and instructive American jurisprudence (such as
the Smith case) just because it does not espouse the theory
selected." He then asserts that the Smith doctrine cannot be
dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because
the doctrine in Smith is that only legislative accommodations are
allowed under the Free Exercise Clause, it cannot be used in
determining a claim of religion exemption directly anchored on
the Free Exercise Clause. Thus, even assuming that the Smith
doctrine actually espouses the theory of accommodation or
benevolent neutrality, the accommodation is limited to the
permissive, or legislative exemptions. It, therefore, cannot be used
as a test in determining the claims of religious exemptions directly
under the Free Exercise Clause because Smith does not recognize
such exemption. Moreover, Mr. Justice Carpio’s advocacy of the
Smith doctrine would effectively render the Free Exercise
protection—a fundamental right under our Constitution—
nugatory because he would deny its status as an independent
source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a
three-step process. We explained this process in detail, by
showing the questions which must be answered in each step, viz:
…First, "[H]as the statute or government action created a burden
on the free exercise of religion?" The courts often look into the
sincerity of the religious belief, but without inquiring into the
truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimant’s belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. xxx
Second, the court asks: "[I]s there a sufficiently compelling state
interest to justify this infringement of religious liberty?" In this
step, the government has to establish that its purposes are
legitimate for the state and that they are compelling. Government
must do more than assert the objectives at risk if exemption is
given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
Third, the court asks: "[H]as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?" The analysis requires the state to
show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on
religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could
result to three situations of accommodation: First, mandatory
accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second,
if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation
results. Finally, if the Court finds that that establishment concerns
prevail over potential accommodation interests, then it must rule
that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio’s dissent is
that only permissive accommodation can carve out an exemption
from a law of general application. He posits the view that the law
should prevail in the absence of a legislative exemption, and the
Court cannot make the accommodation or exemption.
Mr. Justice Carpio’s position is clearly not supported by
Philippine jurisprudence. The cases of American Bible Society,
Ebralinag, and Victoriano demonstrate that our application of the
doctrine of benevolent neutrality-accommodation covers not only
74
the grant of permissive, or legislative accommodations, but also
mandatory accommodations. Thus, an exemption from a law of
general application is possible, even if anchored directly on an
invocation of the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no Philippine case
as yet wherein the Court granted an accommodation/exemption to
a religious act from the application of general penal laws,
permissive accommodation based on religious freedom has been
granted with respect to one of the crimes penalized under the
Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court
expressly denied to Mormons an exemption from a general federal
law criminalizing polygamy, even if it was proven that the
practice constituted a religious duty under their faith. 140 In
contradistinction, Philippine law accommodates the same practice
among Moslems, through a legislative act. For while the act of
marrying more than one still constitutes bigamy under the Revised
Penal Code, Article 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that
the penal laws relative to the crime of bigamy "shall not apply to a
person married…under Muslim law." Thus, by legislative action,
accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice
Carpio recognized this accommodation when, in his dissent in our
Decision dated August 4, 2003 and citing Sulu Islamic
Association of Masjid Lambayong v. Malik,141 he stated that a
Muslim Judge "is not criminally liable for bigamy because Shari’a
law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio’s
"permissive-accommodation only" advocacy in this jurisdiction
becomes manifest. Having anchored his argument on the Smith
doctrine that "the guaranty of religious liberty as embodied in the
Free Exercise Clause does not require the grant of exemptions
from generally applicable laws to individuals whose religious
practice conflict with those laws," his theory is infirmed by the
showing that the benevolent neutrality approach which allows for
both mandatory and permissive accommodations was
unequivocally adopted by our framers in the Philippine
Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive
accommodation-only" stance is the antithesis to the notion that
religion clauses, like the other fundamental liberties found in the
Bill or Rights, is a preferred right and an independent source of
right.

What Mr. Justice Carpio is left with is the argument, based on
Smith, that the test in Sherbert is not applicable when the law in
question is a generally applicable criminal law. Stated differently,
even if Mr. Justice Carpio conceded that there is no question that
in the Philippine context, accommodations are made, the question
remains as to how far the exemptions will be made and who
would make these exemptions.
On this point, two things must be clarified: first, in relation to
criminal statutes, only the question of mandatory accommodation
is uncertain, for Philippine law and jurisprudence have, in fact,
allowed legislative accommodation. Second, the power of the
Courts to grant exemptions in general (i.e., finding that the Free
Exercise Clause required the accommodation, or mandatory
accommodations) has already been decided, not just once, but
twice by the Court. Thus, the crux of the matter is whether this
Court can make exemptions as in Ebralinag and the American
Bible Society, in cases involving criminal laws of general
application.
We hold that the Constitution itself mandates the Court to do so
for the following reasons.
First, as previously discussed, while the U.S. religion clauses are
the precursors to the Philippine religion clauses, the benevolent
neutrality-accommodation approach in Philippine jurisdiction is
more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory,
including the notion of mandatory accommodations, was to
address the "inadvertent burdensome effect" that an otherwise
facially neutral law would have on religious exercise. Just because
the law is criminal in nature, therefore, should not bring it out of
the ambit of the Free Exercise Clause. As stated by Justice
O’Connor in her concurring opinion in Smith, "[t]here is nothing
talismanic about neutral laws of general applicability or general
criminal prohibitions, for laws neutral towards religion can coerce
a person to violate his religious conscience or intrude upon his
religious duties just as effectively as laws aimed at religion." 142
Third, there is wisdom in accommodation made by the Court as
this is the recourse of minority religions who are likewise
protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of
minority religions from the inevitable effects of majoritarianism,
which include ignorance and indifference and overt hostility to the
minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come
into conflict with the religious scruples of those holding different
world views, even in the absence of a deliberate intent to interfere
with religious practice. At times, this effect is unavoidable as a
practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that
only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the
need is brought to their attention, but this may not always be the
case when the religious practice is either unknown at the time of
enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have
an influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious
faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not
entirely an alien concept, nor will it be applied for the first time,
as an exemption of such nature, albeit by legislative act, has
already been granted to Moslem polygamy and the criminal law of
bigamy.
Finally, we must consider the language of the Religion Clauses
vis-à-vis the other fundamental rights in the Bill of Rights. It has
been noted that unlike other fundamental rights like the right to
life, liberty or property, the Religion Clauses are stated in absolute
terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free
speech is comparable in its absolute grant. Given the unequivocal
and unqualified grant couched in the language, the Court cannot
simply dismiss a claim of exemption based on the Free Exercise
Clause, solely on the premise that the law in question is a general
criminal law. 143 If the burden is great and the sincerity of the
religious belief is not in question, adherence to the benevolent
neutrality-accommodation approach require that the Court make
an individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the
benevolent neutrality-accommodation approach does not mean
that the Court ought to grant exemptions every time a free
exercise claim comes before it. This is an erroneous reading of the
framework which the dissent of Mr. Justice Carpio seems to
entertain. Although benevolent neutrality is the lens with which
the Court ought to view religion clause cases, the interest of the
state should also be afforded utmost protection. This is precisely
the purpose of the test—to draw the line between mandatory,
permissible and forbidden religious exercise. Thus, under the
framework, the Court cannot simply dismiss a claim under the
75
Free Exercise Clause because the conduct in question offends a
law or the orthodox view, as proposed by Mr. Justice Carpio, for
this precisely is the protection afforded by the religion clauses of
the Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the
degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal
towards which religious clause jurisprudence should be directed.
We here lay down the doctrine that in Philippine jurisdiction, we
adopt the benevolent neutrality approach not only because of its
merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal
towards which this approach is directed is the protection of
religious liberty "not only for a minority, however small- not only
for a majority, however large but for each of us" to the greatest
extent possible within flexible constitutional limits. 145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003
Decision. As mentioned, what remained to be resolved, upon
which remand was necessary, pertained to the final task of
subjecting this case to the careful application of the compelling
state interest test, i.e., determining whether respondent is entitled
to exemption, an issue which is essentially factual or evidentiary
in nature.
After the termination of further proceedings with the OCA, and
with the transmittal of the Hearing Officer’s report, 146along with
the evidence submitted by the OSG, this case is once again with
us, to resolve the penultimate question of whether respondent
should be found guilty of the administrative charge of "disgraceful
and immoral conduct." It is at this point then that we examine the
report and documents submitted by the hearing officer of this
case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties,
especially the government.
On the sincerity of religious belief, the Solicitor General
categorically concedes that the sincerity and centrality of
respondent’s claimed religious belief and practice are beyond
serious doubt.147 Thus, having previously established the
preliminary conditions required by the compelling state interest
test, i.e., that a law or government practice inhibits the free
exercise of respondent’s religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the

exemption based on the free exercise clause, the burden shifted to
the government to demonstrate that the law or practice justifies a
compelling secular objective and that it is the least restrictive
means of achieving that objective.
A look at the evidence that the OSG has presented fails to
demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override respondent’s fundamental
right to religious freedom. Neither did the government exert any
effort to show that the means it seeks to achieve its legitimate
state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their
purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003
Letter to the OSG of Bro. Raymond B. Leach, Legal
Representative of the Watch Tower Bible and Tract Society of the
Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the
sincerity and centrality of respondent’s claimed religious belief
and practice.
2. Exhibit "B-OSG" and submarking — The duly notarized
certification dated September 30, 2003 issued and signed by Bro.
Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of
respondent’s claimed religious belief and practice; and (2) to
prove that the Declaration of Pledging Faithfulness, being a purely
internal arrangement within the congregation of the Jehovah’s
Witnesses, cannot be a source of any legal protection for
respondent.
In its Memorandum-In-Intervention, the OSG contends that the
State has a compelling interest to override respondent’s claimed
religious belief and practice, in order to protect marriage and the
family as basic social institutions. The Solicitor General, quoting
the Constitution148 and the Family Code,149 argues that marriage
and the family are so crucial to the stability and peace of the
nation that the conjugal arrangement embraced in the Declaration
of Pledging Faithfulness should not be recognized or given effect,
as "it is utterly destructive of the avowed institutions of marriage
and the family for it reduces to a mockery these legally exalted
and socially significant institutions which in their purity demand
respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio
echoes the Solicitor General in so far as he asserts that the State
has a compelling interest in the preservation of marriage and the
family as basic social institutions, which is ultimately the public
policy underlying the criminal sanctions against concubinage and
bigamy. He also argues that in dismissing the administrative
complaint against respondent, "the majority opinion effectively
condones and accords a semblance of legitimacy to her patently
unlawful cohabitation..." and "facilitates the circumvention of the
Revised Penal Code." According to Mr. Justice Carpio, by
choosing to turn a blind eye to respondent’s criminal conduct, the
majority is in fact recognizing a practice, custom or agreement
that subverts marriage. He argues in a similar fashion as regards
the state’s interest in the sound administration of justice.
There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in
the sound administration of justice. Indeed, the provisions by
which respondent’s relationship is said to have impinged, e.g.,
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal
Code, and even the provisions on marriage and family in the Civil
Code and Family Code, all clearly demonstrate the State’s need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically
articulated as one of the fundamental rights in our Constitution. It
is a fundamental right that enjoys a preferred position in the
hierarchy of rights — "the most inalienable and sacred of human
rights," in the words of Jefferson. Hence, it is not enough to
contend that the state’s interest is important, because our
Constitution itself holds the right to religious freedom sacred. The
State must articulate in specific terms the state interest involved in
preventing the exemption, which must be compelling, for only the
gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would
be to emasculate the Free Exercise Clause as a source of right by
itself.
Thus, it is not the State’s broad interest in "protecting the
institutions of marriage and the family," or even "in the sound
administration of justice" that must be weighed against
respondent’s claim, but the State’s narrow interest in refusing to
make an exception for the cohabitation which respondent’s faith
finds moral. In other words, the government must do more than
assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined
if exemptions are granted.151 This, the Solicitor General failed to
do.
To paraphrase Justice Blackmun’s application of the compelling
interest test, the State’s interest in enforcing its prohibition, in
order to be sufficiently compelling to outweigh a free exercise
claim, cannot be merely abstract or symbolic. The State cannot
plausibly assert that unbending application of a criminal
76
prohibition is essential to fulfill any compelling interest, if it does
not, in fact, attempt to enforce that prohibition. In the case at bar,
the State has not evinced any concrete interest in enforcing the
concubinage or bigamy charges against respondent or her partner.
The State has never sought to prosecute respondent nor her
partner. The State’s asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally,
as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to
deny the exemption would effectively break up "an otherwise
ideal union of two individuals who have managed to stay together
as husband and wife [approximately twenty-five years]" and have
the effect of defeating the very substance of marriage and the
family.
The Solicitor General also argued against respondent’s religious
freedom on the basis of morality, i.e., that "the conjugal
arrangement of respondent and her live-in partner should not be
condoned because adulterous relationships are constantly frowned
upon by society";152 and "that State laws on marriage, which are
moral in nature, take clear precedence over the religious beliefs
and practices of any church, religious sect or denomination on
marriage. Verily, religious beliefs and practices should not be
permitted to override laws relating to public policy such as those
of marriage."153
The above arguments are mere reiterations of the arguments
raised by Mme. Justice Ynares-Santiago in her dissenting opinion
to our Decision dated August 4, 2003, which she offers again in
toto. These arguments have already been addressed in our
decision dated August 4, 2003.154 In said Decision, we noted that
Mme. Justice Ynares-Santiago’s dissenting opinion dwelt more on
the standards of morality, without categorically holding that
religious freedom is not in issue.155 We, therefore, went into a
discussion on morality, in order to show that:
(a) 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.156 Thus, when the law speaks of "immorality" in the
Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised
Penal Code,158 or "morals" in the New Civil Code,159 or "moral
character" in the Constitution,160 the distinction between public
and secular morality on the one hand, and religious morality, on
the other, should be kept in mind;161
(b) 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;162

(c) The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the
case at bar should be understood only in this realm where it has
authority.163
(d) Having distinguished between public and secular morality and
religious morality, the more difficult task is determining which
immoral acts under this public and secular morality fall under the
phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable. 164 Only
one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence
consider both immoral and illegal.165
(e) While there is no dispute that under settled jurisprudence,
respondent’s conduct constitutes "disgraceful and immoral
conduct," the case at bar involves the defense of religious
freedom, therefore none of the cases cited by Mme. Justice
Ynares-Santiago apply.166 There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a
member of the Jehovah’s Witnesses under the same circumstances
as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude
therefore that her conduct is likewise so "odious" and "barbaric"
as to be immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with
respect to charging respondent with conduct prejudicial to the best
interest of the service, and we reiterate that the dissent offends due
process as respondent was not given an opportunity to defend
herself against the charge of "conduct prejudicial to the best
interest of the service." Indeed, there is no evidence of the alleged
prejudice to the best interest of the service. 168
Mr. Justice Carpio’s slippery slope argument, on the other hand, is
non-sequitur. If the Court grants respondent exemption from the
laws which respondent Escritor has been charged to have violated,
the exemption would not apply to Catholics who have secured
church annulment of their marriage even without a final
annulment from a civil court. First, unlike Jehovah’s Witnesses,
the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovah’s Witnesses
have standards and procedures which must be followed before
cohabitation without marriage is given the blessing of the
congregation. This includes an investigative process whereby the
elders of the congregation verify the circumstances of the
declarants. Also, the Declaration is not a blanket authority to
cohabit without marriage because once all legal impediments for
the couple are lifted, the validity of the Declaration ceases, and
the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is
speculative. Nevertheless, insofar as he raises the issue of equality
among religions, we look to the words of the Religion Clauses,
which clearly single out religion for both a benefit and a burden:
"No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof…" On its face, the language
grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this
as a provision which puts religion on an equal footing with other
bases for action seems to be a curious reading. There are no "free
exercise" of "establishment" provisions for science, sports,
philosophy, or family relations. The language itself thus seems to
answer whether we have a paradigm of equality or liberty; the
language of the Clause is clearly in the form of a grant of
liberty. 169
In this case, the government’s conduct may appear innocent and
nondiscriminatory but in effect, it is oppressive to the minority. In
the interpretation of a document, such as the Bill of Rights,
designed to protect the minority from the majority, the question of
which perspective is appropriate would seem easy to answer.
Moreover, the text, history, structure and values implicated in the
interpretation of the clauses, all point toward this perspective.
Thus, substantive equality—a reading of the religion clauses
which leaves both politically dominant and the politically weak
religious groups equal in their inability to use the government
(law) to assist their own religion or burden others—makes the
most sense in the interpretation of the Bill of Rights, a document
designed to protect minorities and individuals from mobocracy in
a democracy (the majority or a coalition of minorities). 170
As previously discussed, our Constitution adheres to the
benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free
Exercise Clause.171 Thus, in arguing that respondent should be
held administratively liable as the arrangement she had was
"illegal per se because, by universally recognized standards, it is
inherently or by its very nature bad, improper, immoral and
contrary to good conscience,"172 the Solicitor General failed to
appreciate that benevolent neutrality could allow for
accommodation of morality based on religion, provided it does
not offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling
state interest, it has to further demonstrate that the state has used
the least intrusive means possible so that the free exercise is not
77
infringed any more than necessary to achieve the legitimate goal
of the state, i.e., it has chosen a way to achieve its legitimate state
end that imposes as little as possible on religious
liberties.174 Again, the Solicitor General utterly failed to prove this
element of the test. Other than the two documents offered as cited
above which established the sincerity of respondent’s religious
belief and the fact that the agreement was an internal arrangement
within respondent’s congregation, no iota of evidence was
offered. In fact, the records are bereft of even a feeble attempt to
procure any such evidence to show that the means the state
adopted in pursuing this compelling interest is the least restrictive
to respondent’s religious freedom.
Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritor’s conjugal arrangement cannot
be penalized as she has made out a case for exemption from the
law based on her fundamental right to freedom of religion. The
Court recognizes that state interests must be upheld in order that
freedoms - including religious freedom - may be enjoyed. In the
area of religious exercise as a preferred freedom, however, man
stands accountable to an authority higher than the state, and so the
state interest sought to be upheld must be so compelling that its
violation will erode the very fabric of the state that will also
protect the freedom. In the absence of a showing that such state
interest exists, man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is
dismissed.
SO ORDERED
EN BANC
A.M. No. 02-2-10-SC December 14, 2005
RE: REQUEST OF MUSLIM EMPLOYEES IN THE
DIFFERENT COURTS IN ILIGAN CITY (RE: OFFICE
HOURS)
RESOLUTION
CALLEJO, SR., J.:
In their Letter dated November 19, 2001 addressed to Executive
Judge Valerio M. Salazar, Regional Trial Court of Iligan City,
several Muslim employees in the different courts in the said city
request that they be allowed to enjoy the following privileges:
1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch
break or coffee breaks during the month of Ramadan;
2. to be excused from work from 10:00 a.m. to 2:00 p.m. every
Friday (Muslim Prayer Day) during the entire calendar year.
Judge Salazar forwarded the said letter-request to the Office of the
Court Administrator (OCA). Judge Salazar expressed his
conformity with the first request, i.e., allowing them to hold office
from 7:30 a.m. to 3:30 p.m. without any break during the month
of Ramadan. However, he expressed some misgivings about the
second request, i.e., excusing them from work from 10:00 a.m. to
2:00 p.m. every Friday during the entire calendar year.

In support of their requests, the Muslim employees invoke
Presidential Decree (P.D.) No. 2911 as amended by P.D. No.
3222 enacted by then President Ferdinand E. Marcos. The avowed
purpose of P.D. No. 291 was to reinforce national unity by
recognizing Muslim holidays and making them part of our
national holidays. Section 2 thereof, as amended by P.D. No. 322,
provides that the following are recognized Muslim holidays:
a. Eid-ul-Fitr (Hariraya Puasa) - which falls on the 1st day of the
lunar month of Shawwal commemorating the end of the fasting
season;
b. Eid-ul-Adha (Hariraya Haj) - which falls on the 10th day of the
12th Lunar month of Zul Hajj;
c. Mauledan Nabi - Birthday of Prophet Mohammad (P.B.U.H),
which falls on the 12th day of the 3rd Lunar month of Rabbiol-
Awwal;
d. Lailatul Isra Wal Miraj - (Ascension) which falls on the 27th
day of the 8th Lunar month of Rajjab;
e. Muharram (Ashura) - which falls on the 10th Lunar month of
Muharram; and
f. Amon Jaded (New Year) - which falls on the 1st day of the 1st
Lunar month of Muharram.
Muslims employees in the government are excused from reporting
to office during these holidays in order that they may be able to
properly observe them.
Section 3 of the same law, as amended by P.D. No. 322, further
provides that:
Sec. 3. (a) During the fasting season on the month of Ramadan, all
Muslim employees in the national government, government-
owned or controlled corporations, provinces, cities, municipalities
and other instrumentalities shall observe office hours from seven-
thirty in the morning (7:30 a.m.) to three-thirty in the afternoon
(3:30 p.m.) without lunch break or coffee breaks, and that there
shall be no diminution of salary or wages, provided, that the
employee who is not fasting is not entitled to the benefit of this
provision.
(b) Regulations for the implementation of this section shall be
issued together with the implementing directives on Muslim
holidays.
Pursuant thereto, the Civil Service Commission (CSC)
promulgated Resolution No. 81-1277 dated November 13, 1981
which states in part:
2. During "Ramadan" the Fasting month (30 days) of the
Muslims, the Civil Service official time of 8 o’clock to 12 o’clock
and 1 o’clock to 5 o’clock is hereby modified to 7:30 A.M. to
3:30 P.M. without noon break and the difference of 2 hours is not
counted as undertime;
3. During Friday, the Muslim pray day, Muslims are excused from
work from 10 o’clock in the morning to 2 o’clock in the
afternoon.
Moreover, in its Resolution No. 00-0227 dated January 26, 2000,
the CSC clarified that the term "Friday" in the above resolution is
not limited to the Fridays during the month of Ramadan, but
refers to "all Fridays of the  recognized holidays.
calendar year." However, in order not to run afoul of Section
5,3 Rule XVII of the Omnibus Rules Implementing Book V of
Executive Order (E.O.) No. 2924 which enjoins civil servants to
render public service not less than eight hours a day or forty (40)
hours a week, the CSC prescribes the adoption of a flexible
working schedule to accommodate the Muslims’ Friday Prayer
Day subject to certain conditions, e.g., the flexible working hours
shall not start earlier than 7:00 a.m. and end not later than 7:00
p.m.5
In the Resolution dated October 1, 2002, the Court required the
Court Administrator to study the matter. In compliance therewith,
Court Administrator Presbitero J. Velasco, Jr. recommends that
the Muslim employees in the Judiciary be allowed to hold flexible
office hours from 7:30 a.m. to 3:30 p.m. without break during the
month of Ramadan. Further, that they be excused from work from
10:00 a.m. to 2:00 p.m. every Friday to allow them to attend the
Muslim Prayer Day. However, to compensate for the lost hours,
they should be required to observe flexible working schedule
which should start from 7:00 a.m. to 10:00 a.m. and from 2:00
p.m. to 7:00 p.m. every Friday. In that way, the working hours
mandated by the civil service rules is complied with.
The recommendation of the Court Administrator with respect to
the matter of allowing the Muslim employees in the Judiciary to
hold flexible office hours from 7:30 a.m. to 3:30 p.m. without
break during the month of Ramadan is well taken. The same has
statutory basis in Section 3 (a) of P.D. No. 291, as amended by
P.D. No. 322, which categorically states that "[d]uring the fasting
season in the month of Ramadan, all Muslim employees in the
national government, government-owned or controlled
corporations, provinces, cities, municipalities and other
instrumentalities shall observe office hours from seven-thirty in
the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.)
without lunch break or coffee breaks, and that there shall be no
diminution of salary or wages ..."
The Court, however, is constrained to deny for lack of statutory
basis the request of the Muslim employees to be excused from
78
work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to
attend the Muslim Prayer Day. As correctly observed by Atty.
Edna Diño, Chief, Office of the Court Attorney, in her Report
dated May 13, 2005, the CSC exceeded its authority insofar as it
declared in Resolution No. 81-1277 and Resolution No. 00-0227
that Muslim employees are excused from work from 10:00 a.m. to
2:00 p.m. 
every Friday subject to certain conditions. CSC Resolution No.
81-1277 was purportedly issued pursuant to Sections 2 and 5 of
P.D. No. 291, as amended by P.D. No 322, but neither of the two
decrees mention "Friday, the Muslim Prayer Day" as one of the
The Court is not unmindful that the subject requests are grounded
on Section 5, Article III of the Constitution:
No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The exercise and enjoyment
of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be
required for the exercise of civil and political rights.
This provision contains two aspects: (1) the non-establishment
clause; and (2) the free exercise clause. The subject requests are
based on the latter and in interpreting this clause (the free exercise
clause) embodied in the Constitution, the Court has consistently
adhered to the doctrine that:
The right to religious profession and worship has a two-fold
aspect, viz., freedom to believe and freedom to act on one’s
beliefs. The first is absolute as long as the belief is confined
within the realm of thought. The second is subject to regulation
where the belief is translated into external acts that affect the
public welfare.6
Justice Isagani A. Cruz explained these two concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about
life and death; worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the divinity of God
or of any being that appeals to his reverence; recognize or deny
the immortality of his soul – in fact, cherish any religious
conviction as he and he alone sees fit. However absurd his beliefs
may be to others, even if they be hostile and heretical to the
majority, he has full freedom to believe as he pleases. He may not
be required to prove his beliefs. He may not be punished for his
inability to do so. Religion, after all, is a matter of faith. "Men
may believe what they cannot prove." Every one has a right to his
 79

beliefs and he may not be called to account because he cannot would encourage other religious denominations to request for
prove what he believes. similar treatment.

(2) Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or
omissions that affect the public, his freedom to do so becomes
subject to the authority of the State. As great as this liberty may
be, religious freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the
rights of others. It is error to think that the mere invocation of
religious freedom will stalemate the State and render it impotent
in protecting the general welfare. The inherent police power can
be exercised to prevent religious practices inimical to society. And
this is true even if such practices are pursued out of sincere
religious conviction and not merely for the purpose of evading the
reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: The 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.7
The Court recognizes that the observance of Ramadan and the
Friday Muslim Prayer Day is integral to the Islamic faith.
However, while the observance of Ramadan and allowing the
Muslim employees in the Judiciary to hold flexible office hours
from 7:30 a.m. to 3:30 p.m. without any break during the month
of Ramadan finds support in Section 3 (a) of P.D. No. 291, as
amended by P.D. No. 322, there is no such basis to excuse them
from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim
Prayer Day, during the entire calendar year.
The performance of religious practices, whether by the Muslim
employees or those belonging to other religious denominations,
should not prejudice the courts and the public. Indeed, the
exercise of religious freedom does not exempt anyone from
compliance with reasonable requirements of the law, including
civil service laws.
In fine, the remedy of the Muslim employees, with respect to their
request to be excused from work from 10:00 a.m. to 2:00 p.m.
every Friday during the entire calendar year, is legislative, which
is to ask Congress to enact a legislation expressly exempting them
from compliance with the prescribed government working hours.
ACCORDINGLY, the Court resolved to:
1. GRANT the request to allow the Muslim employees in the
Judiciary to hold office hours from 7:30 a.m. to 3:30 p.m. without
break during the month of Ramadan pursuant to Section 3 (a) of
Presidential Decree No. 291, as amended by Presidential Decree
No. 322; and
2. DENY for lack of legal basis the request that the Muslim
employees in the Judiciary be excused from work from 10:00 a.m.
to 2:00 p.m. every Friday, the Muslim Prayer Day, during the
entire calendar year.
SO ORDERED.

On the other hand, the need of the State to prescribe government

office hours as well as to enforce them uniformly to all civil
servants, Christians and Muslims alike, cannot be disregarded.
Underlying Section 5,8 Rule XVII of the Omnibus Rules
Implementing Book V of E.O. No. 292 is the interest of the
general public to be assured of continuous government service
during office hours every Monday through Friday. The said rule
enjoins all civil servants, of whatever religious denomination, to
render public service of no less than eight hours a day or forty
(40) hours a week.

To allow the Muslim employees in the Judiciary to be excused

from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim
Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then,
they would be rendering service twelve (12) hours less than that
required by the civil service rules for each month. Further, this