ALEJANDRO ESTRADA, A.M. No.

P-02-1651
Complainant, (formerly OCA I.P.I. No. 00-1021-P)

Present:

PANGANIBAN, CJ.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus- CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.
Promulgated:
SOLEDAD S. ESCRITOR,
Respondent. June 22, 2006

x--------------------------------------------------x

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 Pias 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, 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 Jehovahs 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 Jehovahs 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 Jehovahs 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. 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 Quilapios
declarations were executed in the usual and approved form prescribed by the
Jehovahs 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 Jehovahs 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 Escritors 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 respondents 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 respondents claimed religious
belief and practice;

(b) present evidence on the states compelling interest to override

respondents religious belief and practice; and

(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondents 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 Carpios 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 Carpios 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
[18]
itself, when the authority and power of the state were ascribed to God. 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 religions 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 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 goalto 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 states 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 Amendments 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 Jeffersons 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 Islandcolony. Unlike the Jeffersonian wall that is meant to protect the
state from 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 xxx xxx

We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions. For it
then respects the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its weight against
efforts to widen their 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 Courts 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 viewpointthe existence of and potential for
intervention by a godover 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 governments 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 persons or institutions
religion. As Justice Brennan explained, the government [may] take religion into
accountto 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, appellees 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 appellants 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 appellants religion may be justified by a compelling state
 interest in the regulation of a subject within the States 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 was no such compelling state interest to override Sherberts religious
liberty. It added that even if the state could show that Sherberts 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 Sherberts 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 states 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
protectedconduct beyond speech, press, or worship was included in the shelter of
freedom of religion. Neither Sherberts 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 governments 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
governments 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 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 states 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 individuals 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 Scalias opinion then reviewed the cases where free exercise
challenges had been upheldsuch as Cantwell, Murdock, Follet,
Pierce, and Yoderand 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 OConnor 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 Amendments 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 Amendments mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society. [79]

Justice OConnor also disagreed with the majoritys 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 OConnor 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]

Criticism of Smith was intense and widespread.[82] 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 Smiths 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-Smith[94] 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 Courts ultimate concern in Smith appeared to be two-fold:

(1) the difficulty in defining and limiting the term religion in todays pluralistic
society, and (2) the belief that courts have no business determining the significance
of an individuals 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 Courts
characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts 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 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 Courts
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 Courts 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 legislatures 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, Smiths characterization that the U.S. Court has never held
that an individuals religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the state is free to regulatean assertion which
Mr. Justice Carpio adopted unequivocally in his dissenthas 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 combinedthe right of parents to direct the education of
their children and the right of free exercise of religion. Under the Courts 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
Courts 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 Courts 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 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 claimants 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 states 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 ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious freedom
is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances.

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 someones 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 Amendments mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society.[120] Underlying
the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.[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 claimants beliefs must be sincere,
but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimants 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--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 adoptedlock, stock and barrelthe religion clauses as embodied in the First
Amendment, and therefore, the U.S. Courts 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 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 Constitutions 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 Carpios total adherence to the U.S. Courts
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 individuals 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
mayors permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the citys 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 Jehovahs
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 Union [135] is an example of the
application of Mr. Justice Carpios 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
agreementmandated in another lawbased on religious objections.
Aunanimous 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 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 states
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 states 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 Carpios 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 requireaccommodations 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 Carpios 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 Carpios advocacy of
the Smith doctrine would effectively render the Free Exercise protectiona
fundamental right under our Constitutionnugatory 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 claimants belief is ascertained to avoid the mere claim of religious beliefs
to escape a mandatory regulation. xxx

xxx xxx 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

xxx xxx 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 Carpios 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 Carpios 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 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 marriedunder 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 Sharia law allows a
Muslim to have more than one wife.
 From the foregoing, the weakness of Mr. Justice Carpios 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 OConnor 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--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 testto draw the line
between mandatory, permissible and forbidden religious exercise. Thus, under the
framework, the Court cannot simply dismiss a claim under the 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 Officers report,[146] along 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 testbased 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 respondents 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
respondents 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 respondents 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 respondents 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 respondents

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 Jehovahs 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 respondents claimed religious belief and practice, in
order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution[148] 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 respondents 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 states 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 respondents 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 States 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 states 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 States broad interest in protecting the institutions of

marriage and the family, or even in the sound administration of justice that must be
weighed against respondents claim, but the States narrow interest in refusing to
make an exception for the cohabitation which respondents 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 Blackmuns application of the compelling interest

test, the States 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 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 States 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 respondents 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-Santiagos 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, respondents

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 Jehovahs
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 Carpios 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 Jehovahs Witnesses, the Catholic
faith considers cohabitation without marriage as immoral. Second, but more
important, the Jehovahs 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 governments 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
equalitya 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 othersmakes 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 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 respondents religious belief and the fact that the agreement was an
internal arrangement within respondents 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 respondents religious freedom.

Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritors 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.