F. Freedom of religion

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

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1. Non-establishment and free exercise clauses

Non-establishment and free exercise clauses. 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. (Section 5, Article III, 1987 Constitution)

The two (2) guarantees under religious freedom:
1) The Establishment Clause; and
2) The Free Exercise Clause. (Imbong v. Ochoa, supra.)

Establishment and Free Exercise Clause – to promote freedom of individual religious beliefs and practices. The Establishment and Free Exercise Clauses were not designed to serve contradictory purposes. They have a single goal – to promote freedom of individual religious beliefs and practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the Establishment Clause prohibits government from inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses were intended to deny government the power to use either the carrot or the stick to influence individual religious beliefs and practices. (Estrada v. Escritor, A.M. No. P-02-1651, 22 June 2006)

German v. Barangan, En Banc (1985)
Citing Cantwell v. Connecticut, 310 U.S. 296:
The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the amendment embraces two concepts-freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.

a. Establishment Clause

EstablishmentAccommodation
Establishment entails a positive action on the part of the State. (Re: Letter of Tony Q. Valenciano, 2017)Accommodation is passive. (Ibid.)
The State becomes involved through the use of government resources with the primary intention of setting up a state religion. (Ibid.)The State, without being entangled, merely gives consideration to its citizens who want to freely exercise their religion. (Ibid.)

Within the Filipino society’s perspective. Indeed, there is a thin line between accommodation and establishment, which makes it even more imperative to understand each of these concepts by placing them in the Filipino society’s perspective. (Ibid.)

1) Wall of separation

Reinforces wall of separation between Church and State. The non-establishment clause reinforces the wall of separation between Church and State. It simply means that the State cannot set up a Church; nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion; that the state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance; that no tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called or whatever form they may adopt or teach or practice religion; that the state cannot openly or secretly participate in the affairs of any religious organization or group and vice versa. Its minimal sense is that the state cannot establish or sponsor an official religion. (Re: Letter of Tony Q. Valenciano, A.M. No. 10-4-19-SC, 07 March 2017)

Same; Establishment clause – restricts what government and religious sects can do. In the same breath that the establishment clause restricts what the government can do with religion, it also limits what religious sects can or cannot do. They can neither cause the government to adopt their particular doctrines as policy for everyone, nor can they cause the government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a particular religion and, thus, establish a state religion. (Ibid.)

Re: Letter of Tony Q. Valenciano (2017)
Father Bernas further elaborated on this matter, as follows:
“In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: (1) Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension; (2) Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension; (3) Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension; [and] (4) Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.”

2) No Appropriation of public money or property for the benefit of any Church

No using of public money/property. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (Section 29 [2], Article VI of the 1987 Constitution)

Same; Concept: Apply. The word “apply” means “to use or employ for a particular purpose.” “Appropriate” means “to prescribe a particular use for particular moneys or to designate or destine a fund or property for a distinct use, or for the payment of a particular demand.” (Ibid.)

Same; Concepts: Pay, Employ. Thus, the words “pay” and “employ” should be understood to mean that what is prohibited is the use of public money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a particular church. (Ibid.)

Same; Use of public property – allowed. It has also been held that the aforecited constitutional provision “does not inhibit the use of public property for religious purposes when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general.” Hence, a public street may be used for a religious procession even as it is available for a civic parade, in the same way that a public plaza is not barred to a religious rally if it may also be used for a political assemblage.

Same; Concepts: Directly or Indirectly. In relation thereto, the phrase “directly or indirectly” refers to the manner of appropriation of public money or property, not as to whether a particular act involves a direct or a mere incidental benefit to any church. Otherwise, the framers of the Constitution would have placed it before “use, benefit or support” to describe the same. Even the exception to the same provision bolsters this interpretation. The exception contemplates a situation wherein public funds are paid to a priest, preacher, minister, or other religious teacher, or dignitary because they rendered service in the armed forces, or to any penal institution, or government orphanage or leprosarium. That a priest belongs to a particular church and the latter may have benefited from the money he received is of no moment, for the purpose of the payment of public funds is merely to compensate the priest for services rendered and for which other persons, who will perform the same services will also be compensated in the same manner.

Re: Letter of Tony Q. Valenciano (2017)
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. As such, the foregoing interpretation finds support in the Establishment Clause, which is as clear as daylight in stating that what is proscribed is the passage of any law which tends to establish a religion, not merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly and exclusively devoted to religious purposes.45 Certainly, this benefits the religious sects for a portion of what could have been collected for the benefit of the public is surrendered in their favor.
In Manosca v. CA, a parcel of land located in Taguig was determined by the National Historical Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then sought to expropriate the said property. The exercise of the power of eminent domain was questioned on the ground that it would only benefit members of Iglesia ni Cristo. The Court upheld the legality of the expropriation, viz.:
“The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature.”
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-third International Eucharistic Congress was assailed on the ground that it violated the constitutional prohibition against the appropriation of public money or property for the benefit of any church. In ruling that there was no such violation, the Court held:
“It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated.”
Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the sole purpose of supporting the Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its faithful contrary to the claim of Valenciana. Judge Maceren reported that the basement is also being used as a public waiting area for most of the day and a meeting place for different employee organizations. The use of the area for holding masses is limited to lunch break period from twelve (12) o’clock to one (1) o’clock in the afternoon. Further, Judge Sagun, Jr. related that masses run for just a little over thirty (30) minutes. It is, therefore, clear that no undue religious bias is being committed when the subject basement is allowed to be temporarily used by the Catholics to celebrate mass, as the same area can be used by other groups of people and for other purposes.49 Thus, the basement of the QC Hall of Justice has remained to be a public property devoted for public use because the holding of Catholic masses therein is a mere incidental consequence of its primary purpose.

3) Accommodation

Poilcy of accommodation. In order to give life to the constitutional right of freedom of religion, the State adopts a policy of accommodation. Accommodation is a recognition of the reality that some governmental measures may not be imposed on a certain portion of the population for the reason that these measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not impair the public welfare, the attempt of the State to regulate or prohibit such right would be an unconstitutional encroachment. (Re: Letter of Tony Q. Valenciano, A.M. No. 10-4-19-SC, 07 March 2017)

Estrada v. Escritor (2006)
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the “government [may] take religion into account…. to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.”
In Victoriano v. Elizalde Rope Workers Union, the Court upheld the exemption of members of Iglesia ni Cristo from the coverage of a closed shop agreement between their employer and a union, because it would violate the teaching of their church not to affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu, the petitioners, who were members of the Jehovah ‘s Witnesses, refused to salute the flag, sing the national anthem, and recite the patriotic pledge for it is their belief that those were acts of worship or religious devotion, which they could not conscientiously give to anyone or anything except God. The Court accommodated them and granted them an exemption from observing the flag ceremony out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion. The Revised Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of Shawwal, the tenth month of the Islamic Calendar, a national holiday for the observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for the observance of Eidul Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, expressly allows a Filipino Muslim to have more than one (1) wife and exempts him from the crime of bigamy punishable under Revised Penal Code (RPC). The same Code allows Muslims to have divorce.
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national government, government-owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981, which reads in part:
2. During “Ramadan” the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 o’clock to 12 o’clock and 1 o’clock to 5 o’clock is hereby modified to 7:30 AM. to 3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan City (Re: Office Hours), the Court recognized that the observance of Ramadan as integral to the Islamic faith and allowed Muslim employees in the Judiciary to hold flexible office hours from 7:30 o’clock in the morning to 3:30 o’clock in the afternoon without any break during the period. This is a clear case of accommodation because Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all civil servants, of whatever religious denomination, to render public service of no less than eight (8) hours a day or forty (40) hours a week.
Re: Letter of Tony Q. Valenciano (March 2017)
The holding of Catholic masses at the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation. First, there is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. Second, when judiciary employees attend the masses to profess their faith, it is at their own initiative as they are there on their own free will and volition, without any coercion from the judges or administrative officers. Third, no government funds are being spent because the lightings and airconditioning continue to be operational even if there are no religious rituals there. Fourth, the basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced other religions.

b. Free Exercise Clause

Recognition of religion. The State recognizes the inherent right of the people to have some form of belief system, whether such may be belief in a Supreme Being, a certain way of life, or even an outright rejection of religion. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City, En Banc, A.M. No. 10-4-19-SC, 07 March 2017)

Valmores v. Achacoso (2017)
Every person is free to tread the far territories of their conscience, no matter where they may lead – for the freedom to believe and act on one’s own convictions and the protection of such freedom extends to all people, from the theistic to the godless. The State must, as a matter of duty rather than consequence, guarantee that such pursuit remains unfettered.

Freedom of religion; Preferred status. Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status, well aware that it is “designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good.” (Imbong v. Ochoa, En Banc, G.R. Nos. 204819, 204934, 204957, etc., 08 April 2014)

Two-fold aspect to the right to religious profession and worship:
1) Freedom to believe. –This is absolute as long as the belief is confined within the realm of thought.
2) Freedom to act on one’s beliefs. – This is subject to regulation where the belief is translated into external acts that affect the public welfare. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City, March 2017)

Allowing religious practice. Allowing the citizens to practice their religion is not equivalent to a fusion of Church and State. (Ibid.)

Not absolute. Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state interest. (Ibid.)

Valmores v. Achacoso (2017)
Where a medical student was dismissed after failing to attend Saturday classes on religious grounds as such is the Sabbath day for Seventh day Adventist, it was held that  being made to choose between honoring his religious obligations and finishing his education is a patent infringement of his religious freedoms.
German v. Barangan, En Banc (1985)
Where a group of protesters was barred from entering St. Jude Chapel for security reasons due to the church being within Malacañang security area, it was held that they were not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same into action.
Imbong v. Ochoa, En Banc(2014)
The Filipino people in “imploring the aid of Almighty God” manifested their spirituality innate in our nature and consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of morality.
Aglipay v. Ruiz, En Banc (1937)
When the Filipino people, in the preamble of their Constitution, implored “the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy,” they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere.

1) Religious leaders

The Diocese of Bacolod v. COMELEC (2015)
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious [leaders] make such act immune from any secular regulation. The religious also have a secular existence. They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious expression. This notwithstanding petitioners’ claim that “the views and position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings…”
The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then to acts of a secular character that may, from the point of view of others who do not share the same faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations of the religious of their acts are not conclusive on this court. Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in nature.
As aptly argued by COMELEC, however, the tarpaulin, on its face, “does not convey any religious doctrine of the Catholic church.” That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified under “Team Patay” and “Team Buhay” according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression on the tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by petitioners are not binding upon this court. The position of the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political consequences and not religious speech.

2. Benevolent neutrality and conscientious objectors

a. Benevolent neutrality

Doctrine of benevolnent neutrality – in case of conflict of free exercise clause and the State. In case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of benevolent neutrality. (Imbong v. Ochoa, Jr., En Banc, G.R. No. 204819, 08 April 2014)

Separation of Church and State; The wall is to protect the church from the state. The theory of benevolent neutrality or accommodation is premised on a different view of the “wall of separation,” associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect the state from the church, the wall is meant to protect the church from the state. (Estrada v. Escritor, En Banc, A.M. No. P-02-1651, 22 June 2006)

Estrada v. Escritor, En Banc (2003)
Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.
Perfecto v. Esidera (2015)
We find that there is no compelling state interest that may limit respondent judge’s right to participate in religious and merely ceremonial acts that are non-violative of other people’s rights and with no legally binding effect. The institution of marriage is not threatened when we accommodate respondent judge’s freedom to participate in such ceremonies even if they have secular counterparts under our laws.
In any case, respondent judge did not ask that she and her husband be given the same rights as civilly married partners before their civil wedding in 1992. She does not ask that our laws recognize her marriage in 1990 as valid. Respondent judge also does not seem to be against civil marriages. She and her husband were even civilly wed after her marriage with her first spouse was declared void.
However, benevolent neutrality and claims of religious freedom cannot shield respondent judge from liability for misconduct under our laws. Respondent judge knowingly entered into a civil marriage with her first husband. She knew its effects under our laws. She had sexual relations with her second husband while her first marriage was subsisting.
Respondent judge cannot claim that engaging in sexual relations with another person during the subsistence of a marriage is an exercise of her religious expression. Legal implications and obligations attach to any person who chooses to enter civil marriages. This is regardless of how civil marriages are treated in that person’s religion.

b. Conscientious objectors

The first inquiry is whether a conscientious objector’s right to religious freedom has been burdened. (Imbong v. Ochoa, supra.)

Ebralinag v. The Division Superintendent of Cebu, En Banc (1993)
An exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however “bizarre” those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II… while the highest regard must be afforded their right to the free exercise of their religion, “this should not be taken to mean that school authorities are powerless to discipline them” if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose “a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).”
Imbong v. Ochoa (2014)
The conscientious objector’s claim to religious freedom would warrant an exemption from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector’s right to religious freedom has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The scenario is an illustration of the predicament of medical practitioners whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, “at the basis of the free exercise clause is the respect for the inviolability of the human conscience.”
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an externalization of one’s thought and conscience. This in turn includes the right to be silent. With the constitutional guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their beliefs to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and the liberty not to utter what is not in his mind. While the RH Law seeks to provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one’s religion.
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of “the principle of non-coercion” enshrined in the constitutional right to free exercise of religion.

3. Tests to determine the validity of governmental regulation

1) Clear and present danger test.Philippine jurisprudence articulates several tests to determine these limits [of the exercise of religious freedom]. 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. (Imbong v. Ochoa, Jr., En Banc, G.R. No. 204819, 08 April 2014)

2) Test of permissibility of religious freedom.The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. (Ibid.)

3) Immediate and grave danger test. 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. (Ibid.)

4) Grave and immediate danger test. 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. (Ibid.)

Test – when it comes to religious speech; Test – when it comes to compelling state interest.  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. (Ibid.)

Imbong v. Ochoa, Jr., En Banc (April 2014)
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the “clear and present danger” and “grave and immediate danger” tests were appropriate as speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The “compelling state interest” test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights – “the most inalienable and sacred of all human rights”, in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the “aid of Almighty God in order to build a just and humane society and establish a government.” As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide. The “compelling state interest” serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the “compelling state interest” test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

5) Test of benevolent neutrality

In religious freedom cases, the test of benevolent neutrality should be applied. Under the test of benevolent neutrality, religious freedom is weighed against a compelling state interest. (Perfecto v. Esidera, A.M. No. RTJ-15-2417, 22 July 2015)

6) Compelling State Interest

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is proper. 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. (Imbong v. Ochoa, Jr., En Banc, G.R. No. 204819, 08 April 2014)

Estrada v. Escritor (2006)
The “compelling state interest” test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental .right that enjoys a preferred position in the hierarchy of rights – “the most inalienable and sacred of all human rights”, in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the “aid of Almighty God in order to build a just and humane society and establish a government.” As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide. The “compelling state interest” serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the “compelling state interest” test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.
Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City (March 2017)
As reported by the Executive Judges of Quezon City, the masses were being conducted only during noon breaks and were not disruptive of public services. The court proceedings were not being distracted or interrupted and that the performance of the judiciary employees were not being adversely affected. Moreover, no Civil Service rules were being violated. As there has been no detrimental effect on the public service or prejudice to the State, there is simply no state interest compelling enough to prohibit the exercise of religious freedom in the halls of justice.

7) Lemon Test

Under the Lemon Test, a regulation is constitutional when:
1) It has a secular legislative purpose;
2) It neither advances nor inhibits religion; and
3) It does not foster an excessive entanglement with religion.  (The Diocese of Bacolod v. COMELEC, 2015)
Concurring Opinion of J. Leonardo-De Castro in Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City (March 2017)
Excessive entanglement is part of a three part-test now known as the Lemon Test first used by the United States Supreme Court in Lemon v. Kurtzman. Lemon involves the constitutionality of government aid to church-related elementary and secondary schools. To resolve the constitutional question presented before it, the United States Supreme Court applied a three-part test..
First, a law which involves direct contact with religion is valid if it has a secular legislative purpose.
Second, the law’s principal and primary effect must be one that neither advances nor inhibits religion
Third, the law must not foster an “excessive government entanglement with religion.” As to the third part of the test, now famously known as the excessive entanglement test, Lemon identified the criteria that make a law or government act one that excessively entangles the State in church affairs. These criteria are the “character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.”
In Lemon, the United States Supreme Court found that the government aid granted to church-related schools led to excessive entanglement. It found that the schools that stood to benefit from the financial aid were characterized by “substantial religious activity and purpose.” Further, it involved aid to schools where two-thirds of the teachers were nuns and the students were of an impressionable age. Furthermore, even when the law involved provided for means so that the State may ensure that no religious teaching is encouraged, these means would inevitably excessively entangle the government in religious matters.
Nevertheless, Lemon recognized that “[s]ome relationship between government and religious organizations is inevitable.” Thus, it held that “[f]ire inspections, buildings and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts.”
In later cases where the United States Supreme Court found the need to apply the Lemon Test, the issue usually revolved around the grant of government aid to particular institutions or activities. Thus, the question of excessive entanglement can be said to arise when the circumstances pertain to a positive government act affecting identified beneficiaries.

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Subjects

Political Law, Labor Law

D. Power of control and supervision

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