Alejandro Estrada v Escritot

7/24/2019 Alejandro Estrada v Escritot

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ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.ESCRITOR, respondent.

D E C I S I O N

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law whereman stands accountable to an authority higher than the state. To be held onbalance are the states interest and the respondents religious freedom. In thishighly sensitive area of law, the task of balancing between authority andliberty is most delicate because to the person invoking religious freedom, theconsequences of the case are not only temporal. The task is not made easierby the American origin of our religion clauses and the wealth of U..

!urisprudence on these clauses for in the United tates, there is probably no

more intensely controverted area of constitutional interpretation than thereligion clauses.[1]The U.. upreme "ourt itself has acknowledged that in thisconstitutional area, there is #considerable internal inconsistency in theopinions of the "ourt.$[2]As stated by a professor of law, #%i&t is by nownotorious that legal doctrines and !udicial decisions in the area of religiousfreedom are in serious disarray. In perhaps no other area of constitutional lawhave confusion and inconsistency achieved such undisputedsovereignty.$[3]'evertheless, this thicket is the only path to take to conquer themountain of a legal problem the case at bar presents. (oth the penetratingand panoramic view this climb would provide will largely chart the course of

religious freedom in )hilippine !urisdiction. That the religious freedom questionarose in an administrative case involving only one person does not alter theparamount importance of the question for the #constitution commands thepositive protection by government of religious freedom *not only for a minority,however small* not only for a ma!ority, however large* but for each of us.$ [4]

I. Facts

The facts of the case will determine whether respondent will prevail in herplea of religious freedom. It is necessary therefore to lay down the facts indetail, careful not to omit the essentials.

In a sworn letter*complaint dated +uly -, , complainant Ale!andro/strada wrote to +udge +ose 0. "aoibes, +r., presiding !udge of (ranch 12,3egional Trial "ourt of 4as )i5as "ity, requesting for an investigation ofrumors that respondent oledad /scritor, court interpreter in said court, is
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living with a man not her husband. They allegedly have a child of eighteen totwenty years old. /strada is not personally related either to /scritor or herpartner and is a resident not of 4as )i5as "ity but of (acoor,"avite. 'evertheless, he filed the charge against /scritor as he believes thatshe is committing an immoral act that tarnishes the image of the court, thusshe should not be allowed to remain employed therein as it might appear thatthe court condones her act.[5]

+udge "aoibes referred the letter to /scritor who stated that #there is notruth as to the veracity of the allegation$ and challenged /strada to #appear inthe open and prove his allegation in the proper forum.$ [6]+udge "aoibes set apreliminary conference on 6ctober 7, . /scritor moved for the inhibitionof +udge "aoibes from hearing her case to avoid suspicion and bias as shepreviously filed an administrative complaint against him and said case was stillpending in the 6ffice of the "ourt Administrator %6"A&. /scritors motion was

denied. The preliminary conference proceeded with both /strada and /scritorin attendance. /strada confirmed that he filed the letter*complaint forimmorality against /scritor because in his frequent visits to the 8all of +usticeof 4as )i5as "ity, he learned from conversations therein that /scritor wasliving with a man not her husband and that she had an eighteen to twenty*year old son by this man. This prompted him to write to +udge "aoibes as hebelieved that employees of the !udiciary should be respectable and /scritorslive*in arrangement did not command respect.[]

3espondent /scritor testified that when she entered the !udiciary in 7999,[!]

she was already a widow, her husband having died in 799:.["]

he admittedthat she has been living with 4uciano ;uilapio, +r. without the benefit ofmarriage for twenty years and that they have a son. (ut as a member of thereligious sect known as the +ehovahs


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)ill co$ti$#e to see the 'ea$s to obtai$ le*al reco*$itio$ o+ this relatio$shi" b the

ci!il a#thorities a$d i+ at a$ +#t#re ti'e a cha$*e i$ circ#'sta$ces 'ae this

"ossible, I "ro'ise to le*ali-e this #$io$.

Si*$ed this 12thda o+ l 3443.[10]

/scritors partner, ;uilapio, e=ecuted a similar pledge on the same day.[11](othpledges were e=ecuted in Atimonan, ;ue@on and signed by threewitnesses. At the time /scritor e=ecuted her pledge, her husband was stillalive but living with another woman. ;uilapio was likewise married at thattime, but had been separated in fact from his wife. >uring her testimony,/scritor volunteered to present members of her congregation to confirm thetruthfulness of their #>eclarations of )ledging 0aithfulness,$ but +udge"aoibes deemed it unnecessary and considered her identification of hersignature and the signature of ;uilapio sufficient authentication of the

documents. [12]

+udge "aoibes endorsed the complaint to /=ecutive +udge anuel (.0ernande@, +r., who, in turn, endorsed the same to "ourt Administrator Alfredo4. (enipayo. 6n +uly 7-, 7, the "ourt, upon recommendation of Acting"ourt Administrator Benaida '. /lepa5o, directed /scritor to comment on thecharge against her. In her comment, /scritor reiterated her religiouscongregations approval of her con!ugal arrangement with ;uilapio, viz?

Herei$ res"o$de$t does $ot i*$ore alle*ed acc#satio$ b#t she reiterates to state )ith

ca$dor that there is $o tr#th as to the !eracit o+ sa'e alle*atio$. I$cl#ded here)ithare doc#'e$ts de$o'i$ated as Declaratio$ o+ Pled*i$* Faith+#l$ess 5E6hibit 3 a$d

E6hibit 17 d#l si*$ed b both res"o$de$t a$d her 'ate i$ 'arital relatio$shi" )ith

the )it$esses co$c#rri$* their acce"ta$ce to the arra$*e'e$t as a""ro!ed b the

0ATCH TO0ER 8I8LE a$d TRACT SOCIET9, Phili""i$e 8ra$ch.

Sa'e 'arital arra$*e'e$t is reco*$i-ed as a bi$di$* tie be+ore :&EHO;AH< God a$d

be+ore all "erso$s to be held to a$d ho$ored i$ +#ll accord )ith the "ri$ci"les o+ God/s

0ord.

=== ======

U$dersi*$ed s#b'its to the =#st, h#'a$e a$d +air discretio$ o+ the Co#rt )ith

!eri+icatio$ +ro' the 0ATCH TO0ER 8I8LE a$d TRACT SOCIET9, Phili""i$e

8ra$ch . . . to )hich #$dersi*$ed belie!es to be a hi*h a#thorit i$ relatio$ to her

case.[13]
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>eputy "ourt Administrator "hristopher 6. 4ock recommended that thecase be referred to /=ecutive +udge (onifacio an@ aceda, 3T" (ranch11, 4as )i5as "ity for investigation, report and recommendation. In thecourse of +udge acedas investigation, /scritor again testified that hercongregation allows her con!ugal arrangement with ;uilapio and it does notconsider it immoral. he offered to supply the investigating !udge someclippings which e=plain the basis of her congregations belief and practiceregarding her con!ugal arrangement. /scritor started living with ;uilapiotwenty years ago when her husband was still alive but living with anotherwoman. he met this woman who confirmed to her that she was living withher %/scritors& husband.[14]

Cregorio ala@ar, a member of the +ehovahs eclaration of )ledging0aithfulness$, viz?

;? 'ow, insofar as the pre*marital relationship is concern %sic&, can you cite someparticular rules and regulations in your congregationD

A? eclaration of )ledge offaithfulness.

;? eclaration of )ledge of faithfulness.

;? eclaration of )ledge of faithfulness, whoare suppose %sic& to e=ecute this documentD

A? This must be signed, the document must be signed by the elders of thecongregationE the couple, who is a member %sic& of the congregation, bapti@edmember and true member of the congregation.

;?


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A? It means to me that they have contracted, let us say, I am the one who contractedwith the opposite member of my congregation, opposite se=, and that thisdocument will give us the right to a marital relationship.

;? o, in short, when you e=ecute a declaration of pledge of faithfulness, it is apreparation for you to enter a marriageD

A? Fes, ir.

;? (ut it does not necessarily mean that the parties, cohabiting or living under thesame roofD

A? o you mean to say, inister, by e=ecuting this document the contracting partieshave the right to cohabitD

A? "an I sir, cite, what the (ible says, the basis of that )ledge of 0aithfulness as we"hristians follow. The basis is herein stated in the (ook of atthew, "hapter 0ive,Gerse Twenty*two. o, in that verse of the (ible, +esus said #that everyonedivorcing his wife, e=cept on account of fornication, makes her a sub!ect foradultery, and whoever marries a divorced woman commits adultery.[15]

/scritor and ;uilapio transferred to ala@ars "ongregation, the Alman@a"ongregation in 4as )i5as, in ay 7. The declarations having beene=ecuted in Atimonan, ;ue@on in 7997, ala@ar had no personal knowledgeof the personal circumstances of /scritor and ;uilapio when they e=ecutedtheir declarations. 8owever, when the two transferred to Alman@a, ala@arinquired about their status from the Atimonan "ongregation, gatheredcomments of the elders therein, and requested a copy of their

declarations. The Alman@a "ongregation assumed that the personalcircumstances of the couple had been considered by the Atimonan"ongregation when they e=ecuted their declarations.

/scritor and ;uilapios declarations are recorded in the


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atthew 1?2 that when the spouse commits adultery, the offended spousecan remarry. The marital status of the declarants and their respectivespouses commission of adultery are investigated before the declarations aree=ecuted. Thus, in the case of /scritor, it is presumed that the Atimonan"ongregation conducted an investigation on her marital status before thedeclaration was approved and the declaration is valid everywhere, includingthe Alman@a "ongregation. That /scritors and ;uilapios declarations wereapproved are shown by the signatures of three witnesses, the elders in the

Atimonan "ongregation. ala@ar confirmed from the congregations branchoffice that these three witnesses are elders in the Atimonan"ongregation. Although in 799: /scritor was widowed, thereby lifting thelegal impediment to marry on her part, her mate is still not capacitated toremarry. Thus, their declarations remain valid. 6nce all legal impediments forboth are lifted, the couple can already register their marriage with the civilauthorities and the validity of the declarations ceases. The elders in thecongregations can then solemni@e their marriage as authori@ed by )hilippinelaw. In sum, therefore, insofar as the congregation is concerned, there isnothing immoral about the con!ugal arrangement between /scritor and;uilapio and they remain members in good standing in the congregation.[1]

alvador 3eyes, a minister at the Ceneral de 4eon, Galen@uela "ity"ongregation of the +ehovahs


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her co*members in the congregation and serves only the internal purpose ofdisplaying to the rest of the congregation that she and her mate are arespectable and morally upright couple. Their religious belief and practice,however, cannot override the norms of conduct required by law forgovernment employees. To rule otherwise would create a dangerousprecedent as those who cannot legali@e their live*in relationship can simply

!oin the +ehovahs


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'arital #$io$ i$ the ees o+ all. 5Heb. 3>?@7. I+ di!orce is "ossible, the$ s#ch ste"

sho#ld $o) be tae$ so that, ha!i$* obtai$ed the di!orce 5o$ )hate!er le*al *ro#$ds

'a be a!ailable7, the "rese$t #$io$ ca$ recei!e ci!il !alidatio$ as a reco*$i-ed

'arria*e.

Fi$all, i+ the 'arital relatio$shi" is $ot o$e o#t o+ har'o$ )ith the "ri$ci"les o+God/s 0ord, a$d i+ o$e has do$e all that ca$ reaso$abl be do$e to ha!e it reco*$i-ed

b ci!il a#thorities a$d has bee$ bloced i$ doi$* so, the$, a Declaratio$ Pled*i$*

Faith+#l$ess ca$ be si*$ed. I$ so'e cases, as has bee$ $oted, the e6tre'e slo)$ess o+

o++icial actio$ 'a 'ae acco'"lishi$* o+ le*al ste"s a 'atter o+ 'a$, 'a$ ears

o+ e++ort. Or it 'a be that the costs re"rese$t a cr#shi$*l hea! b#rde$ that the

i$di!id#al )o#ld $eed ears to be able to 'eet. I$ s#ch cases, the declaratio$

"led*i$* +aith+#l$ess )ill "ro!ide the co$*re*atio$ )ith the basis +or !ie)i$* the

e6isti$* #$io$ as ho$orable )hile the i$di!id#al co$ti$#es co$scie$tio#sl to )or

o#t the le*al as"ects to the best o+ his abilit.

ee"i$* i$ 'i$d the basic "ri$ci"les "rese$ted, the res"o$de$t as a Bi$ister o+

&eho!ah God, sho#ld be able to a""roach the 'atter i$ a bala$ced )a, $either

#$deresti'ati$* $or o!eresti'ati$* the !alidatio$ o++ered b the "olitical state. She

al)as *i!es "ri'ar co$cer$ to God/s !ie) o+ the #$io$. Alo$* )ith this, e!er

e++ort sho#ld be 'ade to set a +i$e e6a'"le o+ +aith+#l$ess a$d de!otio$ to o$e/s 'ate,

th#s, ee"i$* the 'arria*e :ho$orable a'o$* all.< S#ch co#rse )ill bri$* God/s

blessi$* a$d res#lt to the ho$or a$d "raise o+ the a#thor o+ 'arria*e, &eho!ah God. 53

Cor. 3?>3>>7[20]

3espondent also brought to the attention of the investigating !udge thatcomplainants emorandum came from +udge "aoibes chambers[21]whomshe claims was merely using petitioner to malign her.

In his 3eport and 3ecommendation, investigating !udge aceda found/scritors factual allegations credible as they were supported by testimonialand documentary evidence. 8e also noted that #%b&y strict "atholic standards,the live*in relationship of respondent with her mate should fall within thedefinition of immoral conduct, to wit? that which is willful, flagrant, orshameless, and which shows a moral indifference to the opinion of the good

and respectable members of the community %- ".+.. 919& %>elos 3eyes vs.A@nar, 7-9 "3A, at p. JJJ&.$ 8e pointed out, however, that #the morerelevant question is whether or not to e=act from respondent /scritor, amember of +ehovahs


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human rights, for it involves the relationship of man to his "reator %at p. -,/(3A4I'AC supra, citing "hief +ustice /nrique . 0ernandos separateopinion in Cerman vs. (arangan, 721 "3A 17H, 12*127&$ and therebyrecommended the dismissal of the complaint against /scritor.[23]

After considering the 3eport and 3ecommendation of /=ecutive +udgeaceda, the 6ffice of the "ourt Administrator, through >eputy "ourt

Administrator %>"A& 4ock and with the approval of "ourt Administrator)resbitero Gelasco, concurred with the factual findings of +udge aceda butdeparted from his recommendation to dismiss the complaint. >"A 4ockstressed that although /scritor had become capacitated to marry by the timeshe !oined the !udiciary as her husband had died a year before, #it is due toher relationship with a married man, voluntarily carried on, that respondentmay still be sub!ect to disciplinary action.$[24]"onsidering the ruling of the "ourtin D#c$#ca% &. F'(%a%, 't a).[25]that #court personnel have been en!oined to

adhere to the e=acting standards of morality and decency in their professionaland private conduct in order to preserve the good name and integrity of thecourt of !ustice,$ >"A 4ock found /scritors defense of freedom of religionunavailing to warrant dismissal of the charge of immorality. Accordingly, herecommended that respondent be found guilty of immorality and that she bepenali@ed with suspension of si= months and one day without pay with awarning that a repetition of a similar act will be dealt with more severely inaccordance with the "ivil ervice 3ules.[26]

II. Iss*'


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Sec. @. Disci"li$e? Ge$eral Pro!isio$s. 5a7 No o++icer or e'"loee i$ the Ci!il

Ser!ice shall be s#s"e$ded or dis'issed e6ce"t +or ca#se as "ro!ided b la) a$d a+ter

d#e "rocess.

5b7 The +ollo)i$* shall be *ro#$ds +or disci"li$ar actio$?

=== ======

57 Dis*race+#l a$d i''oral co$d#ct( 666.

'ot represented by counsel, respondent, in laymans terms, invokes thereligious beliefs and practices and moral standards of her religion, the+ehovahs


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religious and non*religious would thus have been meaningless to him. 8esought protection from all kinds of evil * whether a wild beast or tribe enemyand lightning or wind * from the same person. The head of the clan or the 6ldan of the tribe or the king protected his wards against both human andsuperhuman enemies. In time, the king not only interceded for his people withthe divine powers, but he himself was looked upon as a divine being and hislaws as divine decrees.[2"]

Time came, however, when the function of acting as intermediary betweenhuman and spiritual powers became sufficiently differentiated from theresponsibility of leading the tribe in war and policing it in peace as to requirethe full*time services of a special priest class. This saw the birth of the socialand communal problem of the competing claims of the king andpriest. 'evertheless, from the beginning, the king and not the priest wassuperior. The head of the tribe was the warrior, and although he also

performed priestly functions, he carried out these functions because he wasthe head and representative of the community.[3]

There being no distinction between the religious and the secular, the sameauthority that promulgated laws regulating relations between man and manpromulgated laws concerning mans obligations to the supernatural. Thisauthority was the king who was the head of the state and the source of all lawand who only delegated performance of rituals and sacrifice to thepriests. The "ode of 8ammurabi, king of (abylonia, imposed penalties forhomicide, larceny, per!ury, and other crimesE regulated the fees of surgeons

and the wages of masons and tailors and prescribed rules for inheritance ofpropertyE[31]and also catalogued the gods and assigned them their places inthe divine hierarchy so as to put 8ammurabis own god to a position ofequality with e=isting gods.[32]In sum, the relationship of religion to the state%king& in pre*8ebreic times may be characteri@ed as a union of the two forces,with the state almost universally the dominant partner.[33]

avid were made kings by the prophet amuel, disciple of /li thepriest. 4ike the "ode of 8ammurabi, the osaic code combined civil lawswith religious mandates, but unlike the 8ammurabi "ode, religious laws werenot of secondary importance. 6n the contrary, religious motivation was
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primary and all*embracing? sacrifices were made and Israel was prohibitedfrom e=acting usury, mistreating aliens or using false weights, all because Codcommanded these.

oses of the (ible led not like the ancient kings. The latter used religion

as an engine to advance the purposes of the state. 8ammurabi unifiedesopotamia and established (abylon as its capital by elevating its city*godto a primary position over the previous reigning gods. [35]oses, on the otherhand, capitali@ed on the natural yearnings of the 8ebrew slaves for freedomand independence to further Cods purposes. 4iberation and /=odus werepreludes to inai and the receipt of the >ivine 4aw. The conquest of "anaanwas a preparation for the building of the temple and the full worship of Cod.[36]

Upon the monotheism of oses was the theocracy of Israel founded. Thismonotheism, more than anything else, charted not only the future of religion inwestern civili@ation, but equally, the future of the relationship between religionand state in the west. This fact is acknowledged by many writers, amongwhom is 'orthcott who pointed out, viz?

Historically it was the Hebrew and Christian conception of a single and universal

God that introduced a religious exclusivis leading to copulsion and

persecution in the real of religion! "ncient religions were regarded as confined

to each separate people believing in the# and the $uestion of change fro one

religious belief to another did not arise. It )as $ot #$til a$ e6cl#si!e +ello)shi",

that the #estio$s o+ "roseltis', cha$*e o+ belie+ a$d liberty ofreligionarose.[3%]5emphasis supplied7

The 8ebrew theocracy e=isted in its pure form from oses to amuel. In thisperiod, religion was not only superior to the state, but it was all of thestate. The 4aw of Cod as transmitted through oses and his successors wasthe whole of government.

avid each received their kingdom from amuelthe prophet and disciple of /li the priest, but soon the king dominated prophetand priest. aul disobeyed and even sought to slay amuel the prophet of

Cod.[3!]

Under olomon, the subordination of religion to state becamecompleteE he used religion as an engine to further the states purposes. 8ereformed the order of priesthood established by oses because the highpriest under that order endorsed the claim of his rival to the throne.[3"]

The subordination of religion to the state was also true in pre*"hristian3ome which engaged in emperor*worship.


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esteem as part of a political plan to establish the real religion of pre*"hristian3ome * the worship of the head of the state. 8e set his great uncle +ulius"aesar among the gods, and commanded that worship of >ivine +ulius shouldnot be less than worship of Apollo, +upiter and other gods. iocletian became emperor and sought to reorgani@e the empireand make its administration more efficient. (ut the closely*knit hierarchicallycontrolled church presented a serious problem, being a state within a stateover which he had no control. 8e had two options? either to force it intosubmission and break its power or enter into an alliance with it and procurepolitical control over it. 8e opted for force and revived the persecution,destroyed the churches, confiscated sacred books, imprisoned the clergy andby torture forced them to sacrifice.[42](ut his efforts proved futile.

The later emperor, "onstantine, took the second option ofalliance. "onstantine !oined with Calerius and 4icinius, his two co*rulers ofthe empire, in issuing an edict of toleration to "hristians #on condition that

nothing is done by them contrary to discipline.$[43]

A year later, after Caleriusdied, "onstantine and 4icius !ointly issued the epochal E$#ct 0 #)a%%27 or272&, a document of monumental importance in the history of religiousliberty. It provided #that )#'(t7 0 -0(s#+ sa)) %0t ' $'%#'$t0a%7, butthat the mind and will of every individual shall be free to manage divine affairsaccording to his own choice.$ %emphasis supplied& Thus, all restrictive statuteswere abrogated and it was enacted #that every person who cherishes thedesire to observe the "hristian religion shall freely and unconditionallyproceed to observe the same without let or hindrance.$ 0urthermore, it wasprovided that the #same free and open power to follow their own religion or

worship is granted also to others, in accordance with the tranquillity of ourtimes, in order that '&'(7 +'(s0% a7 a&' ('' 0++0(t*%#t7 t0 -0(s#+t' 08'ct 0 #s c0#c'.9%emphasis supplied&[44]

(efore long, not only did "hristianity achieve equal status, but acquiredprivilege, then prestige, and eventually, e=clusive power. 3eligion became anengine of state policy as "onstantine considered "hristianity a means of
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unifying his comple= empire.


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conscience can without doubt be found in the writings of leaders of the3eformation. (ut !ust as )rotestants living in the countries of papists pleadedfor toleration of religion, so did the papists that lived where )rotestants weredominant.[4])apist and )rotestant governments alike accepted the idea ofcooperation between church and state and regarded as essential to nationalunity the uniformity of at least the outward manifestations of religion.KH:L"ertainly, 4uther, leader of the 3eformation, stated that #neither pope, norbishop, nor any man whatever has the right of making one syllable binding ona "hristian man, unless it be done with his own consent.$ [4"](ut when thetables had turned and he was no longer the hunted heretic, he likewise statedwhen he made an alliance with the secular powers that #%h&eretics are not tobe disputed with, but to be condemned unheard, and whilst they perish by fire,the faithful ought to pursue the evil to its source, and bathe their hands in theblood of the "atholic bishops, and of the )ope, who is a devil in disguise.$ [5]To4uther, unity among the peoples in the interests of the state was an importantconsideration. 6ther personalities in the 3eformation such as elanchton,Bwingli and "alvin strongly espoused theocracy or the use of the state as anengine to further religion. In establishing theocracy in Ceneva, "alvin madeabsence from the sermon a crime, he included criticism of the clergy in thecrime of blasphemy punishable by death, and to eliminate heresy, hecooperated in the Inquisition.[51]

T'(' -'(', 0-'&'(, t0s' -0 t(*)7 a$&0cat'$ (')##0*s)#'(t7. /rasmus, who belonged to the 3enaissance than the 3eformation,wrote that #%t&he terrible papal edict, the more terrible imperial edict, the

imprisonments, the confiscations, the recantations, the fagots and burnings,all these things I can see accomplish nothing e=cept to make the evil morewidespread.$[52]T' #%0(#t7 0( $#ss#$'%t s'cts a)s0 a($'%t)7 a$&0cat'$(')##0*s )#'(t7. The Anabaptists, persecuted and despised, along with theocinians %Unitarians& and the 0riends of the ;uakers founded by Ceorge 0o=in the 7-thcentury, endorsed the supremacy and freedom of the individualconscience. They regarded religion as outside the realm of politicalgovernments. [53]The /nglish (aptists proclaimed that the #magistrate is not tomeddle with religion or matters of conscience, nor compel men to this or thatform of religion.$[54]

Thus, out of the 3eformation, three rationali@ations of church*staterelations may be distinguished? the Erastian %after the Cerman doctor/rastus&, the theocratic, and the separatist. The first assumed state superiorityin ecclesiastical affairs and the use of religion as an engine of state policy asdemonstrated by 4uthers belief that civic cohesion could not e=ist withoutreligious unity so that coercion to achieve religious unity was !ustified. The
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second was founded on ecclesiastical supremacy and the use of statemachinery to further religious interests as promoted by "alvin. T' t#($,-#c -as 7't t0 ac#'&' *)t#at' a%$ c0+)'t' ';+('ss#0% #% t' N'-/0()$, -as $#sc'(%#)7 #% #ts #%c#+#'%t 0( #% t' a(*'%ts 0 s0'$#ss#$'%t #%0(#t#'s tat t' a#st(at' s0*)$ %0t #%t'('$$)' #%(')##0*s aa#(s.[55]After the 3eformation, /rastianism pervaded all /uropee=cept for "alvins theocratic Ceneva. I% E%)a%$, +'(a+s 0(' ta% #%a%7 0t'( c0*%t(7, E(ast#a%#s -as at #ts '#t. To illustrate, a statutewas enacted by )arliament in 7J-:, which, to encourage woolen trade,imposed on all clergymen the duty of seeing to it that no person was buried ina shroud made of any substance other than wool.[56]Under /li@abeth,supremacy of the crown over the church was complete? ecclesiastical officeswere regulated by her proclamations, recusants were fined and imprisoned,+esuits and proselyti@ing priests were put to death for high treason, the thirty*nine Articles of the "hurch of /ngland were adopted and /nglish)rotestantism attained its present doctrinal status.[5]/li@abeth was to berecogni@ed as #the only upreme Covernor of this realm . . . as well in allspiritual or ecclesiastical things or causes as temporal.$ he and hersuccessors were vested, in their dominions, with #all manner of !urisdictions,privileges, and preeminences, in any wise touching or concerning any spiritualor ecclesiastical !urisdiction.$[5!]4ater, however, "romwell establishedthe c0%st#t*t#0% #% 164which granted *)) )#'(t7 t0 a)) P(0t'sta%t s'cts,*t $'%#'$ t0)'(at#0% t0 Cat0)#cs. [5"]In 7J:9,


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$'c)a('$ #ts #%$'+'%$'%c' (0 t' O)$ /0()$, *t t'#( '0(7 -asst#)) $ #% t' #%$s 0 t' C0%st#t*t#0%a) Fat'(s as e=pressed by theUnited tates upreme "ourt, viz?

The ce$t#ries i''ediatel be+ore a$d co$te'"ora$eo#s )ith the colo$i-atio$ o+

A'erica had bee$ +illed )ith t#r'oil, ci!il stri+e, a$d "ersec#tio$ *e$erated i$ lar*e"art b established sects deter'i$ed to 'ai$tai$ their absol#te "olitical a$d reli*io#s

s#"re'ac. 0ith the "o)er o+ *o!er$'e$t s#""orti$* the', at !ario#s ti'es a$d

"laces, Catholics had "ersec#ted Protesta$ts, Protesta$ts had "ersec#ted Catholics,

Protesta$t sects had "ersec#ted other "rotesta$t sects, Catholics o+ o$e shade o+ belie+

had "ersec#ted Catholics o+ a$other shade o+ belie+, a$d all o+ these had +ro' ti'e to

ti'e "ersec#ted &e)s. I$ e++orts to +orce loalt to )hate!er reli*io#s *ro#" ha""e$ed

to be o$ to" a$d i$ lea*#e )ith the *o!er$'e$t o+ a "artic#lar ti'e a$d "lace, 'e$

a$d )o'e$ had bee$ +i$ed, cast i$ =ail, cr#ell tort#red, a$d illed. A'o$* the

o++e$ses +or )hich these "#$ish'e$ts had bee$ i$+licted )ere s#ch thi$*s as s"eai$*

disres"ect+#ll o+ the !ie)s o+ 'i$isters o+ *o!er$'e$testablished ch#rches, $o$

atte$da$ce at those ch#rches, e6"ressio$s o+ $o$belie+ i$ their doctri$es, a$d +ail#re

to "a ta6es a$d tithes to s#""ort the'. [&1]

In 7-:H, Ja's a$#s0%captured in this statement the entire history ofchurch*state relations in /urope up to the time the United tates "onstitutionwas adopted, viz?

Torre$ts o+ blood ha!e bee$ s"ilt i$ the )orld i$ !ai$ atte'"ts o+ the sec#lar ar' to

e6ti$*#ish reli*io#s discord, b "roscribi$* all di++ere$ces i$ reli*io#s o"i$io$s.[&2]

In sum, this history shows two salient features? 0irst, with minore=ceptions, the history of church*state relationships was characteri@ed bypersecution, oppression, hatred, bloodshed, and war, all in the name of theCod of 4ove and of the )rince of )eace. econd, likewise with minore=ceptions, this #st0(7 -#t%'ss'$ t' *%sc(*+*)0*s *s' 0 (')##0% 7s'c*)a( +0-'(s t0 +(00t' s'c*)a( +*(+0s's a%$ +0)#c#'s, a%$ t'-#))#% acc'+ta%c' 0 tat (0)' 7 t' &a%*a($s 0 (')##0% #% ';ca%'0( t' a&0(s a%$ *%$a%' '%'#ts c0%'(('$ 7 a#t#0*s +(#%c's a%$'+'(0(s #% ';ca%' 0( (')##0%=s #%&a)*a)' s'(c'. T#s -as t'c0%t';t #% -#c t' *%#*' ';+'(#'%t 0 t' +(#%c#+)' 0 (')##0*s(''$0 a%$ s'+a(at#0% 0 c*(c a%$ stat' sa- #ts #(t #% A'(#ca%c0%st#t*t#0%a) $'0c(ac7 a%$ #% *a% #st0(7.[63]

. Fact0(s C0%t(#*t#% t0 t' A$0+t#0%0 t' A'(#ca% R')##0% C)a*s's
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ettlers fleeing from religious persecution in /urope, primarily in Anglican*dominated /ngland, established many of the American colonies. (ritishthought pervaded these colonies as the immigrants brought with them theirreligious and political ideas from /ngland and /nglish books and pamphletslargely provided their cultural fare.[64](ut although these settlers escaped from/urope to be freed from bondage of laws which compelled them to supportand attend government favored churches, some of these settlers themselvestransplanted into American soil the oppressive practices they escapedfrom. The charters granted by the /nglish "rown to the individuals andcompanies designated to make the laws which would control the destinies ofthe colonials authori@ed them to erect religious establishments, which all,whether believers or not, were required to support or attend.[65]At one time, si=of the colonies established a state religion. 6ther colonies, however, such as3hode Island and >elaware tolerated a high degree of religious diversity. tillothers, which originally tolerated only a single religion, eventually e=tendedsupport to several different faiths.[66]

T#s -as t' stat' 0 t' A'(#ca% c0)0%#'s -'% t' *%#*'A'(#ca% ';+'(#'%t 0 s'+a(at#0% 0 c*(c a%$ stat' ca' a0*t. Thebirth of the e=periment cannot be attributed to a single cause orevent. 3ather, a number of interdependent practical and ideological factorscontributed in bringing it forth. Among these were the #/nglish Act ofToleration of 7J:9, the multiplicity of sects, the lack of church affiliation on thepart of most Americans, the rise of commercial intercourse, the e=igencies ofthe 3evolutionary


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alternative but to learn to live together. econdly, because of the dailye=posure to different religions, the passionate conviction in the e=clusiverightness of ones religion, which impels persecution for the sake of onesreligion, waned. 0inally, because of the great diversity of the sects, religiousuniformity was not possible, and without such uniformity, establishment couldnot survive.[6"]

(ut while there was a multiplicity of denomination, parado=ically, there wasa scarcity of adherents. 6nly about four percent of the entire population of thecountry had a church affiliation at the time the republic was founded. []Thismight be attributed to the drifting to the American colonies of the skepticismthat characteri@ed /uropean /nlightenment.[1]/conomic considerations mighthave also been a factor. The individualism of the American colonist,manifested in the multiplicity of sects, also resulted in much unaffiliatedreligion which treated religion as a personal non*institutional matter. The

prevalence of lack of church affiliation contributed to religious liberty anddisestablishment as persons who were not connected with any church werenot likely to persecute others for similar independence nor accede tocompulsory ta=ation to support a church to which they did not belong.[2]

8owever, for those who were affiliated to churches, the colonial policyregarding their worship generally followed the tenor of the /nglish Act ofToleration of 7J:9. In /ngland, this Act conferred on )rotestant dissenters theright to hold public services sub!ect to registration of their ministers and placesof worship.[3]Although the toleration accorded to )rotestant dissenters who

qualified under its terms was only a modest advance in religious freedom, itnevertheless was of some influence to the American e=periment. [4]/ven then,for practical considerations, concessions had to be made to other dissentingchurches to ensure their cooperation in the


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(aptists, ;uakers and other nonconformists. In this colony, religious freedomwas not based on practical considerations but on the concept of mutualindependence of religion and government. In 7JJ2, 3hode Island obtained acharter from the (ritish crown which declared that settlers have it #much ontheir heart to hold forth a livelie e=periment that a most flourishing civil statemay best be maintained . . . with full libertie in religious concernments.$ [6]In


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rights and equality set forth in the >eclaration of Independence, there was noroom for religious discrimination. It was difficult to !ustify inequality in religioustreatment by a new nation that severed its political bonds with the /nglishcrown which violated the self*evident truth that all men are created equal. [!3]

The social contract theory was applied by many religious groups inarguing against establishment, putting emphasis on religion as a natural rightthat is entirely personal and not within the scope of the powers of a politicalbody. That 4ocke and the social contract theory were influential in thedevelopment of religious freedom and separation is evident from the memorialpresented by the (aptists to the "ontinental "ongress in 7--H, viz?

Be$ #$ite i$ societ, accordi$* to the *reat Br. Loce, )ith a$ i$te$tio$ i$ e!er o$e

the better to "reser!e hi'sel+, his libert a$d "ro"ert. The "o)er o+ the societ, or

Le*islat#re co$stit#ted b the', ca$ $e!er be s#""osed to e6te$d a$ +#rther tha$ the

co''o$ *ood, b#t is obli*ed to sec#re e!er o$e/s "ro"ert. To *i!e la)s, to recei!eobedie$ce, to co'"el )ith the s)ord, belo$* to $o$e b#t the ci!il 'a*istrate( a$d o$

this *ro#$d )e a++ir' that the 'a*istrate/s "o)er e6te$ds $ot to establishi$* a$

articles o+ +aith or +or's o+ )orshi", b +orce o+ la)s( +or la)s are o+ $o +orce )itho#t

"e$alties. 'he care of souls cannot belong to the civil agistrate# because his

power consists only in outward force( but pure and saving religion consists in the

inward persuasion of the ind# without which nothing can be acceptable to God![)*]5emphasis supplied7

The idea that religion was outside the !urisdiction of civil government was

acceptable to both the religionist and rationalist. To the religionist, Cod or"hrist did not desire that government have that !urisdiction %#render unto"aesar that which is "aesars$E #my kingdom is not of this world$& and to therationalist, the power to act in the realm of religion was not one of the powersconferred on government as part of the social contract.[!5]

'ot only the social contract theory drifted to the colonies from/urope. a%7 0 t' )'a$'(s 0 t' R'&0)*t#0%a(7 a%$ +0steism contributed to theemphasis on secular interests and the relegation of historic theology to thebackground.[!]0or these men of the enlightenment, religion should be allowedto rise and fall on its own, and the state must be protected from the clutches ofthe church whose entanglements has caused intolerance and corruption as


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witnessed throughout history.[!!]'ot only the leaders but also the massesembraced rationalism at the end of the eighteenth century, accounting for thepopularity of )ainesAge of !eason.[!"]

F#%a))7, the events leading to religious freedom and separation in Girginia

contributed significantly to the American e=periment of the 0irstAmendment. #(#%#a -as t' @#(st stat' #% t' #st0(7 0 t' -0()$ t0+(0c)a# t' $'c('' 0 as0)*t' $#&0(c' 't-''% c*(c a%$stat'.9["]any factors contributed to this, among which were that half to two*thirds of the population were organi@ed dissenting sects, the Creat Awakeninghad won many converts, the established Anglican "hurch of Girginia foundthemselves on the losing side of the 3evolution and had alienated manyinfluential laymen with its identification with the "rowns tyranny, and aboveall, present in Girginia was a group of political leaders who were devoted toliberty generally,["1]who had accepted the social contract as self*evident, and

who had been greatly influenced by >eism and Unitarianism. A0% t's')'a$'(s -'(' /as#%t0%, Pat(#c> '%(7, B'0(' as0%, Ja's a$#s0%a%$ a0&' t' ('st, T0as J''(s0%.

The #(st a80( st'+towards separation in Girginia was the adoption ofthe following provision in the (ill of 3ights of the states first constitution?

That religion, or the d#t )hich )e o)e to o#r Creator, a$d the 'a$$er o+ dischar*i$*

it, can be directed only by reason and conviction# not by force or violence( and

therefore# all en are e$ually entitled to the free exercise of religion according to

the dictates of conscience(a$d that it is the '#t#al d#t o+ all to "ractice Christia$

+orbeara$ce, lo!e, a$d charit to)ards each other.[+2]5emphasis supplied7

The adoption of the (ill of 3ights signified the beginning of the end ofestablishment. (aptists, )resbyterians and 4utherans flooded the firstlegislative assembly with petitions for abolition of establishment.


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but those who voted for it did so in the hope that a general assessment billwould be passed.


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adison articulated in the emorial the widely held beliefs in 7-:1 asindicated by the great number of signatures appended to the emorial. Theassessment bill was speedily defeated.

Taking advantage of the situation, adison called up a much earlier 7--9

bill of +efferson which had not been voted on, the #(ill for /stablishing3eligious 0reedom$, and it was finally passed in +anuary 7-:J. Itprovided, viz?

ell aware that "lighty God hath created the ind free(that all atte'"ts to

i$+l#e$ce it b te'"oral "#$ish'e$ts or b#rde$s, or b ci!il i$ca"acitatio$s, te$d $ot

o$l to be*et habits o+ h"ocris a$d 'ea$$ess, a$d are a de"art#re +ro' the "la$ o+

the Hol A#thor o+ o#r reli*io$, )ho bei$* Lord both o+ bod a$d 'i$d, et chose $ot

to "ro"a*ate it b coercio$s o$ either, as )as i$ his Al'i*ht "o)er to do(

=== ======

8e it there+ore e$acted b the Ge$eral Asse'bl. That $o 'a$ shall be co'"elled to

+re#e$t or s#""ort a$ reli*io#s )orshi", "lace or 'i$istr )hatsoe!er, $or shall be

e$+orced, restrai$ed, 'olested or b#rde$ed i$ his bod or *oods, $or shall other)ise

s#++er o$ acco#$t o+ his reli*io#s o"i$io$s or belie+s, b#t that all en shall be free to

profess# and by arguent to aintain# their opinions in atters of religion#a$d

that the sa'e shall i$ $o )ise di'i$ish, e$lar*e or a++ect their ci!il ca"acities.[+)]5emphases supplied7

This statute forbade any kind of ta=ation in support of religion and effectuallyended any thought of a general or particular establishment in Girginia. [""](utthe passage of this law was obtained not only because of the influence of thegreat leaders in Girginia but also because of substantial popular supportcoming mainly from the two great dissenting sects, namely the )resbyteriansand the (aptists. The former were never established in Girginia and anunderprivileged minority of the population. This made them an=ious to pulldown the e=isting state church as they reali@ed that it was impossible for themto be elevated to that privileged position. Apart from these e=pediential

considerations, however, many of the )resbyterians were sincere advocatesof separation[1]grounded on rational, secular arguments and to the languageof natural religion.[11]Influenced by 3oger


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supported religion was contrary ti the spirit of the Cospel. [13]Thus, separationwas necessary.[14]+effersons religious freedom statute was a #)'st0%'in thehistory of religious freedom. The United tates upreme "ourt has not !ustonce acknowledged tat t' +(0s#0%s 0 t' F#(st A'%$'%t 0 t'U.S. C0%st#t*t#0% a$ t' sa' 08'ct#&'s a%$ #%t'%$'$ t0 a0($ t'sa' +(0t'ct#0% aa#%st 0&'(%'%t #%t'('('%c' -#t (')##0*s )#'(t7as t' #(#%#a Stat*t' 0 R')##0*s L#'(t7.

/ven in the absence of the religion clauses, the principle that governmenthad no power to legislate in the area of religion by restricting its free e=erciseor establishing it was implicit in the "onstitution of 7-:-. This could bededuced from the prohibition of any religious test for federal office in Article GIof the "onstitution and the assumed lack of power of "ongress to act on anysub!ect not e=pressly mentioned in the "onstitution.[15]8owever, omission ofan e=press guaranty of religious freedom and other natural rights nearly

prevented the ratification of the "onstitution.[16]

In the ratifying conventions ofalmost every state, some ob!ection was e=pressed to the absence of arestriction on the 0ederal Covernment as regards legislation on religion.[1]Thus, in 7-97, this restriction was made e=plicit with the adoption of thereligion clauses in the 0irst Amendment as they are worded to this day, withthe first part usually referred to as the /stablishment "lause and the secondpart, the 0ree /=ercise "lause, viz?

Co$*ress shall 'ae $o la) res"ecti$* a$ establish'e$t o+ reli*io$ or "rohibiti$* the

+ree e6ercise thereo+.

I. R')##0% C)a*s's #% t' U%#t'$ Stat's:C0%c'+t, J*(#s+(*$'%c', Sta%$a($s


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education, health care, poor relief, and other aspects of social life withsignificant moral dimension * while government played a supportive andindirect role by maintaining conditions in which these activities may be carriedout by religious or religiously*motivated associations. Today, governmentplays this primary role and religion plays the supportive role. [1"]Covernmentruns even family planning, se= education, adoption and foster care programs.[11]tated otherwise and with some e=aggeration, #%w&hereas two centuriesago, in matters of social life which have a significant moral dimension,government was the handmaid of religion, today religion, in its socialresponsibilities, as contrasted with personal faith and collective worship, is thehandmaid of government.$[111]


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These cases are easier to resolve as, in general, these actions are plainlyunconstitutional. till, this kind of cases poses difficulty in ascertaining proofof intent to aid or inhibit religion.[115]The more difficult religion clause casesinvolve government action with a secular purpose and general applicabilitywhich incidentally or inadvertently aids or burdens religious e=ercise. In 0ree/=ercise "lause cases, these government actions are referred to as thosewith #burdensome effect$ on religious e=ercise even if the government actionis not religiously motivated.[116]Ideally, the legislature would recogni@e thereligions and their practices and would consider them, when practical, inenacting laws of general application. (ut when the legislature fails to do so,religions that are threatened and burdened turn to the courts for protection.[11]ost of these free e=ercise claims brought to the "ourt are for e=emption,not invalidation of the facially neutral law that has a #burdensome$ effect.[11!]

efining religion is a difficult task foreven theologians, philosophers and moralists cannot agree on acomprehensive definition. 'evertheless, courts must define religion forconstitutional and other legal purposes.[11"]It was in the 7:9 case of Das &.'as0%[12]that the United tates upreme "ourt#(st a$ 0ccas#0% t0 $'#%'(')##0%, viz?

'he ter -religion. has reference to one.s views of his relations to his Creator#

and to the obligations they ipose of reverence for his being and character# andof obedience to his will! It is o+te$ co$+o#$ded )ith the cultusor +or' o+ )orshi" o+

a "artic#lar sect, b#t is disti$*#ishable +ro' the latter. The First A'e$d'e$t to the

Co$stit#tio$, i$ declari$* that Co$*ress shall 'ae $o la) res"ecti$* the

establish'e$t o+ reli*io$, or +orbiddi$* the +ree e6ercise thereo+, )as i$te$ded to

allo) e!ero$e #$der the =#risdictio$ o+ the U$ited States to e$tertai$ s#ch $otio$s

res"ecti$* his relatio$s to his Baer a$d the d#ties the i'"ose as 'a be a""ro!ed

b his =#d*'e$t a$d co$scie$ce, a$d to e6hibit his se$ti'e$ts i$ s#ch +or' o+ )orshi"

as he 'a thi$ "ro"er, $ot i$=#rio#s to the e#al ri*hts o+ others, a$d to "rohibit

le*islatio$ +or the s#""ort o+ a$ reli*io#s te$ets, or the 'odes o+ )orshi" o+ a$ sect.[121]

The $'#%#t#0% -as c)'a()7 t'#st#cwhich was reflective of the popularattitudes in 7:9.

In 79HH, the "ourt stated in U%#t'$ Stat's &. a))a($[122]that the freee=ercise of religion #embraces the right to maintain t'0(#'s 0 )#' a%$ 0$'at a%$ 0 t' '('at'(which are rank heresy to followers of the orthodo=
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faiths.$[123](y the 79Js, American pluralism in religion had flourished toinclude %0%


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rather than being part of the teachings of any kind of group or sect are entitledto the protection of the 0ree /=ercise "lause.[12"]

>efining religion is only the beginning of the difficult task of decidingreligion clause cases. a% *($)'$ t' #ss*' 0 $'#%#t#0%, t' c0*(t

t'% as t0 $(a- )#%'s t0 $'t'(#%' -at #s 0( #s %0t +'(#ss#)' *%$'(t' (')##0% c)a*s's. In this task, the +*(+0s'of the clauses is theyardstick. Their purpose is singularE they are two sides of the same coin.[13]Indevoting two clauses to religion, the 0ounders were stating not two opposingthoughts that would cancel each other out, but two complementary thoughtsthat apply in different ways in different circumstances. [131]The purpose of thereligion clauses * both in the restriction it imposes on the power of thegovernment to interfere with the free e=ercise of religion and the limitation onthe power of government to establish, aid, and support religion * isthe +(0t'ct#0% a%$ +(00t#0% 0 (')##0*s )#'(t7.[132]The end, the goal, and

the rationale of the religion clauses is this liberty.[133]

(oth clauses were adoptedto prevent government imposition of religious orthodo=yE the great evil againstwhich they are directed is government*induced homogeneity.[134]The F(''E;'(c#s' C)a*s'directly articulates the common ob!ective of the two clausesand the Esta)#s'%t C)a*s'specifically addresses a form of interferencewith religious liberty with which the 0ramers were most familiar and for whichgovernment historically had demonstrated a propensity.[135]In other words, freee=ercise is the end, proscribing establishment is a necessary means to thisend to protect the rights of those who might dissent from whatever religion isestablished.[136]It has even been suggested that the sense of the 0irst

Amendment is captured if it were to read as #"ongress shall make no lawrespecting an establishment of religion or otherwiseprohibiting the freee=ercise thereof$ because the fundamental and single purpose of the tworeligious clauses is to #avoid any infringement on the free e=ercise ofreligions$[13]Thus, the /stablishment "lause mandates separation of churchand state to protect each from the other, in service of the larger goal ofpreserving religious liberty. The effect of the separation is to limit theopportunities for any religious group to capture the state apparatus to thedisadvantage of those of other faiths, or of no faith at all [13!]because history hasshown that religious fervor con!oined with state power is likely to tolerate far

less religious disagreement and disobedience from those who hold differentbeliefs than an enlightened secular state. [13"]In the words of the U.. upreme"ourt, the two clauses are interrelated, viz? #%t&he structure of our governmenthas, for the preservation of civil liberty, rescued the temporal institutions fromreligious interference. 6n the other hand, it has secured religious liberty fromthe invasion of the civil authority.$[14]
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I% *+0)$#% (')##0*s )#'(t7 as t' '%$ 0a) #% (')##0*s c)a*s'cas's, t' )#%' t' c0*(t $(a-s t0 '%s*(' tat 0&'(%'%t $0's %0t'sta)#s a%$ #%st'a$ ('a#%s %'*t(a) t0-a($ (')##0% #s %0t as0)*t')7st(a#t. "hief +ustice (urger e=plains, viz?

The co#rse o+ co$stit#tio$al $e#tralit i$ this area cannot be an absolutely straightline( ri*idit co#ld )ell de+eat the basic "#r"ose o+ these "ro!isio$s, )hich is to

i$s#re that $o reli*io$ be s"o$sored or +a!ored, $o$e co''a$ded a$d $o$e i$hibited.[1*1]5emphasis supplied7

"onsequently, U.. !urisprudence has produced two identifiably different,[142]even opposing, strains of !urisprudence on the religion clauses? s'+a(at#0%#% t' 0( 0 st(#ct s'+a(at#0% 0( t' ta'( &'(s#0% 0 st(#ct %'*t(a)#t70( s'+a(at#0%&and'%'&0)'%t %'*t(a)#t7or acc00$at#0%" A view of thelandscape of U.. religion clause cases would be useful in understanding

these two strains, the scope of protection of each clause, and the tests usedin religious clause cases. ost of these cases are cited as authorities in)hilippine religion clause cases.

A. F('' E;'(c#s' C)a*s'

The "ourt first interpreted the 0ree /=ercise "lause in the 7:-: caseof R'7%0)$s &. U%#t'$ Stat's.[143]This landmark case involved 3eynolds, a

ormon who proved that it was his religious duty to have several wives andthat the failure to practice polygamy by male members of his religion whencircumstances would permit would be punished with damnation in the life tocome. 3eynolds act of contracting a second marriage violated ection 121,3evised tatutes prohibiting and penali@ing bigamy, for which he wasconvicted. The "ourt affirmed 3eynolds conviction, using what in

!urisprudence would be called the ')#'


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that it is tie enough for the rightful purposes of civil governent for its officers

to interfere when principles brea out into overt acts against peace and good

order.3@5emphasis supplied7

The "ourt then held, viz?

Congress was deprived of all legislative power over ere opinion# but was left

free to reach actions which were in violation of social duties or subversive of good

order! ! !

4aws are ade for the governent of actions# and while they cannot interfere

with ere religious belief and opinions# they ay with practices! S#""ose o$e

belie!ed that h#'a$ sacri+ice )ere a $ecessar "art o+ reli*io#s )orshi", )o#ld it be

serio#sl co$te$ded that the ci!il *o!er$'e$t #$der )hich he li!ed co#ld $ot i$ter+ere

to "re!e$t a sacri+iceJ Or i+ a )i+e reli*io#sl belie!ed it )as her d#t to b#r$ hersel+

#"o$ the +#$eral "ile o+ her dead h#sba$d, )o#ld it be beo$d the "o)er o+ the ci!il*o!er$'e$t to "re!e$t her carri$* her belie+ i$to "racticeJ

So here, as a la) o+ the or*a$i-atio$ o+ societ #$der the e6cl#si!e do'i$io$ o+ the

U$ited States, it is "ro!ided that "l#ral 'arria*es shall $ot be allo)ed. Ca$ a 'a$

e6c#se his "ractices to the co$trar beca#se o+ his reli*io#s belie+J To "er'it this

)o#ld be to 'ae the "ro+essed doctri$es o+ reli*io#s belie+ s#"erior to the la) o+ the

la$d, a$d i$ e++ect to "er'it e!er citi-e$ to beco'e a la) #$to hi'sel+. Go!er$'e$t

co#ld e6ist o$l i$ $a'e #$der s#ch circ#'sta$ces. [1*&]

The construct was thus simple? the state was absolutely prohibited by the0ree /=ercise "lause from regulating individual religious beliefs, but placedno restriction on the ability of the state to regulate religiously motivatedconduct. It was logical for belief to be accorded absolute protection becauseany statute designed to prohibit a particular religious belief unaccompanied byany conduct would most certainly be motivated only by the legislaturespreference of a competing religious belief. Thus, all cases of regulation ofbelief would amount to regulation of religion for religious reasons violative ofthe 0ree /=ercise "lause. 6n the other hand, most state regulations ofconduct are for public welfare purposes and have nothing to do with the

legislatures religious preferences. Any burden on religion that results fromstate regulation of conduct arises only when particular individuals areengaging in the generally regulated conduct because of their particularreligious beliefs. These burdens are thus usually inadvertent and did notfigure in the ')#'


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proscription of actions even if considered central to a religion unless thelegislature formally outlawed the belief itself. [14!]

This ')#'


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!ie), esse$tial to e$li*hte$ed o"i$io$ a$d ri*ht co$d#ct o$ the "art o+ citi-e$s o+ a

de'ocrac.[155]

Ca%t-'))took a step forward from the protection afforded bythe R'7%0)$scas' in that it not only affirmed protection of belief but also

freedom to act for the propagation of that belief, viz?

Th#s the A'e$d'e$t e'braces t)o co$ce"ts +reedo' to belie!e a$d +reedo' to

act. The +irst is absol#te b#t, i$ the $at#re o+ thi$*s, the seco$d ca$$ot be. Co$d#ct

re'ai$s s#b=ect to re*#latio$ +or the "rotectio$ o+ societ. . . /n every case# the power

to regulate ust be so exercised as not# in attaining a perissible end# unduly to

infringe the protected freedo!5emphasis supplied73

The "ourt stated, however, that government had the power to regulate thetimes, places, and manner of solicitation on the streets and assure the peace

and safety of the community.

Three years after Ca%t-')), the "ourt in D0*)as &. C#t7 0 J'a%'tt',[15]ruled that police could not prohibit members of the +ehovahs


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the less odious because sanctioned by what any particular sect maydesignate as religion.$[161]

The ')#'


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discomforts of making the issue in this case, many citi@ens who do not sharethese religious views hold such a compulsory rite to infringe c0%st#t*t#0%a))#'(t7 0 t' #%$#$*a).9%emphasis supplied&[165]The "ourt pronounced,however, that, #freedoms of speech and of press, of assembly, and ofworship . . . are susceptible only of restriction only to prevent (a&' a%$#'$#at' $a%'( t0 #%t'('sts -#c t' stat' a7 )a-*))7+(0t'ct.$[166]The "ourt seemed to recogni@e the e=tent to which its approachin B0#t#ssubordinated the religious liberty of political minorities * a speciallyprotected constitutional value * to the common everyday economic and publicwelfare ob!ectives of the ma!ority in the legislature. This time, eveninadvertent interference with religion must pass !udicial scrutiny under the0ree /=ercise "lause with only grave and immediate danger sufficing tooverride religious liberty. (ut the seeds of this heightened scrutiny would onlygrow to a full flower in the 79Js.[16]

'early a century after R'7%0)$semployed the ')#'


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recourse in the upreme "ourt. In laying down the standard for determiningwhether the denial of benefits could withstand constitutional scrutiny, the"ourt ruled, viz?

Plai$l e$o#*h, a""ellee/s co$scie$tio#s ob=ectio$ to Sat#rda )or co$stit#tes $o

co$d#ct "ro'"ted b reli*io#s "ri$ci"les o+ a i$d )ithi$ the reach o+ statele*islatio$. I+, there+ore, the decisio$ o+ the So#th Caroli$a S#"re'e Co#rt is to

)ithsta$d a""ella$t/s co$stit#tio$al challe$*e, it '#st be either because her

dis$ualification as a beneficiary represents no infringeent by the tate of her

constitutional rights of free exercise# or because any incidental burden on the free

exercise of appellant.s religion ay be ustified by a -copelling state interest in

the regulation of a subect within the tate.s constitutional power to

regulate! ! !/ NAACP !. 8#tto$, >K3 US @3, @>2 4 L ed 1d @, @13, 2> S Ct >12.[1%3]5emphasis supplied7

T' C0*(t st('ss'$ tat #% t' a('a 0 (')##0*s )#'(t7, #t #s as#c tat #t #s%0t s*#c#'%t t0 '(')7 s0- a (at#0%a) (')at#0%s#+ 0 t' s*sta%t#a)#%(#%''%t t0 t' (')##0*s (#t a%$ a c0)0(a)' stat' #%t'('st. #%I&n thishighly sensitive constitutional area, [0]%)7the gravest abuses, endangeringparamount interests, give occasion for permissible limitation. Thomas v."ollins, 22 U 17J, 12, :9 4 ed H2, HH, J1 "t 271.$[14]The "ourt foundthat there was no such compelling state interest to override herbertsreligious liberty. It added that even if the state could show that herbertse=emption would pose serious detrimental effects to the unemploymentcompensation fund and scheduling of work, it was incumbent upon the stateto show that %0 a)t'(%at#&' 'a%s of regulations would address suchdetrimental effects without infringing religious liberty. The state, however, didnot discharge this burden. The "ourt thus carved out for herbert ane=emption from the aturday work requirement that caused herdisqualification from claiming the unemployment benefits. The "ourtreasoned that upholding the denial of herberts benefits would force her tochoose between receiving benefits and following her religion. This choiceplaced #the same kind of burden upon the free e=ercise of religion as would afine imposed against %her& for her aturday worship.$ This germinal case

of S'('(tfirmly established the e=emption doctrine,[15]

viz?

It is certai$ that $ot e!er co$scie$ce ca$ be acco''odated b all the la)s o+ the

la$d( but when general laws conflict with scruples of conscience# exeptions

ought to be granted unless soe -copelling state interest. intervenes!

Thus, in a short period of twenty*three years from B0#t#sto S'('(t 0('&'% as 'a()7 as (a*%')$,the "ourt moved from the doctrine that
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inadvertent or incidental interferences with religion raise no problem under the0ree /=ercise "lause to the doctrine that such interferences violate the 0ree/=ercise "lause in the absence of a compelling state interest * the highestlevel of constitutional scrutiny short of a holding of aper se violation. Thus,the problem posed by the ')#'


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8eightened scrutiny was also used in the 79- case of /#sc0%s#% &.G0$'([1!2]where the "ourt upheld the religious practice of the 6ld 6rder Amishfaith over the states compulsory high school attendance law. The Amishparents in this case did not permit secular education of their children beyondthe eighth grade. "hief +ustice (urger, writing for the ma!ority, held,viz?

It +ollo)s that i$ order +or 0isco$si$ to co'"el school atte$da$ce beo$d the ei*hth

*rade a*ai$st a clai' that s#ch atte$da$ce i$ter+eres )ith the "ractice o+ a le*iti'ate

reli*io#s belie+, it ust appear either that the tate does not deny the free exercise

of religious belief by its re$uireent# or that there is a state interest of sufficient

agnitude to override the interest claiing protection under the 6ree 7xercise

Clause! Lo$* be+ore there )as *e$eral ac$o)led*e'e$t o+ the $eed +or #$i!ersal

ed#catio$, the Reli*io$ Cla#ses had s"eciall a$d +ir'l +i6ed the ri*ht o+ +ree

e6ercise o+ reli*io#s belie+s, a$d b#ttressi$* this +#$da'e$tal ri*ht )as a$ e#all

+ir', e!e$ i+ less e6"licit, "rohibitio$ a*ai$st the establish'e$t o+ a$ reli*io$. The

!al#es #$derli$* these t)o "ro!isio$s relati$* to reli*io$ ha!e bee$ -ealo#sl

"rotected, so'eti'es e!e$ at the e6"e$se o+ other i$terests o+ ad'ittedl hi*h social

i'"orta$ce. . .

The esse$ce o+ all that has bee$ said a$d )ritte$ o$ the s#b=ect is that only those

interests of the highest order and those not otherwise served can overbalance

legitiate clais to the free exercise of religion!. .

. . . o#r decisio$s ha!e re=ected the idea that that reli*io#sl *ro#$ded co$d#ct is

al)as o#tside the "rotectio$ o+ the Free E6ercise Cla#se. It is tr#e that acti!ities o+

i$di!id#als, e!e$ )he$ reli*io#sl based, are o+te$ s#b=ect to re*#latio$ b the States

i$ the e6ercise o+ their #$do#bted "o)er to "ro'ote the health, sa+et, a$d *e$eral

)el+are, or the Federal *o!er$'e$t i$ the e6ercise o+ its dele*ated "o)ers . . .,ut to

agree that religiously grounded conduct ust often be subect to the broad police

power of the tate is not to deny that there are areas of conduct protected by the

6ree 7xercise Clause of the 6irst "endent and thus beyond the power of the

tate to control# even under regulations of general applicability. . . .This case,

there+ore, does $ot beco'e easier beca#se res"o$de$ts )ere co$!icted +or their

:actio$s< i$ re+#si$* to se$d their childre$ to the "#blic hi*h school( i$ this co$te6t

belie+ a$d actio$ ca$$ot be $eatl co$+i$ed i$ lo*icti*ht co'"art'e$ts. . . 32>

T' 0%s't 0 t' 1""s, 0-'&'(, sa- a a80( s'tac> #% t'+(0t'ct#0% a0($'$ 7 t' F('' E;'(c#s' C)a*s'. InE+)07'%tD#s#0%, O('0% D'+a(t'%t 0 *a% R's0*(c's &. S#t,[1!4]the sharplydivided R'%*#stC0*(tdramatically $'+a(t'$from the heightened scrutinyand compelling !ustification approach and imposed serious limits on the scopeof protection of religious freedom afforded by the 0irst Amendment. In this
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case, the well*established practice of the 'ative American "hurch, a sectoutside the +udeo*"hristian mainstream of American religion, came in conflictwith the states interest in prohibiting the use of illicit drugs. 6regonscontrolled substances statute made the possession of peyote a criminaloffense. Two members of the church, mith and (lack, worked as drugrehabilitation counselors for a private social service agency in 6regon. Alongwith other church members, mith and (lack ingested peyote, ahallucinogenic drug, at a sacramental ceremony practiced by 'ative

Americans for hundreds of years. The social service agency fired mith and(lack citing their use of peyote as #!ob*related misconduct$. They applied forunemployment compensation, but the 6regon /mployment Appeals (oarddenied their application as they were discharged for !ob*related misconduct.+ustice calia, writing for the ma!ority, ruled that @# +(0##t#% t' ';'(c#s'0 (')##0% . . . #s . . . '(')7 t' #%c#$'%ta) ''ct 0 a '%'(a))7 a++)#ca)'a%$ 0t'(-#s' &a)#$ )a-, t' F#(st A'%$'%t as %0t ''% 0'%$'$.9Inother words, the 0ree /=ercise "lause would be offended only if a particularreligious practice were singled out for proscription. The ma!ority opinion reliedheavily on the R'7%0)$s cas'and in effect, equated 6regons drugprohibition law with the anti*polygamy statute inR'7%0)$s. The relevantportion of the ma!ority opinion held, viz?

0e ha!e $e!er i$!alidated a$ *o!er$'e$tal actio$ o$ the basis o+ the Sherberttest

e6ce"t the de$ial o+ #$e'"lo'e$t co'"e$satio$.

E!e$ i+ )e )ere i$cli$ed to breathe i$to Sherbertso'e li+e beo$d the #$e'"lo'e$t

co'"e$satio$ +ield, )e )o#ld $ot a""l it to re#ire e6e'"tio$s +ro' a *e$erall

a""licable cri'i$al la). . .

e conclude today that the sounder approach# and the approach in accord with

the vast aority of our precedents# is to hold the test inapplicable to such

challenges! The *o!er$'e$t/s abilit to e$+orce *e$erall a""licable "rohibitio$s o+

sociall har'+#l co$d#ct, lie its abilit to carr o#t other as"ects o+ "#blic "olic,

:ca$$ot de"e$d o$ 'eas#ri$* the e++ects o+ a *o!er$'e$tal actio$ o$ a reli*io#s

ob=ector/s s"irit#al de!elo"'e$t.< . . .'o ae an individual.s obligation to obey

such a law contingent upon the law.s coincidence with his religious beliefs except

where the tate.s interest is 8copelling9 : peritting hi# by virtue of his

beliefs# 8to becoe a law unto hiself#9 ! ! ! : contradicts both constitutional

tradition and coon sense!

+ustice 6"onnor wrote a concurring opinion pointing out that thema!oritys re!ection of the compelling governmental interest test was the mostcontroversial part of the decision. Although she concurred in the result that the


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0ree /=ercise "lause had not been offended, she sharply critici@ed thema!ority opinion as a dramatic departure #from well*settled 0irst Amendment

!urisprudence. . . and . . . %as& incompatible with our 'ations fundamentalcommitment to religious liberty.$ This portion of her concurring opinion wassupported by +ustices (rennan, arshall and (lackmun who dissented fromthe "ourts decision. +ustice 6"onnor asserted that @t' c0+'))#% stat'#%t'('st t'st ''ct*at's t' F#(st A'%$'%t=s c0a%$ tat (')##0*s)#'(t7 #s a% #%$'+'%$'%t )#'(t7, tat #t 0cc*+#'s a +(''(('$ +0s#t#0%,a%$ tat t' C0*(t -#)) %0t +'(#t '%c(0ac'%ts *+0% t#s )#'(t7,-'t'( $#('ct 0( #%$#('ct, *%)'ss ('*#('$ 7 c)'a( a%$ c0+'))#%0&'(%'%t #%t'('st H0 t' #'st 0($'(=.$ +ustice (lackmun registered aseparate dissenting opinion, !oined by +ustices (rennan and arshall. 8echarged the ma!ority with #mischaracteri@ing$ precedents and #overturning. . .settled law concerning the 3eligion "lauses of our "onstitution.$ 8e pointedout that the 'ative American "hurch restricted and supervised thesacramental use of peyote. Thus, the state had no significant health or safety

!ustification for regulating the sacramental drug use. 8e also observed that6regon had not attempted to prosecute mith or (lack, or any 'ative

Americans, for that matter, for the sacramental use of peyote. In conclusion,he said that #6regons interest in enforcing its drug laws against religious useof peyote %was& not sufficiently compelling to outweigh respondents right tothe free e=ercise of their religion.$

The "ourt went back to the R'7%0)$sand B0#t#sdoctrine in S#t. The"ourts standard in S#tvirtually eliminated the requirement that the

government !ustify with a compelling state interest the burdens on religiouse=ercise imposed by laws neutral toward religion. The S#t $0ct(#%'ishighly unsatisfactory in several respects and has been critici@ed as e=hibitinga shallow understanding of free e=ercise !urisprudence.[1!5]0irst, the 0irstamendment was intended to protect minority religions from the tyranny of thereligious and political ma!ority. A deliberate regulatory interference withminority religious freedom is the worst form of this tyranny. (ut regulatoryinterference with a minority religion as a result of ignorance or sensitivity ofthe religious and political ma!ority is no less an interference with the minoritysreligious freedom. If the regulation had instead restricted the ma!oritys

religious practice, the ma!oritarian legislative process would in all probabilityhave modified or re!ected the regulation. Thus, the imposition of the politicalma!oritys non*religious ob!ectives at the e=pense of the minoritys religiousinterests implements the ma!oritys religious viewpoint at the e=pense of theminoritys. econd, government impairment of religious liberty would mostoften be of the inadvertent kind as in S#tconsidering the political culturewhere direct and deliberate regulatory imposition of religious orthodo=y is
http://sc.judiciary.gov.ph/jurisprudence/2003/aug2003/am_p_02_1651.htm#_ftn185http://sc.judiciary.gov.ph/jurisprudence/2003/aug2003/am_p_02_1651.htm#_ftn185


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nearly inconceivable. If the 0ree /=ercise "lause could not afford protection toinadvertent interference, it would be left almost meaningless. Third,the R'7%0)$s


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ma!ority, carefully pointed out that the questioned ordinance was not agenerally applicable criminal prohibition, but instead singled out practitionersof the anteria in that it forbade animal slaughter only insofar as it took placewithin the conte=t of religious rituals.

It may be seen from the foregoing cases that under the 0ree /=ercise"lause, religious belief is absolutely protected, religious speech andproselyti@ing are highly protected but sub!ect to restraints applicable to non*religious speech, and unconventional religious practice receives lessprotectionE nevertheless conduct, even if its violates a law, could be accordedprotection as shown in /#sc0%s#%.[1"4]

. Esta)#s'%t C)a*s'

The "ourts #(st '%c0*%t'(with the /stablishment "lause was in the79H- case of E&'(s0% &. 0a($ 0 E$*cat#0%.[1"5])rior cases had madepassing reference to the /stablishment "lause[1"6]and raised establishmentquestions but were decided on other grounds.[1"]It was in the E&'(s0%cas'that the U.. upreme "ourt adopted +effersons metaphor of #a wall ofseparation between church and state$ as encapsulating the meaning of the/stablishment "lause. The often and loosely used phrase #separation ofchurch and state$ does not appear in the U.. "onstitution. It became part ofU.. !urisprudence when the "ourt in the 7:-: case of R'7%0)$s &. U%#t'$Stat's[1"!]quoted +effersons famous letter of 7: to the >anbury (aptist

Association in narrating the history of the religion clauses, viz?

8elie!i$* )ith o# that reli*io$ is a 'atter )hich lies solel bet)ee$ 'a$ a$d his

God( that he o)es acco#$t to $o$e other +or his +aith or his )orshi"( that the

le*islati!e "o)ers o+ the Go!er$'e$t reach actio$s o$l, a$d $ot o"i$io$s, I

co$te'"late )ith so!erei*$ re!ere$ce that act o+ the )hole A'erica$ "eo"le )hich

declared that their Le*islat#re sho#ld 'ae $o la) res"ecti$* a$ establish'e$t o+

reli*io$ or "rohibiti$* the +ree e6ercise thereo+,/ th#s b#ildi$* a wall of separation

between Church and tate![1++]5emphasis supplied7

"hief +ustice


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prayer in public schools.[21]InE&'(s0% &. 0a($ 0 E$*cat#0%,for e=ample,the issue was whether a 'ew +ersey local school board could reimburseparents for e=penses incurred in transporting their children to and from"atholic schools. The reimbursement was part of a general program underwhich all parents of children in public schools and nonprofit private schools,regardless of religion, were entitled to reimbursement for transportationcosts. +ustice 8ugo (lack, writing for a sharply divided "ourt, !ustified thereimbursements on the c#)$ '%'#t t'0(7, i.e., that the school board wasmerely furthering the states legitimate interest in getting children #regardlessof their religion, safely and e=peditiously to and from accredited schools.$ The"ourt, after narrating the history of the 0irst Amendment in Girginia,interpreted the /stablishment "lause, viz?

The establish'e$t o+ reli*io$/ cla#se o+ the First A'e$d'e$t 'ea$s at least this?

Neither a state $or the Federal Go!er$'e$t ca$ set #" a ch#rch. ;either can pass

laws which aid one religion# aid all religions# or prefer one religion over

another! Neither ca$ +orce $or i$+l#e$ce a "erso$ to *o to or re'ai$ a)a +ro'

ch#rch a*ai$st his )ill or +orce hi' to "ro+ess a belie+ or disbelie+ i$ a$ reli*io$. No

"erso$ ca$ be "#$ished +or e$tertai$i$* or "ro+essi$* reli*io#s belie+s or disbelie+s,

+or ch#rch atte$da$ce or $o$atte$da$ce. No ta6 i$ a$ a'o#$t, lar*e or s'all, ca$ be

le!ied to s#""ort a$ reli*io#s acti!ities or i$stit#tio$s, )hate!er the 'a be called,

or )hate!er +or' the 'a ado"t to teach or "ractice reli*io$. Neither a state $or the

Federal Go!er$'e$t ca$, o"e$l or secretl "artici"ate i$ the a++airs o+ a$ reli*io#s

or*a$i-atio$s or *ro#"s a$d !ice !ersa. /n the words of


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/stablishment "lause. @F#(st, t' stat*t' *st a&' a s'c*)a( )'#s)at#&'+*(+0s' s'c0%$, #ts +(#a(7 0( +(#%c#+a) ''ct *st ' 0%' tat %'#t'(a$&a%c's %0( #%##ts (')##0% 0a($ 0 E$*cat#0% &. A))'%, 3"2 US 236,243, 2 L E$ 2$ 16, 165, !! S Ct 1"23 [1"6!] #%a))7, t' stat*t' *st%0t 0st'( Ha% ';c'ss#&' '%ta%)''%t -#t (')##0%.= /a)? &.Ta;C0#ss#0%, 3" US 664, 66!, 25 L E$ 2$ 6", 1, " S Ct 14"[1"]9%emphasis supplied&[25]Using this test, the "ourt held that the)ennsylvania statutory program and 3hode Island statute wereunconstitutional as fostering e=cessive entanglement between governmentand religion.

The most controversial of the education cases involving the /stablishment"lause are the school prayer decisions. #0ew decisions of the modernupreme "ourt have been critici@ed more intensely than the school prayerdecisions of the early 79Js.$[26]In the 79J case of E%') &. #ta)',[2]the

"ourt invalidated a 'ew Fork (oard of 3egents policy that established thevoluntary recitation of a brief generic prayer by children in the public schoolsat the start of each school day. The ma!ority opinion written by +ustice (lackstated that #in this country it is no part of the business of government tocompose official prayers for any group of the American people to recite as partof a religious program carried on by government.$ In fact, history shows thatthis very practice of establishing governmentally composed prayers forreligious services was one of the reasons that caused many of the earlycolonists to leave /ngland and seek religious freedom in America. The "ourtcalled to mind that the first and most immediate purpose of the /stablishment

"lause rested on the belief that a union of government and religion tends todestroy government and to degrade religion. The following year, the E%')$'c#s#0%was reinforced #% A#%t0% Sc00) D#st(#ct &.Sc'++[2!]and *((a7 &. C*()'tt[2"]where the "ourt struck down the practiceof (ible reading and the recitation of the 4ords prayer in the )ennsylvaniaand aryland schools. The "ourt held that to withstand the strictures of the/stablishment "lause, a statute must have a secular legislative purpose and aprimary effect that neither advances nor inhibits religion. It reiterated, viz?

The )holeso'e $e#tralit/ o+ )hich this Co#rt/s cases s"ea th#s ste's +ro' a

reco*$itio$ o+ the teachi$*s o+ histor that "o)er+#l sects or *ro#"s 'i*ht bri$* abo#ta +#sio$ o+ *o!er$'e$tal a$d reli*io#s +#$ctio$s or a co$cert or de"e$de$c o+ o$e

#"o$ the other to the e$d that o++icial s#""ort o+ the State o+ Federal Go!er$'e$t

)o#ld be "laced behi$d the te$ets o+ o$e or o+ all orthodo6ies. This the Establish'e$t

Cla#se "rohibits. A$d a +#rther reaso$ +or $e#tralit is +o#$d i$ the Free E6ercise

Cla#se, )hich reco*$i-es the !al#e o+ reli*io#s trai$i$*, teachi$* a$d obser!a$ce a$d,


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'ore "artic#larl, the ri*ht o+ e!er "erso$ to +reel choose his o)$ co#rse )ith

re+ere$ce thereto, +ree o+ a$ co'"#lsio$ +ro' the state. [210]

The school prayer decisions drew furious reactions. 3eligious leaders andconservative members of "ongress and resolutions passed by several state

legislatures condemned these decisions.[211]6n several occasions,constitu

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