How Religious Freedom How Religious Freedom can prevail over State can prevail over State

Authority:Authority:

The landmark case of The landmark case of Estrada v. EscritorEstrada v. Escritor

JUDGE MARIA ELISA S. DIYJUDGE MARIA ELISA S. DIY

1987 Philippine Constitution1987 Philippine Constitution

Section 5.Section 5.

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

1987 Philippine Constitution1987 Philippine Constitution

Section 12. Section 12.

The State recognizes the sanctity of family The State recognizes the sanctity of family life and shall protect and strengthen the life and shall protect and strengthen the family as a basic autonomous social family as a basic autonomous social institution. It shall equally protect the life of institution. It shall equally protect the life of the mother and the life of the unborn from the mother and the life of the unborn from conception. The natural and primary right conception. The natural and primary right and duty of parents in the rearing of the and duty of parents in the rearing of the youth for civic efficiency and the youth for civic efficiency and the development of moral character shall development of moral character shall receive the support of the Government.receive the support of the Government.

The Family Code of the Philippines The Family Code of the Philippines

Article 1. Article 1.

Marriage is a special contract of permanent Marriage is a special contract of permanent union between a man and a woman entered union between a man and a woman entered into in accordance with law for the into in accordance with law for the establishment of conjugal and family life. It is establishment of conjugal and family life. It is the foundation of the family and an inviolable the foundation of the family and an inviolable social institution whose nature, social institution whose nature, consequences, and incidents are governed by consequences, and incidents are governed by law and not subject to stipulation, except that law and not subject to stipulation, except that marriage settlements may fix the property marriage settlements may fix the property relations during the marriage within the limits relations during the marriage within the limits provided by this Code. provided by this Code.

Estrada vs. EscritorEstrada vs. Escritor (A.M. No. P-02-1651 August 4, 2003 (A.M. No. P-02-1651 August 4, 2003

& June 22, 2006)& June 22, 2006) Created a glorious impact in the Created a glorious impact in the

necessary balance between State necessary balance between State Authority and Authority and Freedom of ReligionFreedom of Religion

Foreseen that this precedent shall Foreseen that this precedent shall pave the way for stronger emphasis pave the way for stronger emphasis and respect for and respect for Religious FreedomReligious Freedom

Re: Estrada vs. EscritorRe: Estrada vs. EscritorDECLARATION OF PLEDGING FAITHFULNESSDECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my marital relationship; that I have done all within my ability to obtain legal recognition of this relationship ability to obtain legal recognition of this relationship by the proper public authorities and that it is by the proper public authorities and that it is because of having been unable to do so that I because of having been unable to do so that I therefore make this public declaration pledging therefore make this public declaration pledging faithfulness in this marital relationship. faithfulness in this marital relationship. I recognize this relationship as a binding tie before I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to be held to 'Jehovah' God and before all persons to be held to and honored in full accord with the principles of and honored in full accord with the principles of God's Word. I will continue to seek the means to God's Word. I will continue to seek the means to obtain legal recognition of this relationship by the obtain legal recognition of this relationship by the civil authorities and if at any future time a change in civil authorities and if at any future time a change in circumstances make this possible, I promise to circumstances make this possible, I promise to legalize this union. legalize this union. Signed this 28th day of July 1991.Signed this 28th day of July 1991.

Re: Estrada vs. EscritorRe: Estrada vs. Escritor Escritor's partner, Quilapio, executed a Escritor's partner, Quilapio, executed a

similar pledge on the same day. similar pledge on the same day. Both pledges were executed in Both pledges were executed in

Atimonan, Quezon and signed by three Atimonan, Quezon and signed by three witnesses. witnesses.

At the time Escritor executed her At the time Escritor executed her pledge, her husband was still alive but pledge, her husband was still alive but living with another woman. living with another woman.

Quilapio was likewise married at that Quilapio was likewise married at that time, but had been separated in fact time, but had been separated in fact from his wife. from his wife.

Re: Estrada vs. EscritorRe: Estrada vs. EscritorIssueIssue::

Whether or not respondent should be Whether or not respondent should be found guilty of the administrative found guilty of the administrative charge of “gross and immoral conduct”. charge of “gross and immoral conduct”.

Sub-issue:Sub-issue:

Whether or not respondent's right to religious Whether or not respondent's right to religious freedom should carve out an exception from freedom should carve out an exception from the prevailing jurisprudence on illicit relations the prevailing jurisprudence on illicit relations for which government employees are held for which government employees are held administratively liable. administratively liable.

Free Exercise Clause and Free Exercise Clause and Establishment Clause Establishment Clause

Found in Section 5, Article III of the 1987 Found in Section 5, Article III of the 1987 ConstitutionConstitution

Philippine Jurisprudence RevisitedPhilippine Jurisprudence Revisited1) 1) Aglipay v. RuizAglipay v. Ruiz

> Religion, defined> Religion, defined2) 2) Gerona v. Sec. of EducationGerona v. Sec. of Education

> Interpreting the free exercise clause> Interpreting the free exercise clause

Free Exercise Clause and Free Exercise Clause and Establishment ClauseEstablishment Clause

Philippine Jurisprudence RevisitedPhilippine Jurisprudence Revisited3) 3) American Bible Society v. City of ManilaAmerican Bible Society v. City of Manila

> Religious Speech; right to > Religious Speech; right to disseminate religious informationdisseminate religious information

4) 4) Tolentino v. Sec. of FinanceTolentino v. Sec. of Finance > Tax imposed on sale of religious > Tax imposed on sale of religious materialsmaterials

5) Victoriano v. Elizalde Rope Workers 5) Victoriano v. Elizalde Rope Workers UnionUnion > Establishment Clause> Establishment Clause

Free Exercise Clause and Free Exercise Clause and Establishment ClauseEstablishment Clause

Tests in determining when religious freedom may be Tests in determining when religious freedom may be validly limited: validly limited:

1)1) ““Immediate and grave danger to the security and Immediate and grave danger to the security and welfare of the community” and “infringement of welfare of the community” and “infringement of religious freedom only to the smallest extent religious freedom only to the smallest extent necessary” necessary”

2)2) Religious exercise may be indirectly burdened by a Religious exercise may be indirectly burdened by a general law which has for its purpose and effect the general law which has for its purpose and effect the advancement of the state’s secular goals, provided advancement of the state’s secular goals, provided that there is no other means by which the state can that there is no other means by which the state can accomplish this purpose without imposing such accomplish this purpose without imposing such burdenburden

3)3) The “compelling state interest” test which grants The “compelling state interest” test which grants exemptions when general laws conflict with religious exemptions when general laws conflict with religious exercise, unless a compelling state interest exercise, unless a compelling state interest intervenes intervenes

Free Exercise Clause and Free Exercise Clause and Establishment ClauseEstablishment Clause

Philippine Jurisprudence RevisitedPhilippine Jurisprudence Revisited6) 6) J.B.L. Reyes v. BagatsingJ.B.L. Reyes v. Bagatsing

> Freedom of worship in relation to > Freedom of worship in relation to freedom of expression, speech, and freedom of expression, speech, and peaceable assemblypeaceable assembly

7) 7) Ebralinag v. Division Superintendent Ebralinag v. Division Superintendent of Schoolsof Schools

> Exemption from the flag ceremony > Exemption from the flag ceremony

Free Exercise Clause and Free Exercise Clause and Establishment ClauseEstablishment Clause

Philippine Jurisprudence RevisitedPhilippine Jurisprudence Revisited8) 8) Iglesia ni Cristo v. Court of AppealsIglesia ni Cristo v. Court of Appeals > The “clear and present danger” test> The “clear and present danger” test9) 9) Pamil v. Teleron, et al.Pamil v. Teleron, et al. > Disqualifying ecclesiastics from > Disqualifying ecclesiastics from

appointment or electionappointment or election10) 10) Fonacier v. Court of AppealsFonacier v. Court of Appeals > Right of control over certain > Right of control over certain

propertiesproperties

Free Exercise Clause and Free Exercise Clause and Establishment Clause Establishment Clause

The case survey in The case survey in EstradaEstrada demonstrated two main standards demonstrated two main standards used by the court in deciding used by the court in deciding religious clause cases:religious clause cases:

1) Strict Neutrality 1) Strict Neutrality 2) Benevolent Neutrality2) Benevolent Neutrality

Strict Neutrality Strict Neutrality vs. Benevolent Neutrality vs. Benevolent Neutrality

STRICT NEUTRALITYSTRICT NEUTRALITY Otherwise known as separation, Otherwise known as separation,

strict or tamestrict or tame The weight of current authority, The weight of current authority,

judicial and in terms of sheer volume, judicial and in terms of sheer volume, appears to lie with the separationistsappears to lie with the separationists

Protects the principle of church-state Protects the principle of church-state separation with a rigid reading of the separation with a rigid reading of the principle principle

Strict Neutrality Strict Neutrality vs. Benevolent Neutralityvs. Benevolent Neutrality

BENEVOLENT NEUTRALITY BENEVOLENT NEUTRALITY Protects religious realities, tradition and Protects religious realities, tradition and

established practice with a flexible reading established practice with a flexible reading of the principleof the principle

Suggesting a preference for accommodating Suggesting a preference for accommodating over inhibiting religionover inhibiting religion

Congruent with the sociological proposition Congruent with the sociological proposition that religion serves a function essential to that religion serves a function essential to the survival of society itselfthe survival of society itself

Thus, there is no human society Thus, there is no human society without one or more ways of without one or more ways of performing the essential function of performing the essential function of religionreligion

Benevolent NeutralityBenevolent Neutrality Philippine jurisdiction adopts the Philippine jurisdiction adopts the

benevolent neutrality approachbenevolent neutrality approach Constitutional history and Constitutional history and

interpretation indubitably show interpretation indubitably show benevolent neutrality as the benevolent neutrality as the launching pad from which the Court launching pad from which the Court should take off in interpreting should take off in interpreting religion clause casesreligion clause cases

Benevolent NeutralityBenevolent Neutrality

This approach is directed in the This approach is directed in the protection of religious liberty protection of religious liberty

not only for a minority, however small, not only for a minority, however small, not only for a majority, however large,not only for a majority, however large,

but for each of us to the greatest but for each of us to the greatest extent possible within flexible extent possible within flexible

constitutional limits.constitutional limits.

Benevolent NeutralityBenevolent Neutrality The Supreme Court subjected the The Supreme Court subjected the

claim of religious freedom to theclaim of religious freedom to the

““Compelling State Interest” TestCompelling State Interest” Test1)1) The first inquiry is whether The first inquiry is whether

respondent's right to religious respondent's right to religious freedom has been burdened freedom has been burdened

2)2) The second step is to ascertain The second step is to ascertain respondent's sincerity in her respondent's sincerity in her religious belief religious belief

Re: Estrada vs. EscritorRe: Estrada vs. Escritor Escritor’s conjugal arrangement cannot be Escritor’s conjugal arrangement cannot be

penalized as she has made out a case for penalized as she has made out a case for exemption from the law based on her exemption from the law based on her fundamental right to freedom of religion.fundamental right to freedom of religion.

The Court recognizes that state interests The Court recognizes that state interests must be upheld in order that freedoms - must be upheld in order that freedoms - including religious freedom - may be including religious freedom - may be enjoyed. In the area of religious exercise as enjoyed. In the area of religious exercise as a preferred freedom, In the absence of a a preferred freedom, In the absence of a showing that such state interest exists, man showing that such state interest exists, man must be allowed to subscribe to the Infinite.must be allowed to subscribe to the Infinite.

Re: Estrada vs. EscritorRe: Estrada vs. Escritor

Both criminal and administrative Both criminal and administrative complaints against Soledad complaints against Soledad Escritor were Escritor were DISMISSEDDISMISSED..

EPILOGUEEPILOGUE The Constitution focuses on the The Constitution focuses on the “family” as the basic autonomous social “family” as the basic autonomous social institution, and not on “marriage” institution, and not on “marriage” which is merely a statutory concept. which is merely a statutory concept.

Similarly, a statutory concept cannot Similarly, a statutory concept cannot prevail over a fundamental right under prevail over a fundamental right under the Constitution, more particularly the the Constitution, more particularly the Freedom of Religion. Freedom of Religion.