12 - Estrada v. Escritor

A.M. No. P-02-1651. June 22, 2006.
* interpretation which has long attained finality, it also runs counter to

(Formerly OCA I.P.I. No. 00-1021-P) substantive due process.
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, Constitutional Law; Freedom of Religion; Free Exercise Clause and
respondent. Establishment Clause; Words and Phrases; In simplest terms, the Free
Actions; Judgments; Law of the Case; The issues which have already Exercise Clause prohibits government from inhibiting religious beliefs with
been ruled upon prior to the remand of a case constitute “the law of the case” penalties for religious beliefs and practice, while the Establishment Clause
insofar as they resolved the issues of which framework and test are to be prohibits government from inhibiting religious belief with rewards for
applied in this case, and no motion for its reconsideration having been religious beliefs and practices.—The Establishment and Free Exercise
filed.—It bears stressing, therefore, that the residual issues of the case Clauses, it should be noted, were not designed to serve contradictory
pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN purposes. They have a single goal—to promote freedom of individual
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER religious beliefs and practices. In simplest terms, the Free Exercise Clause
TEST APPLICA- prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the Establishment Clause prohibits
_______________ government from inhibiting religious belief with rewards for religious
3
* EN BANC. VOL. 492, JUNE 22, 2006 3
2 Estrada vs. Escritor
2 SUPREME COURT REPORTS ANNOTATED beliefs and practices. In other words, the two religion clauses were
Estrada vs. Escritor intended to deny government the power to use either the carrot or the stick
BLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON to influence individual religious beliefs and practices.
FREEDOM OF RELIGION. These issues have already been ruled upon Same; Same; Strains of U.S. Jurisprudence on the Religion
prior to the remand, and constitute “the law of the case” insofar as they Clauses; U.S. history has produced two identifiably different, even
resolved the issues of which framework and test are to be applied in this opposing, strains of jurisprudence on the religion clauses—the first is the
case, and no motion for its reconsideration having been filed. The only task standard of separation, which may take the form of either (a) strict
that the Court is left to do is to determine whether the evidence adduced separation or (b) the tamer version of strict neutrality or separation, and,
by the State proves its more compelling interest. This issue involves a pure the second standard, the benevolent neutrality or accommodation.—U.S.
question of fact. history has produced two identifiably different, even opposing, strains of
Same; Same; Same; Due Process; Since neither the complainant, jurisprudence on the religion clauses. First is the standard of separation,
respondent nor the government has filed a motion for reconsideration which may take the form of either (a) strict separation or (b) the tamer
assailing the ruling in this case, the same has attained finality and version of strict neutrality or separation, or what Mr. Justice Carpio refers
constitutes the law of the case—any attempt to reopen this final ruling to as the second theory of governmental neutrality. Although the latter
constitutes a crass contravention of elementary rules of procedure, and form is not as hostile to religion as the former, both are anchored on the
insofar as it would overturn the parties’ right to rely upon the Court’s Jeffersonian premise that a “wall of separation” must exist between the
interpretation which has long attained finality, it also runs counter to state and the Church to protect the state from the church. Both protect the
substantive due process.—Mr. Justice Carpio’s insistence, in his dissent, in principle of church-state separation with a rigid reading of the principle.
attacking the ruling of this case interpreting the religious clauses of the On the other hand, the second standard, the benevolent
Constitution, made more than two years ago, is misplaced to say the least. neutrality or accommodation, is buttressed by the view that the wall of
Since neither the complainant, respondent nor the government has filed a separation is meant to protect the church from the state. A brief review of
motion for reconsideration assailing this ruling, the same has attained each theory is in order.
finality and constitutes the law of the case. Any attempt to reopen this final Same; Same; Same; Strict Separation; Words and Phrases; The Strict
ruling constitutes a crass contravention of elementary rules of procedure. Separationist believes that the Establishment Clause was meant to protect
Worse, insofar as it would overturn the parties’ right to rely upon our the state from the church, and the state’s hostility towards religion allows
no interaction between the two.—The Strict Separationist believes that the
1
Establishment Clause was meant to protect the state from the church, and active, hostility to the religious” which is prohibited by the Constitution.
the state’s hostility towards religion allows no interaction between the two. Professor Laurence Tribe commented in his authoritative treatise, viz.: To
According to this Jeffersonian view, an absolute barrier to formal most observers. . . strict neutrality has seemed incompatible with the very
interdependence of religion and state needs to be erected. Religious idea of a free exercise clause. The Framers, whatever specific applications
institutions could not receive aid, whether direct or indirect, from the state. they may have intended, clearly envisioned religion as something special;
Nor could the state adjust its secular programs to alleviate burdens the they enacted that vision into law by guaranteeing the free exercise of
programs placed on believers. Only the complete separation of religion religion but not, say, of philosophy or science. The strict neutrality
from politics would eliminate the formal influence of religious institutions approach all but erases this distinction. Thus it is
and provide for a free choice among political views, thus a strict “wall of 5
separation” is necessary. VOL. 492, JUNE 22, 2006 5
4
Estrada vs. Escritor
4 SUPREME COURT REPORTS ANNOTATED not surprising that the [U.S.] Supreme Court has rejected strict
Estrada vs. Escritor neutrality, permitting and sometimes mandating religious classifications.
Same; Same; Same; Same; Unlike the strict separationists, the strict Same; Same; Same; Benevolent Neutrality or Accommodation; Words
neutrality view, which is a tamer version of the strict separationist view, and Phrases; The theory of benevolent neutrality or accommodation is
believes that the “wall of separation” does not require the state to be their premised on a different view of the “wall of separation,” in that, unlike the
adversary—rather, the state must be neutral in its relations with groups of Jeffersonian wall that is meant to protect the state from the church, the wall
religious believers and non-believers. “State power is no more to be used so is meant to protect the church from the state.—The theory of benevolent
as to handicap religions than it is to favor them.”—The tamer version of the neutrality or accommodation is premised on a different view of the “wall of
strict separationist view, the strict neutrality or separationist view, (or, separation,” associated with Williams, founder of the Rhode Island colony.
the governmental neutrality theory) finds basis in Everson v. Board of Unlike the Jeffersonian wall that is meant to protect the state from the
Education, 330 U.S. 1 (1946), where the Court declared that Jefferson’s church, the wall is meant to protect the church from the state. Benevolent
“wall of separation” encapsulated the meaning of the First Amendment. neutrality recognizes that religion plays an important role in the public life
However, unlike the strict separationists, the strict neutrality view believes of the United States as shown by many traditional government practices
that the “wall of separation” does not require the state to be their which, to strict neutrality, pose Establishment Clause questions. Among
adversary. Rather, the state must be neutral in its relations with groups of these are the inscription of “In God We Trust” on American currency; the
religious believers and non-believers. “State power is no more to be used so recognition of America as “one nation under God” in the official pledge of
as to handicap religions than it is to favor them.” The strict allegiance to the flag; the Supreme Court’s time-honored practice of
neutrality approach is not hostile to religion, but it is strict in holding that opening oral argument with the invocation “God save the United States
religion may not be used as a basis for classification for purposes of and this Honorable Court”; and the practice of Congress and every state
governmental action, whether the action confers rights or privileges or legislature of paying a chaplain, usually of a particular Protestant
imposes duties or obligations. Only secular criteria may be the basis of denomination, to lead representatives in prayer. These practices clearly
government action. It does not permit, much less show the preference for one theological viewpoint—the existence of and
require, accommodation of secular programs to religious belief. potential for intervention by a god—over the contrary theological viewpoint
Same; Same; Same; Same; The problem with the strict neutrality of atheism. Church and government agencies also cooperate in the building
approach, however, is if applied in interpreting the Establishment Clause, of low-cost housing and in other forms of poor relief, in the treatment of
it could lead to a de facto voiding of religious expression in the Free Exercise alcoholism and drug addiction, in foreign aid and other government
Clause.—The problem with the strict neutrality approach, however, is if activities with strong moral dimension.
applied in interpreting the Establishment Clause, it could lead to a de Same; Same; Same; Same; The benevolent neutrality theory believes
facto voiding of religious expression in the Free Exercise Clause. As that with respect to these governmental actions, accommodation of religion
pointed out by Justice Goldberg in his concurring opinion in Abington may be allowed, not to promote the government’s favored form of religion,
School District v. Schempp, 374 U.S. 203 (1963), strict neutrality could lead but to allow individuals and groups to exercise their religion without
to “a brooding and pervasive devotion to the secular and a passive, or even hindrance; What is sought under the theory of accommodation is not a
2
declaration of unconstitutionality of a facially neutral law, but an interpretation of the same. Unlike in the U.S. where legislative exemptions
exemption from its application or its “burdensome effect,” whether by the of religion had to be upheld by the U.S. Supreme Court as constituting
legislature or the courts.—But the more difficult religion cases involve 7
legislative acts which have a VOL. 492, JUNE 22, 2006 7
6
6 SUPREME COURT REPORTS ANNOTATED permissive accommodations, similar exemptions for religion
Estrada vs. Escritor are mandatory accommodations under our own constitutions. Thus, our
secular purpose and general applicability, but may incidentally or 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of
inadvertently aid or burden religious exercise. Though the government church property, salary of religious officers in government institutions, and
action is not religiously motivated, these laws have a “burdensome effect” optional religious instruction. Our own preamble also invokes the aid of a
on religious exercise. The benevolent neutrality theory believes that with divine being. These constitutional provisions are wholly ours and have no
respect to these governmental actions, accommodation of religion may be counterpart in the U.S. Constitution or its amendments. They all reveal
allowed, not to promote the government’s favored form of religion, but to without doubt that the Filipino people, in adopting these constitutions,
allow individuals and groups to exercise their religion without hindrance. manifested their adherence to the benevolent neutrality approach that
The purpose of accommodations is to remove a burden on, or facilitate the requires accommodations in interpreting the religion clauses.
exercise of, a person’s or institution’s religion. As Justice Brennan Same; Same; Benevolent Neutrality-Accommodation Standard; It is
explained, the “government [may] take religion into account . . . to exempt, indubitable that benevolent neutrality-accommodation, whether mandatory
when possible, from generally applicable governmental or permissive, is the spirit, intent and framework underlying the Philippine
regulation individuals whose religious beliefs and practices would Constitution—our own Constitutions have made significant changes to
otherwise thereby be infringed, or to create without state involvement an accommodate and exempt religion.—There is no ambiguity with regard to
atmosphere in which voluntary religious exercise may flourish.” In the the Philippine Constitution’s departure from the U.S. Constitution, insofar
ideal world, the legislature would recognize the religions and their as religious accommodations are concerned. It is indubitable
practices and would consider them, when practical, in enacting laws of that benevolent neutrality-accommodation, whether mandatory or
general application. But when the legislature fails to do so, religions that permissive, is the spirit, intent and framework underlying the Philippine
are threatened and burdened may turn to the courts for protection. Thus, Constitution. We therefore reject Mr. Justice Carpio’s total adherence to
what is sought under the theory of accommodation is not a declaration of the U.S. Court’s interpretation of the religion clauses to effectively deny
unconstitutionality of a facially neutral law, but an exemption from its accommodations on the sole basis that the law in question is neutral and
application or its “burdensome effect,” whether by the legislature or the of general application. For even if it were true that “an unbroken line of
courts. Most of the free exercise claims brought to the U.S. Court are for U.S. Supreme Court decisions” has never held that “an individual’s
exemption, not invalidation of the facially neutral law that has a religious beliefs [do not] excuse him from compliance with an otherwise
“burdensome” effect. valid law prohibiting conduct that the State is free to regulate,” our own
Same; Same; By juxtaposing the American Constitution and Constitutions have made significant changes to accommodate and exempt
jurisprudence against that of the Philippines, it is immediately clear that religion. Philippine jurisprudence shows that the Court has allowed
one cannot simply conclude that we have adopted—lock, stock and barrel— exemptions from a law of general application, in effect, interpreting our
the religion clauses as embodied in the First Amendment, and therefore, the religion clauses to cover both mandatory and permissive accommodations.
U.S. Court’s interpretation of the same; Unlike in the U.S. where legislative Same; Same; Same; The Constitution itself mandates the Court to
exemptions of religion had to be upheld by the U.S. Supreme Court as make exemptions as in Ebralinag v. Division Superintendent of Schools,
constituting permissive accommodations, similar exemptions for religion 219 SCRA 256 (1993), and the American Bible Society v. City of Manila,
are mandatory accommodations under our own constitutions.—By 101 Phil. 386 (1957), in cases involving criminal laws of general
juxtaposing the American Constitution and jurisprudence against that of application.—Two things must be clarified: first, in relation to criminal
the Philippines, it is immediately clear that one cannot simply conclude statutes, only the question of mandatory accommo-
that we have adopted—lock, stock and barrel—the religion clauses as 8
embodied in the First Amendment, and therefore, the U.S. Court’s
3
8 SUPREME COURT REPORTS ANNOTATED Estrada vs. Escritor
Estrada vs. Escritor should take off in interpreting religion clause cases.—We must
dation is uncertain, for Philippine law and jurisprudence have, in fact, emphasize that the adoption of the benevolent neutrality-accommodation
allowed legislative accommodation. Second, the power of the Courts to approach does not mean that the Court ought to grant exemptions every
grant exemptions in general (i.e., finding that the Free Exercise Clause time a free exercise claim comes before it. This is an erroneous reading of
required the accommodation, or mandatory accommodations) has already the framework which the dissent of Mr. Justice Carpio seems to entertain.
been decided, not just once, but twice by the Court. Thus, the crux of the Although benevolent neutrality is the lens with which the Court ought to
matter is whether this Court can make exemptions as in Ebralinag and view religion clause cases, the interest of the state should also be afforded
the American Bible Society, in cases involving criminal laws of general utmost protection. This is precisely the purpose of the test—to draw the
application. We hold that the Constitution itself mandates the Court to do line between mandatory, permissible and forbidden religious
so. exercise. Thus, under the framework, the Court cannot simply dismiss a
Same; Same; Same; Freedom of Speech; It has been noted that unlike claim under the Free Exercise Clause because the conduct in question
other fundamental rights like the right to life, liberty or property, the offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for
Religion Clauses are stated in absolute terms, unqualified by the this precisely is the protection afforded by the religion clauses of the
requirement of “due process,” “unreasonableness,” or “lawful order”—only Constitution. As stated in the Decision: x x x While the Court cannot adopt
the right to free speech is comparable in its absolute grant.—We must a doctrinal formulation that can eliminate the difficult questions of
consider the language of the Religion Clauses vis-à-vis the other judgment in determining the degree of burden on religious practice or
fundamental rights in the Bill of Rights. It has been noted that unlike other importance of the state interest or the sufficiency of the means adopted by
fundamental rights like the right to life, liberty or property, the Religion the state to pursue its interest, the Court can set a doctrine on the ideal
Clauses are stated in absolute terms, unqualified by the requirement of towards which religious clause jurisprudence should be directed. We here
“due process,” “unreasonableness,” or “lawful order.” Only the right to free lay down the doctrine that in Philippine jurisdiction, we adopt the
speech is comparable in its absolute grant. Given the unequivocal and benevolent neutrality approach not only because of its merits as discussed
unqualified grant couched in the language, the Court cannot simply above, but more importantly, because our constitutional history and
dismiss a claim of exemption based on the Free Exercise Clause, solely on interpretation indubitably show that benevolent neutrality is the launching
the premise that the law in question is a general criminal law. If the burden pad from which the Court should take off in interpreting religion clause
is great and the sincerity of the religious belief is not in question, adherence cases. The ideal towards which this approach is directed is the protection of
to the benevolent neutrality-accommodation approach require that the religious liberty “not only for a minority, however small—not only for a
Court make an individual determination and not dismiss the claim majority, however large but for each of us” to the greatest extent possible
outright. within flexible constitutional limits.
Same; Same; Same; The adoption of the benevolent neutrality- Same; Same; Same; A look at the evidence that the Office of the
accommodation approach does not mean that the Court ought to grant Solicitor General (OSG) has presented fails to demonstrate “the gravest
exemptions every time a free exercise claim comes before it; Although abuses, endangering paramount interests” which could limit or override
benevolent neutrality is the lens with which the Court ought to view religion respondent Escritor’s fundamental right to religious freedom, and neither
clause cases, the interest of the state should also be afforded utmost did the government exert any effort to show that the means it seeks to achieve
protection—under the framework, the Court cannot simply dismiss a claim its legitimate state objective is the least intrusive means.—On the sincerity
under the Free Exercise Clause because the conduct in question offends a of religious belief, the Solicitor General categorically concedes that the
law or the orthodox view for this precisely is the protection afforded by the sincerity and centrality of respondent’s claimed religious belief and
religion clauses of the Constitution; Our constitutional history and practice are beyond serious doubt. Thus, having previously established
interpretation indubitably show that benevolent neutrality is the launching the preliminary condi-
pad from which the Court 10
9 10 SUPREME COURT REPORTS ANNOTATED
VOL. 492, JUNE 22, 2006 9 Estrada vs. Escritor
4
tions required by the compelling state interest test, i.e., that a law or respondent’s claim, but the State’s narrow interest in refusing to make an
government practice inhibits the free exercise of respondent’s religious exception for the cohabitation which respondent’s faith finds moral. In
beliefs, and there being no doubt as to the sincerity and centrality of her other words, the government must do more than assert the objectives at risk
faith to claim the exemption based on the free exercise clause, the burden if exemption is given; it must precisely show how and to what extent those
shifted to the government to demonstrate that the law or practice justifies objectives will be undermined if exemptions are granted. This, the Solicitor
a compelling secular objective and that it is the least restrictive means of General failed to do.
achieving that objective. A look at the evidence that the OSG has presented Same; Same; Same; The State’s interest in enforcing its prohibition, in
fails to demonstrate “the gravest abuses, endangering paramount interests” order to be sufficiently compelling to outweigh a free exercise claim, cannot
which could limit or override respondent’s fundamental right to religious be merely abstract or symbolic—the State cannot plausibly assert that
freedom. Neither did the government exert any effort to show that the means unbending application of a criminal prohibition is essential to fulfill any
it seeks to achieve its legitimate state objective is the least intrusive means. compelling interest, if it does not, in fact, attempt to enforce that
Same; Same; Same; It is not enough to contend that the state’s interest prohibition.—To paraphrase Justice Blackmun’s application of
is important, because our Constitution itself holds the right to religious the compelling interest test, the State’s interest in enforcing its prohibition,
freedom sacred—the State must articulate in specific terms the state interest in order to be sufficiently compelling to outweigh a free exercise claim,
involved in preventing the exemption, which must be compelling, for only cannot be merely abstract or symbolic. The State cannot plausibly assert
the gravest abuses, endangering paramount interests can limit the that unbending application of a criminal prohibition is essential to fulfill
fundamental right to religious freedom; The government must do more than any compelling interest, if it does not, in fact, attempt to enforce that
assert the objectives at risk if exemption is given—it must precisely show prohibition. In the case at bar, the State has not evinced any concrete
how and to what extent those objectives will be undermined if exemptions interest in enforcing the concubinage or bigamy charges against
are granted.—There has never been any question that the state has an respondent or her partner. The State has never sought to prosecute
interest in protecting the institutions of marriage and the family, or even respondent nor her partner. The State’s asserted interest thus amounts
in the sound administration of justice. Indeed, the provisions by which only to the symbolic preservation of an unenforced prohibition.
respondent’s relationship is said to have impinged, e.g., Book V, Title I, Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in
Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles 334 their concurring opinions in our Decision, dated August 4, 2003, to deny
and 349 of the Revised Penal Code, and even the provisions on marriage the exemption would effectively break up “an otherwise ideal union of two
and family in the Civil Code and Family Code, all clearly demonstrate the individuals who have managed to stay together as husband and wife
State’s need to protect these secular interests. Be that as it may, the free [approximately twenty-five years]” and have the effect of defeating the very
exercise of religion is specifically articulated as one of the fundamental substance of marriage and the family.
rights in our Constitution. It is a fundamental right that enjoys a preferred Same; Same; Same; Bill of Rights; Substantive equality—a reading of
position in the hierarchy of rights—“the most inalienable and sacred of the religion clauses which leaves both politically dominant and the
human rights,” in the words of Jefferson. Hence, it is not enough to contend politically weak religious groups equal in their inability to use the
that the state’s interest is important, because our Constitution itself holds government (law) to assist their own religion or burden others—makes the
the right to religious freedom sacred. The State must articulate in specific most sense in the interpretation of the Bill of Rights, a document designed
terms the state interest involved in preventing the exemption, which must to protect minorities and individuals from
be compelling, for only the gravest abuses, endangering paramount 12
interests can limit the fundamental right to religious freedom. To rule 12 SUPREME COURT REPORTS ANNOTATED
otherwise would be to emasculate the Free Exercise
11
mobocracy in a democracy (the majority or a coalition of minorities).—
VOL. 492, JUNE 22, 2006 11 The government’s conduct may appear innocent and nondis-criminatory
Estrada vs. Escritor but in effect, it is oppressive to the minority. In the interpretation of a
Clause as a source of right by itself. Thus, it is not the State’s broad document, such as the Bill of Rights, designed to protect the minority from
interest in “protecting the institutions of marriage and the family,” or even the majority, the question of which perspective is appropriate would seem
“in the sound administration of justice” that must be weighed against easy to answer. Moreover, the text, history, structure and values
5
implicated in the interpretation of the clauses, all point toward this Freedom of Religion; Public Officers; Civil Service; Disgraceful and
perspective. Thus, substantive equality—a reading of the religion clauses Immoral Conduct; The degree of morality required of every employee or
which leaves both politically dominant and the politically weak religious official in the public service has been consistently high, and the rules are
groups equal in their inability to use the government (law) to assist their particularly strict when the respondent is a Judge or a court employee.—
own religion or burden others—makes the most sense in the interpretation The issue in this case is simple. What is the meaning or standard of
of the Bill of Rights, a document designed to protect minorities and “disgraceful and immoral conduct” to be applied by the Supreme Court in
individuals from mobocracy in a democracy (the majority or a coalition of disciplinary cases involving court personnel? The degree of morality
minorities). required of every employee or official in the public service has been
Same; Same; The records are bereft of even a feeble attempt to procure consistently high. The rules are particularly strict when the respondent is
any evidence to show that the means the state adopted in pursuing this a Judge or a court employee. Even where the Court has viewed certain
compelling interest is the least restrictive to respondent Escritor’s religious cases with human understanding and compassion, it has insisted that no
freedom—Escritor’s conjugal arrangement cannot be penalized as she has untoward conduct involving public officers should be left without proper
made out a case for exemption from the law based on her fundamental right and commensurate sanction. The compassion is shown through relatively
to freedom of religion.—Finally, even assuming that the OSG has proved a light penalties. Never, however, has this Court justified, condoned, or
compelling state interest, it has to further demonstrate that the state has blessed the continuation of an adulterous or illicit relationship such as the
used the least intrusive means possible so that the free exercise is not one in this case, after the same has been brought to its attention.
infringed any more than necessary to achieve the legitimate goal of the state, Same; Same; Same; Same; Those who choose to tolerate the situation
i.e., it has chosen a way to achieve its legitimate state end that imposes as where a man and a woman separated from their legitimate spouses and
little as possible on religious liberties. Again, the Solicitor General utterly decide to live together in an “ideal” and yet unlawful union state—or more
failed to prove this element of the test. Other than the two documents specifically, those who argue that respondent Escritor’s cohabiting with a
offered as cited above which established the sincerity of respondent’s man married to another woman is not something which is willful, flagrant,
religious belief and the fact that the agreement was an internal or shameless—show a moral indifference to the opinion of the good and
arrangement within respondent’s congregation, no iota of evidence was respectable members of the community in a manner prejudicial to the public
offered. In fact, the records are bereft of even a feeble attempt to procure service.—Anything plainly evil or dissolute is, of course, unchangingly
any such evidence to show that the means the state adopted in pursuing immoral. However, at the fringes or boundary limits of what is morally
this compelling interest is the least restrictive to respondent’s religious acceptable and what is unacceptably wrong, the concept of immorality
freedom. Thus, we find that in this particular case and under these distinct tends to shift according to circumstances of time, person, and place. When
circumstances, respondent Escritor’s conjugal arrangement cannot be a case involving the concept of immorality comes to court, the applica-
penalized as she has made out a case for exemption from the law based on 14
her fundamental right to freedom of religion. The Court recognizes that 14 SUPREME COURT REPORTS ANNOTATED
state interests must be upheld in order that freedoms—including religious
13
ble provisions of law and jurisprudence take center stage. Those who
VOL. 492, JUNE 22, 2006 13 choose to tolerate the situation where a man and a woman separated from
Estrada vs. Escritor their legitimate spouses decide to live together in an “ideal” and yet
freedom—may be enjoyed. In the area of religious exercise as a unlawful union state—or more specifically, those who argue that
preferred freedom, however, man stands accountable to an authority respondent’s cohabiting with a man married to another woman is not
higher than the state, and so the state interest sought to be upheld must something which is willful, flagrant, or shameless—show a moral
be so compelling that its violation will erode the very fabric of the state indifference to the opinion of the good and respectable members of the
that will also protect the freedom. In the absence of a showing that such community in a manner prejudicial to the public service.
state interest exists, man must be allowed to subscribe to the Infinite. Same; Same; Same; Same; The issue in this case is legal and not
philosophical—is respondent Escritor guilty of “disgraceful and immoral”
YNARES-SANTIAGO, J., Dissenting: conduct in the context of the Civil Service Law?—Insofar as concepts of
morality are concerned, various individuals or cultures may indeed differ.
6
In certain countries, a woman who does not cover herself with a burka from upon more kindly. However, we should not completely disregard or
head to foot may be arrested for immoral behavior. In other countries, near overlook a relationship of adultery or concubinage involving a court
nudity in beaches passes by unnoticed. In the present case, the perceived employee and not order it to be terminated. It should not ignore what
fixation of our society over sex is criticized. The lesser degree of people will say about our moral standards and how a permissive approach
condemnation on the sins of laziness, gluttony, vanity, selfishness, avarice will be used by other court employees to freely engage in similarly illicit
and cowardice is decried as discriminatory. The issue in this case is legal relationship with no fear of disciplinary punishment. As earlier mentioned,
and not philosophical. It is a limited one. Is respondent Soledad S. Escritor respondent Escritor and Luciano Quilapio, Jr. had existing marriages with
guilty of “disgraceful and immoral” conduct in the context of the Civil their respective legitimate spouses when they decided to live together. To
Service Law? Are there any sanctions that must be imposed? We cannot give an aura of regularity and respectability to what was undeniably an
overlook the fact that respondent Escritor would have been convicted for a adulterous and, therefore, immoral relationship, the two decided to acquire
criminal offense if the offended party had been inclined and justified to through a religious ceremony what they could not accomplish legally. They
prosecute her prior to his death in 1998. Even now, she is a co-principal in executed on July 28, 1991 the “Declaration of Pledging Faithfulness” to
the crime of concubinage. A married woman who has sexual intercourse make their relationship what they alleged it would be—a binding tie before
with a man not her husband, and the man who has carnal knowledge of Jehovah God.
her knowing her to be married, commit the crime of adultery. Same; Same; Same; Same; We must be concerned not with the dogmas
Abandonment by the legal husband without justification does not or rules of any church or religious sect but with the legal effects under the
exculpate the offender; it merely mitigates the penalty. Civil Service Law of an illicit or adulterous relationship characterized by
Same; Same; Same; Same; I do not think the Court is ready to render the facts of this case.—In this case, respondent is charged not as a
a precedent-setting decision to the effect that, under exceptional Jehovah’s Witness but in her capacity as a court employee. It is contended
circumstances, employees of the judiciary may live in a relationship of that respected elders of the Jehovah’s Witnesses sanction “an informal
adultery or concubinage with no fear of any penalty or sanction and that conjugal relationship” between respondent and her marital partner for
after being discovered and charged, they may continue the adulterous more than two decades,
relationship until death ends it.—Our existing rule is that an act so corrupt 16
or false as to constitute a criminal act is “grossly immoral.” It is not merely 16 SUPREME COURT REPORTS ANNOTATED
“immoral.” Respondent now
15
provided it is characterized by faithfulness and devotion to one
VOL. 492, JUNE 22, 2006 15 another. However, the “informal conjugal relationship” is not between two
Estrada vs. Escritor single and otherwise eligible persons where all that is missing is a valid
asks the Court to go all the way to the opposite extreme and condone wedding ceremony. The two persons who started to live together in an
her illicit relations with not even an admonition or a slight tap on the wrist. ostensible marital relationship are married to other persons. We must be
I do not think the Court is ready to render a precedent-setting decision to concerned not with the dogmas or rules of any church or religious sect but
the effect that, under exceptional circumstances, employees of the judiciary with the legal effects under the Civil Service Law of an illicit or adulterous
may live in a relationship of adultery or concubinage with no fear of any relationship characterized by the facts of this case. There is no conflict in
penalty or sanction and that after being discovered and charged, they may this case between the dogmas or doctrines of the Roman Catholic Church
continue the adulterous relationship until death ends it. Indeed, the and those of the Jehovah’s Witnesses or any other church or denomination.
decision in this case is not limited to court interpreter Soledad Escritor. It The perceived conflict is non-existing and irrelevant. The issue is legal and
is not a pro hac vice ruling. It applies to court employees all over the not religious. The terms “disgraceful” and “immoral” may be religious
country and to everybody in the civil service. It is not a private ruling but concepts, but we are concerned with conduct which under the law and
one which is public and far-reaching in its consequences. jurisprudence is proscribed and, if perpetrated, how it should be punished.
Same; Same; Same; Same; Times are changing—illicit sex is now Same; Same; Same; Same; The Court cannot be the instrument by
looked upon more kindly but we should not completely disregard or overlook which one group of people is exempted from the effects of these laws just
a relationship of adultery or concubinage involving a court employee and because they belong to a particular religion.—Respondent cannot legally
not order it to be terminated.—Times are changing. Illicit sex is now looked justify her conduct by showing that it was morally right by the standards
7
of the congregation to which she belongs. Her defense of freedom of religion of religious profession. In addition to the destruction of public morals, the
is unavailing. Her relationship with Mr. Quilapio is illicit and immoral, substantive evil in this case is the tearing down of morality, good order,
both under the Revised Administrative Code and the Revised Penal Code, and discipline in the judiciary. Jurisprudence on immoral conduct of
notwithstanding the supposed imprimatur given to them by their religion. employees in the civil service has been consistent. There is nothing in this
The peculiar religious standards alleged to be those of the sect to which case that warrants a departure from precedents. We must not sanction or
respondent belongs can not shield her from the effects of the law. Neither encourage illicit or adulterous relations among government employees.
can her illicit relationship be condoned on the basis of a written agreement Same; Same; Same; Same; The high degree of moral uprightness that
approved by their religious community. To condone what is inherently is demanded of employees of the government entails many sacrifices that
wrong in the face of the standards set by law is to render nugatory the are peculiar to the civil service—by aspiring to these positions, government
safeguards set to protect the civil service and, in this case, the judiciary. employees are deemed to have submitted themselves to greater scrutiny of
The Court cannot be the instrument by which one group of people is their conduct, all in the pursuit of a professional civil service.—The exacting
exempted from the effects of these laws just because they belong to a standards of ethics and morality imposed upon court judges and court
particular religion. Moreover, it is the sworn mandate of the Court to employees are required to
supervise the conduct of an employee of the judiciary, and it must do so 18
with an even hand regardless of her religious affiliation. 18 SUPREME COURT REPORTS ANNOTATED
Same; Same; Same; Same; Marriages; Husband and Wife; The
strengthening of marriage ties and the concomitant hostility to adul-
maintain the people’s faith in the courts as dispensers of justice, and
17
whose image is mirrored by their actuations. As the Court eloquently
VOL. 492, JUNE 22, 2006 17 stated through Madame Justice Cecilia Muñoz-Palma: [T]he image of the
Estrada vs. Escritor court of justice is necessarily mirrored in the conduct, official or otherwise,
terous or illicit marital relations is a primary governmental concern.— of the men and woman who work thereat, from the judge to the least and
The argument that a marital relationship is the concern of religious lowest of its personnel—hence, it becomes the imperative sacred duty of
authorities and not the State has no basis. In Reynolds v. United States, 98 each and everyone in the court to maintain its good name and standing as
U.S. 145 (1878), the U.S. Supreme Court stated: It is impossible to believe a true temple of justice. The high degree of moral uprightness that is
that the constitutional guaranty of religious freedom was intended to demanded of employees of the government entails many sacrifices that are
prohibit legislation in respect to this most important feature of social life. peculiar to the civil service. By aspiring to these positions, government
Marriage, while from its very nature a sacred obligation, is, nevertheless, employees are deemed to have submitted themselves to greater scrutiny of
in most civilized nations, a civil contract, and usually regulated by law. their conduct, all in the pursuit of a professional civil service. The Court
Upon it society may be said to be built, and out of its fruits spring social has repeatedly applied these principles in analogous cases.
relations and social obligations and duties, with which government is
necessarily required to deal. The strengthening of marriage ties and the CARPIO, J., Dissenting Opinion:
concomitant hostility to adulterous or illicit marital relations is a primary
governmental concern. It has nothing to do with the particular religious Freedom of Religion; Free Exercise Clause; Compelling State Interest
affiliations of those affected by legislation in this field. The relations, Test; The compelling state interest test espoused in Sherbet v. Verner, 374
duties, obligations and consequences of marriage are important to the U.S. 398 (1963), has been abandoned more than 15 years ago by the U.S.
morals and civilization of a people and to the peace and welfare of society. Supreme Court in the Employment Division v. Smith, 485 U.S. 660 (1985)
Any attempt to inject freedom of religion in an effort to exempt oneself from and 494 U.S. 872 (1990).—The compelling state interest test espoused
the Civil Service rules relating to the sanctity of the marriage tie must fail. in Sherbert has been abandoned more than 15 years ago by the U.S.
Same; Same; Same; Same; A clear and present danger of a Supreme Court in the Employment Division v. Smith cases. In
substantive evil, destructive to public morals, is a ground for the reasonable the Smith cases, the U.S. Supreme Court set aside the balancing test for
regulation of the free exercise and enjoyment of religious profession.—A religious minorities laid down in Sherbert. Instead, the U.S. Supreme
clear and present danger of a substantive evil, destructive to public morals, Court ruled categorically in the Smith cases that the guarantee of religious
is a ground for the reasonable regulation of the free exercise and enjoyment liberty as embodied in the Free Exercise Clause does not require the grant
8
of exemptions from generally applicable laws to individuals whose religious interests. This theory found its first expression in the case of Everson v.
practice conflict with those laws. Board of Education, 330 U.S. 1 (1946), which espoused the “no aid”
Same; Same; The majority opinion blatantly ignores that whatever principle. Thus, the government cannot by its programs, policies, or laws
theory may be current in the United States—whether strict neutrality, do anything to aid or support religion or religious activities.
benevolent neutrality or some other theory—the undeniable fact is what is Same; Same; Same; Governmental Neutrality Theory; Words and
clearly stated in Smith II that the Court has never held that an individual’s Phrases; Under the governmental neutrality theory, the estab-
religious beliefs excuse him from compliance with an otherwise valid law 20
prohibiting conduct that the State is free to regulate.—The majority opinion 20 SUPREME COURT REPORTS ANNOTATED
blatantly ignores that whatever theory may be current in the United
States—whether strict neutrality, benevolent neutrality or some other
lishment clause requires government to be neutral on religious
theory—the undeniable fact
matters.—Under the governmental neutrality theory, the establishment
19
clause requires government to be neutral on religious matters. This theory
VOL. 492, JUNE 22, 2006 19 was articulated by Mr. Justice Clark in the case of Abington School District
Estrada vs. Escritor v. Schempp, 374 U.S. 203 (1963), where he stated that what the
is what is clearly stated in Smith II: x x x We have never held that an Constitution requires is “wholesome neutrality,” i.e., laws and
individual’s religious beliefs excuse him from compliance with an otherwise governmental programs must be directed to secular ends and must have a
valid law prohibiting conduct that the State is free to regulate. x x x Thus, primary effect that neither advances nor inhibits religion. This test as
from the 1879 case of Reynolds v. U.S., 98 U.S. 145 (1878), on the practice stated by Mr. Justice Clark embodies a theory of strict neutrality—thus,
of polygamy by Mormons to the 1988 and 1990 Smith cases on the use of the government may not use the religious factor as a basis for classification
prohibited drugs by native American Indians, the U.S. Supreme Court has with the purpose of advancing or inhibiting religion: The place of religion
consistently held that religious beliefs do not excuse any person from in our society is an exalted one, achieved through a long tradition of
liability for violation of a valid criminal law of general application. The reliance on the home, the church and the inviolable citadel of the individual
majority opinion simply refuses to face and accept this reality. heart and mind. We have come to recognize through bitter experience
Same; Same; Theories on the Religion Clause; A close reading of the that it is not within the power of government to invade that citadel, whether
major U.S. Supreme Court opinions specifically relating to the religion its purpose or effect be to aid or oppose, to advance or retard. In the
clauses presents three principal theories at play, namely, (a) the strict relationship between man and religion, the state is firmly committed to a
separation or “no aid” theory, (b) the governmental neutrality theory, and position of neutrality. (Italics supplied) However, the concept of
(c) the accommodation or benevolent neutrality theory.—While the majority governmental neutrality can be interpreted in various ways—to some,
opinion only mentions separation and benevolent neutrality, a close anything but total neutrality is anathema; to others, “neutrality can only
reading of the major U.S. Supreme Court opinions specifically relating to mean that government policy must place religion at neither a special
the religion clauses presents three principal theories at play, namely, advantage nor a special disadvantage.”
(a) the strict separation or “no aid” theory, (b) the governmental neutrality Same; Same; Same; Accommodation Theory; Words and Phrases; The
theory, and (c) the accommodation or benevolent neutrality theory. accommodation theory provides that any limitation derived from the
Same; Same; Same; Strict Separation or “No Aid” Theory; Words and establishment clause on cannot be rigidly applied so as to preclude all aid
Phrases; The strict separation or “no aid” theory holds that the to religion and that in some situations government must, and in other
establishment clause viewed in conjunction with the free exercise clause situations may, accommodate its policies and laws in the furtherance of
requires a strict separation of church and state and that government can do religious freedom.—The accommodation theory provides that any
nothing which involves governmental support of religion or which is limitation derived from the establishment clause on cannot be rigidly
favorable to the cultivation of religious interests.—The strict separation or applied so as to preclude all aid to religion and that in some situations
“no aid” theory holds that the establishment clause viewed in conjunction government must, and in other situations may, accommodate its policies
with the free exercise clause requires a strict separation of church and and laws in the furtherance of religious freedom. The accommodation
state and that government can do nothing which involves governmental theory found its first expression in Zorach v. Clauson, 343 U.S. 306
support of religion or which is favorable to the cultivation of religious (1951). The U.S. Supreme Court held in Zorach that a state could
9
authorize an arrangement whereby public school children could be released the Free Exercise Clause minimum without “establishing” religion and
one hour a week for religious instruction off the school thereby running afoul of the Establish-
premises. Zorach did not involve religiously motivated conduct that 22
constituted a violation of a criminal statute. 22 SUPREME COURT REPORTS ANNOTATED
21
VOL. 492, JUNE 22, 2006 21 ment Clause. What the Smith cases espouse, therefore, is not really
Estrada vs. Escritor the strict neutrality approach, but more of permissive accommodation.
Same; Same; Same; Same; The majority opinion fails to mention that Same; Same; Public Officers; Civil Service; Courts; Court
a distinction is often drawn by courts and commentators between Personnel; Even assuming that the theory of benevolent neutrality and the
mandatory accommodation and permissive accommodation—mandatory compelling state interest test are applicable, the State has a compelling
accommodation is exemplified by the key idea in Sherbert that exemptions interest in exacting from everyone connected with the dispensation of justice,
from generally applicable laws are required by force of the Free Exercise from the highest magistrate to the lowest of its personnel, the highest
Clause while permissive accommodation refers to exercises of political standard of conduct.—Even assuming that the theory of benevolent
discretion that benefit religion, and that the Constitution neither requires neutrality and the compelling state interest test are applicable, the State
nor forbids.—The majority opinion vigorously argues the merits of has a compelling interest in exacting from everyone connected with the
adopting the theory of accommodation in the interpretation of our dispensation of justice, from the highest magistrate to the lowest of its
Constitution’s religion clauses. However, the majority opinion fails to personnel, the highest standard of conduct. This Court has repeatedly held
mention that a distinction is often drawn by courts and commentators that “the image of a court of justice is necessarily mirrored in the conduct,
between mandatory accommodation and permissive accommodation. official or otherwise, of the men and women who work thereat.” While
Mandatory accommodation is exemplified by the key idea in Sherbert that arguably not constituting “disgraceful and immoral conduct,” Escritor’s
exemptions from generally applicable laws are required by force of the Free cohabitation with Quilapio is a patent violation of our penal law on
Exercise Clause,which the majority opinion adheres to in granting concubinage that vitiates “the integrity of court personnel and the court
Escritor’s claim of free exercise exemption. Permissive accommodation itself.” The public’s faith and confidence in the administration of justice
refers to exercises of political discretion that benefit religion, and that the would certainly be eroded and undermined if tolerated within the
Constitution neither requires nor forbids. The U.S. Supreme Court judiciary’s ranks are court employees blatantly violating our criminal laws.
recognized in Smith II that although the Free Exercise Clause did not I therefore maintain that Escritor’s admitted cohabitation with Quilapio is
require permissive accommodation, the political branches could shield sufficient basis to hold her guilty of conduct prejudicial to the best interest
religious exercise through legislative accommodation, for example, by of the service and to impose upon her the appropriate penalty.
making an exception to proscriptive drug laws for sacramental peyote use. Same; Same; Marriages; Husband and Wife; Equally compelling is
Same; Same; Same; Same; Theories are only guideposts and “there is the State’s interest in the preservation of marriage and the family as basic
no magic formula to settle all disputes between religion and the law, no social institutions, which is ultimately the public policy underlying Articles
legal pill to ease the pain of perceived injustice and religious oppression, 334 and 349 of the Revised Penal Code.—Equally compelling is the State’s
and certainly no perfect theory to bind judges or legislators.”—Theories are interest in the preservation of marriage and the family as basic social
only guideposts and “there is no magic formula to settle all disputes institutions, which is ultimately the public policy underlying Articles 334
between religion and the law, no legal pill to ease the pain of perceived and 349 of the Revised Penal Code. This Court has recognized in countless
injustice and religious oppression, and certainly no perfect theory to bind cases that marriage and the family are basic social institutions in which
judges or legislators.” The Smith cases, particularly Smith II, cannot be so the State is vitally interested and in the protection of which the State has
easily dismissed by the majority opinion and labeled as “best exemplifying the strongest interest. In Domingo v. Court of Appeals, 226 SCRA 572
the strict neutrality approach.” The Smith Court affirmed the power and (1993), the Court stressed that: Marriage, a sacrosanct institution,
the discretion of legislatures to enact statutory protection beyond what the declared by the Constitution as an “inviolable social
Free Exercise Clause required. The U.S. Supreme Court indicated in Smith 23
II that legislatures could enact accommodations to protect religion beyond VOL. 492, JUNE 22, 2006 23
10
Estrada vs. Escritor secured church annulment of their marriage even without a final
institution, is the foundation of the family”; as such, it “shall be annulment from a civil court. The majority pushes their opinion on a
protected by the State.” x x x So crucial are marriage and the family to the slippery slope.
stability and peace of the nation that their “nature, consequences, and Same; Same; Same; It may well be asked how, under a well-meaning
incidents are governed by law and not subject to stipulation.” but overly solicitous grant of exemption based on the Freedom of Exercise
Same; Same; Same; By choosing to turn a blind eye to Escritor’s Clause of our Constitution, an individual can be given the private right to
criminal conduct, the majority is in fact recognizing and according judicial ignore a generally applicable, religion-neutral law.—It may well be asked
imprimatur to a practice, custom or agreement that subverts marriage, how, under a well-meaning but overly solicitous grant of exemption based
albeit one that is sanctioned by a particular religious sect.—By choosing to on the Freedom of Exercise Clause of our Constitution, an individual can
turn a blind eye to Escritor’s criminal conduct, the majority is in fact be given the private right to ignore a generally applicable, religion-neutral
recognizing and according judicial imprimatur to a practice, custom or law. For this is what the majority opinion has effectually granted Escritor
agreement that subverts marriage, albeit one that is sanctioned by a in dismissing the administrative complaint against her. The
particular religious sect. The majority’s opinion here bestows “a credibility accommodation of Escritor’s religious beliefs under the benevolent
and legitimacy upon the religious belief in question simply by its being neutrality approach is too high a price to pay when weighed against its
judicially recognized as constitutionally sacrosanct.” This is another prejudicial effect on the sound administration of justice and the protection
problem that arises in free exercise exemption analysis—the benevolent of marriage and the family as basic social institutions.
neutrality approach fails to take into account the role that equality plays Same; Same; Same; There is even no claim here that concubinage is
in free exercise theory. While the text of the Free Exercise Clause is central to the religious belief of the Jehovah’s Witnesses, or even apart of the
consistent with protecting religion from discrimination, it does not compel religious belief of the Jehovah’s Witnesses.—There is even no claim here
discrimination in favor of religion. However, the benevolent neutrality that concubinage is central to the religious belief of the Jehovah’s
approach promotes its own form of inequality when under it, exemptions Witnesses, or even a part of the religious belief of the Jehovah’s Witnesses.
are granted only to religious claimants like Escritor, whose religiously- Escritor merely claims that her live-in arrangement with a married man
sanctioned but otherwise illegal conjugal arrangement with Quilapio is, in the words of the majority opinion, “in conformity with her and her
acquires a veneer of “special judicial reinforcement.” partner’s religious belief.” This case is not an issue of a statute colliding
Same; Same; Same; Slipper Slope Adjudication; If this Court with centrally or vitally held beliefs of a religious denomination, as in the
condones Escritor’s act of concubinage on religious grounds, then it will case of Sherbert. This case is about a religious cover for an obviously
have to condone acts of concubinage by Catholics who have secured church criminal act.
annulment of their marriage even without a final annulment from a civil Same; Same; The positive law and the institutions of government are
court—the majority pushes their opinion on a slippery slope.—Catholics concerned not with correct belief but with overt conduct related to good
may secure a church annulment of their marriage. A church annulment order, peace, justice, freedom, and community welfare—certainly,
does not exempt Catholics from criminal or administrative liability if they observance of provisions of the Revised Penal Code, whose validity or
cohabit with someone other than their legal spouse before their marriage constitutionality are not even challenged, is a price that all religions in the
is finally annulled by a civil court. Catholics cannot legally justify before Philippines must willingly pay for the sake of good order and peace in the
civil courts such act of concubinage on the ground that the act conforms to community.—The positive law and the institutions of government are
their religious beliefs because they have a secured a church annulment concerned not with correct belief but with overt conduct related to good
which freed them from their marital vows. If this Court condones Escritor’s order, peace, justice, freedom, and community welfare. Hence, while there
act of concubinage on religious grounds, then it will have to condone acts are times when government
of concubinage by Catholics who have 25
24 VOL. 492, JUNE 22, 2006 25
Estrada vs. Escritor must adapt to, or acquiesce to meet the needs of religious exercise,
there are also times when the exercises a religion wishes to pursue must
be adapted or even prohibited in order to meet the needs of public policy.
11
For indeed, even religious liberty has its limits. And certainly, “there is a arrangement. Estrada believes that Escritor is committing an immoral act
price to be paid, even by religion, for living in a constitutional democracy.” that tarnishes the image of the court, thus she should not be allowed to
Certainly, observance of provisions of the Revised Penal Code, whose remain employed therein as it might appear that the court condones her
validity or constitutionality are not even challenged, is a price that all act.2 Consequently, respondent was charged with committing “disgraceful
religions in the Philippines must willingly pay for the sake of good order and immoral conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of
and peace in the community. To hold otherwise would, as aptly stated the Revised Administrative Code.3 Respondent Escritor testified that when
in Reynolds v. U.S., 98 U.S. 145 (1878), “make the professed doctrines of she entered the judiciary in 1999, she was already a widow, her husband
religious belief superior to the law of the land,” and in effect “permit every
citizen to become a law unto himself.” The majority opinion will make every _______________
religion a separate republic, making religion a haven for criminal conduct
that otherwise would be punishable under the laws of the land. Today 1 Estrada v. Escritor, 455 Phil. 411; 408 SCRA 1 (2003).
concubinage, tomorrow bigamy, will enjoy protection from criminal 2 Id., at p. 444; p. 50. Incidentally, Escritor moved for the inhibition of
sanction under the new doctrine foisted by the majority opinion. Judge Caoibes from hearing her case to avoid suspicion and bias as she
ADMINISTRATIVE MATTER in the Supreme Court. Disgraceful and previously filed an administrative case against him. Escritor’s motion was
Immoral Conduct. denied.
The facts are stated in the resolution of the Court. 3 Id. The Code provides:
Antonio Manzano for complainant. Sec. 46. Discipline: General Provisions.—

Teodorico M. Diesmos for Soledad Escritor.
RESOLUTION 1. (a)No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due
PUNO, J.: process.
2. (b)The following shall be grounds for disciplinary action:
While man is finite, he seeks and subscribes to the Infinite. Respondent
Soledad Escritor once again stands before the Court invoking her religious xxxxxxxxx
freedom and her Jehovah God in a bid to save her family—united without (5) Disgraceful and immoral conduct; x x x.
the benefit of legal marriage—and livelihood. The State, on the other hand, 27
seeks to wield its power to regulate her behavior and protect its interest in VOL. 492, JUNE 22, 2006 27
marriage and family and the integrity of the courts where respondent is an
employee. How the Court will tilt the scales of justice in the case at bar will Estrada vs. Escritor
decide not only the fate having died in 1998.4 She admitted that she started living with Luciano
26 Quilapio, Jr. without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman. She also
26 SUPREME COURT REPORTS ANNOTATED
admitted that she and Quilapio have a son.5 But as a member of the
Estrada vs. Escritor religious sect known as the Jehovah’s Witnesses and the Watch Tower and
of respondent Escritor but of other believers coming to Court bearing Bible Tract Society, respondent asserted that their conjugal arrangement
grievances on their free exercise of religion. This case comes to us from our is in conformity with their religious beliefs and has the approval of her
remand to the Office of the Court Administrator on August 4, 2003.1 congregation.6 In fact, after ten years of living together, she executed on
I. THE PAST PROCEEDINGS July 28, 1991, a “Declaration of Pledging Faithfulness.”7
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro
Estrada requested Judge Jose F. Caoibes, Jr., presiding judge of Branch _______________
253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with 4 Id., at p. 445; p. 51.
a man not her husband, and having borne a child within this live-in 5 Id., at pp. 445, 447; p. 51.
12
6 Id., at pp. 445, 453, and 457; pp. 51, 56-57, 59. Moreover, the Jehovah’s congregation believes that once all legal
7 Id., at pp. 445-456; pp. 51-52. The Declaration provides: impediments for the couple are lifted, the validity of the declarations
ceases, and the couple should legalize their union. In Escritor’s case,
DECLARATION OF PLEDGING FAITHFULNESS although she was widowed in 1998, thereby lifting the legal impediment to
marry on her part, her mate was still not capacitated to remarry. Thus,
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. their declarations remained valid.12 In sum, therefore, insofar as the
Quilapio, Jr., as my mate in marital relationship; that I have done all
within my ability to obtain legal recognition of this relationship by the _______________
proper public authorities and that it is because of having been unable to do
so that I therefore make this public declaration pledging faithfulness in 8 Id., at pp. 447-448, 452-453; pp. 53-54, 55. Based on the testimony of
this marital relationship. Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985. As
I recognize this relationship as a binding tie before ‘Jehovah’ God and presiding minister since 1991, he is aware of the rules and regulations of
before all persons to be held to and honored in full accord with the the Congregation. An authenticated copy of the magazine article entitled,
principles of God’s Word. I will continue to seek the means to obtain legal “Maintaining Marriage Before God and Men,” which explains the rationale
recognition of this relationship by the civil authorities and if at any future behind the Declaration, was also presented.
time a change in circumstances make this possible, I promise to legalize 9 Id., at p. 449; p. 55.
this union. 10 Id., at p. 452; p. 58.
Signed this 28th day of July 1991. 11 Id., at p. 449; p. 55.
Parenthetically, Escritor’s partner, Quilapio, executed a similar pledge 12 See Id., at pp. 447-452; pp. 53-58.
on the same day. Both pledges were executed in Atimonan, Quezon and 29
signed by three witnesses. At the time Escritor executed her pledge, her VOL. 492, JUNE 22, 2006 29
husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his
congregation is concerned, there is nothing immoral about the conjugal
wife. Id., at p. 446; p. 52.
arrangement between Escritor and Quilapio and they remain members in
28
good standing in the congregation.
28 SUPREME COURT REPORTS ANNOTATED By invoking the religious beliefs, practices and moral standards of her
Estrada vs. Escritor congregation, in asserting that her conjugal arrangement does not
For Jehovah’s Witnesses, the Declaration allows members of the constitute disgraceful and immoral conduct for which she should be held
congregation who have been abandoned by their spouses to enter into administratively liable,13 the Court had to determine the contours of
marital relations. The Declaration thus makes the resulting union moral religious freedom under Article III, Section 5 of the Constitution, which
and binding within the congregation all over the world except in countries provides, viz.:
where divorce is allowed. As laid out by the tenets of their faith, the Sec. 5. No law shall be made respecting an establishment of religion, or
Jehovah’s congregation requires that at the time the declarations are prohibiting the free exercise thereof. The free exercise and enjoyment of
executed, the couple cannot secure the civil authorities’ approval of the religious profession and worship, without discrimination or preference,
marital relationship because of legal impediments. Only couples who have shall forever be allowed. No religious test shall be required for the exercise
been baptized and in good standing may execute the Declaration, which of civil or political rights.
requires the approval of the elders of the congregation. As a matter of A. RULING
practice, the marital status of the declarants and their respective spouses’ In our decision dated August 4, 2003, after a long and arduous scrutiny
commission of adultery are investigated before the declarations are into the origins and development of the religion clauses in the United
executed.8 Escritor and Quilapio’s declarations were executed in the usual States (U.S.) and the Philippines, we held that in resolving claims
and approved form prescribed by the Jehovah’s Witnesses,9 approved by involving religious freedom (1) benevolent
elders of the congregation where the declarations were executed,10 and neutrality or accommodation, whether mandatory or permissive, is the
recorded in the Watch Tower Central Office.11 spirit, intent and framework underlying the religion clauses in our
13
Constitution; and (2) in deciding respondent’s plea of exemption based on 15Id.,
at pp. 599-600; p. 191.
the Free Exercise Clause (from the law with which she is administratively 16Agustin v. Court of Appeals, G.R. No. 107846, April 18, 1997, 271
charged), it is the compelling state interest test, the strictest test, which SCRA 457; Gokongwei v. Securities and Exchange Commission, G.R. No.
must be applied.14 52129, April 21, 1980, 97 SCRA 78; Commissioner of Public Highways v.
Notwithstanding the above rulings, the Court could not, at that time, Burgos, G.R. No. L-36706, March 31, 1980, 96 SCRA 831; Municipality of
rule definitively on the ultimate issue of whether respondent was to be held Daet v. Court of Appeals, G.R. No. L-35861, October 18, 1979, 93 SCRA
administratively liable for there was need to give the State the opportunity 503; and People’s Homesite and Housing Corp. v. Mencias, G.R. No. L-
to adduce evidence 24114, August 16, 1967, 20 SCRA 1031.
31
_______________ VOL. 492, JUNE 22, 2006 31
13Id., at pp. 445, 453, and 457; pp. 51, 53, 58.
14Id., at p. 596; p. 141. B. LAW OF THE CASE
30 Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of
this case interpreting the religious clauses of the Constitution, made more
than two years ago, is misplaced to say the least. Since neither the
Estrada vs. Escritor complainant, respondent nor the government has filed a motion for
that it has a more “compelling interest” to defeat the claim of the reconsideration assailing this ruling, the same has attained finality and
respondent to religious freedom. Thus, in the decision dated August 4, constitutes the law of the case. Any attempt to reopen this final ruling
2003, we remanded the complaint to the Office of the Court constitutes a crass contravention of elementary rules of procedure. Worse,
Administrator (OCA), and ordered the Office of the Solicitor insofar as it would overturn the parties’ right to rely upon our
General (OSG) to intervene in the case so it can: interpretation which has long attained finality, it also runs counter to
substantive due process.
1. (a)examine the sincerity and centrality of respondent’s claimed Be that as it may, even assuming that there were no procedural and
religious belief and practice; substantive infirmities in Mr. Justice Carpio’s belated attempts to disturb
2. (b)present evidence on the state’s “compelling interest” to override settled issues, and that he had timely presented his arguments, the results
respondent’s religious belief and practice; and would still be the same.
3. (c)show that the means the state adopts in pursuing its interest is We review the highlights of our decision dated August 4, 2003.
the least restrictive to respondent’s religious freedom.15 1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World
It bears stressing, therefore, that the residual issues of the case pertained antecedents of the religion clauses, because “one cannot understand, much
NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN less intelligently criticize the approaches of the courts and the political
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER branches to religious freedom in the recent past in the United States
TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION without a deep appreciation of the roots of these controversies in the
BASED ON FREEDOM OF RELIGION. These issues have already ancient and medieval world and in the American experience.”17 We delved
been ruled upon prior to the remand, and constitute “the law of into the conception of religion from primitive times, when it started out as
the case” insofar as they resolved the issues of which framework the state itself, when the
and test are to be applied in this case, and no motion for its
reconsideration having been filed.16 The only task that the Court is _______________
left to do is to determine whether the evidence adduced by the State proves
its more compelling interest. This issue involves a pure question of fact. 17See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468; 408
SCRA 1, 63-73 (2003).

_______________ 32
14
32 SUPREME COURT REPORTS ANNOTATED Constitution. The restriction had to be made explicit with the adoption of
the religion clauses in the First Amendment as they are worded to this day.
Thus, the First Amendment did not take away or abridge any power of the
authority and power of the state were ascribed to God.18 Then, religion
national government; its intent was to make express the absence of
developed on its own and became superior to the state,19 its
power.24 It commands, in two parts (with the first part usually referred to
subordinate,20 and even becoming an engine of state policy.21
as the Establishment Clause and the second part, the Free Exercise
We ascertained two salient features in the review of religious
Clause), viz.:
history: First, with minor exceptions, the history of church-state
Congress shall make no law respecting an establishment of religion or
relationships was characterized by persecution, oppression, hatred,
prohibiting the free exercise thereof.25
bloodshed, and war, all in the name of the God of Love and of the Prince of
The Establishment and Free Exercise Clauses, it should be noted, were not
Peace. Second, likewise with minor exceptions, this history witnessed the
designed to serve contradictory purposes. They have a single goal—to
unscrupulous use of religion by secular powers to promote secular purposes
promote freedom of individual religious beliefs and practices. In simplest
and policies, and the willing acceptance of that role by the vanguards of
terms, the Free Exercise Clause prohibits government from inhibiting
religion in exchange for the favors and mundane benefits conferred by
religious beliefs with penalties for religious beliefs and practice, while the
ambitious princes and emperors in exchange for religion’s invaluable
Establishment Clause prohibits government from inhibiting religious
service. This was the context in which the unique experiment of the
belief with rewards for religious beliefs and practices. In other words, the
principle of religious freedom and separation of church and state saw its
two religion clauses were intended to deny government the power to use
birth in American constitutional democracy and in human history.22
either the carrot or the stick to influence individual religious beliefs and
Strictly speaking, the American experiment of freedom and separation
practices.26
was not translated in the First Amendment. That experiment had been
launched four years earlier, when the founders of the republic carefully
_______________
withheld from the new national government any power to deal with
religion. As James 23 Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 565 (4th ed. 1997).

_______________ 24 Id.
25 See Estrada v. Escritor, 455 Phil. 411, 479-480; 408 SCRA 1, 83
18During primitive times, when there was no distinction between the
(2003).
religious and secular, and the same authority that promulgated laws 26 Cohen, William & Danelski, David J., Constitutional Law: Civil
regulating relations between man and man promulgated laws concerning
Liberty and Individual Rights 575 (4th ed. 1997).
man’s obligations to the supernatural. See Id., at pp. 458-459; p. 64.
19 This was the time of theocracy, during the rise of the Hebrew state
34
and the Mosaic religion. See Id., at pp. 459-461; p. 65. 34 SUPREME COURT REPORTS ANNOTATED
20 Following the rise of Saul, and the pre-Christian Rome which Estrada vs. Escritor
engaged in emperor-worship. See Id., at pp. 461-462; p. 65. In sum, a review of the Old World antecedents of religion shows the
21Id., at pp. 462-463; p. 66. movement of establishment of religion as an engine to promote state
22 Id., at p. 468; pp. 72-73. interests, to the principle of non-establishment to allow the free exercise of
33 religion.
VOL. 492, JUNE 22, 2006 33 2. RELIGION CLAUSES IN THE U.S. CONTEXT
Estrada vs. Escritor The Court then turned to the religion clauses’ interpretation and
Madison said, the national government had no “jurisdiction” over religion construction in the United States, not because we are bound by their
or any “shadow of right to intermeddle” with it.23 interpretation, but because the U.S. religion clauses are the precursors to
The omission of an express guaranty of religious freedom and other the Philippine religion clauses, although we have significantly departed
natural rights, however, nearly prevented the ratification of the from the U.S. interpretation as will be discussed later on.
15
At the outset, it is worth noting that American jurisprudence in this free choice among political views, thus a strict “wall of separation” is
area has been volatile and fraught with inconsistencies whether within a necessary.30
Court decision or across decisions. For while there is widespread Strict separation faces difficulties, however, as it is deeply embedded
agreement regarding the value of the First Amendment religion clauses, in American history and contemporary practice that enormous amounts of
there is an equally broad disagreement as to what these clauses specifically aid, both direct and indirect, flow to religion from government in return for
require, permit and forbid. No agreement has been reached by those who huge amounts of mostly indirect aid from religion.31 For example, less than
have studied the religion clauses as regards its exact meaning and the
paucity of records in the U.S. Congress renders it difficult to ascertain its _______________
meaning.27
U.S. history has produced two identifiably different, even opposing, 28 See Id., at pp. 487, 512-516; pp. 89, 114-118.
strains of jurisprudence on the religion clauses. First is the standard 29 Id., at pp. 515; p. 115, citing Buzzard, L., Ericsson, S., The Battle for
of separation, which may take the form of either (a) strict separation or Religious Liberty 46 (1980); Beth, L., American Theory of Church and
(b) the tamer version of strict neutrality or separation, or what Mr. State 71 & 72 (1958); and Grossman, J.B. and Wells, R.S., Constitutional
Justice Carpio refers to as the second theory of governmental Law & Judicial Policy Making 1276 (2nd ed. 1980).
neutrality. Although the latter form is not as hostile to religion as the 30 Id., at p. 515; p. 115, citing THE CONSTITUTION AND RELIGION
former, both are anchored on the Jeffersonian premise that a “wall of 1541.
separation” must exist between the state and the 31See Drakeman, D., Church-State Constitutional Issues 55
(1991), citing Cord, R., Separation of Church and State: Historical Fact
_______________ and Current Fiction 50. Thus:
36
27 Estrada v. Escritor, 455 Phil. 411, 480; 408 SCRA 1, 83 36 SUPREME COURT REPORTS ANNOTATED
(2003), citing BETH, L., AMERICAN THEORY OF CHURCH AND
STATE 71 (1958).
twenty-four hours after Congress adopted the First Amendment’s
35
prohibition on laws respecting an establishment of religion, Congress
VOL. 492, JUNE 22, 2006 35 decided to express its thanks to God Almighty for the many blessings
Estrada vs. Escritor enjoyed by the nation with a resolution in favor of a presidential
Church to protect the state from the church.28 Both protect the principle of proclamation declaring a national day of Thanksgiving and
church-state separation with a rigid reading of the principle. On the other Prayer.32 Thus, strict separationists are caught in an awkward position
hand, the second standard, the benevolent of claiming a constitutional principle that has never existed and is never
neutrality or accommodation, is buttressed by the view that the wall of likely to.33
separation is meant to protect the church from the state. A brief review of
each theory is in order. _______________
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was The [separationist] school of thought argues that the First Congress
meant to protect the state from the church, and the state’s hostility towards intended to allow government support of religion, at least as long as that
religion allows no interaction between the two. According to this support did not discriminate in favor of one particular religion. . . the
Jeffersonian view, an absolute barrier to formal interdependence of Supreme Court has overlooked many important pieces of history. Madison,
religion and state needs to be erected. Religious institutions could not for example, was on the congressional committee that appointed a
receive aid, whether direct or indirect, from the state. Nor could the state chaplain, he declared several national days of prayer and fasting during
adjust its secular programs to alleviate burdens the programs placed on his presidency, and he sponsored Jefferson’s bill for punishing Sabbath
believers.29 Only the complete separation of religion from politics would breakers; moreover, while president, Jefferson allowed federal support of
eliminate the formal influence of religious institutions and provide for a religious missions to the Indians. . . And so, concludes one recent book,
“there is no support in the Congressional records that either the First
16
Congress, which framed the First Amendment, or its principal author and 34 330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court
sponsor, James Madison, intended that Amendment to create a state of adopted Jefferson’s metaphor of “a wall of separation between church and
complete independence between religion and government. In fact, the state” as encapsulating the meaning of the Establishment Clause. Said the
evidence in the public documents goes the other way.” Id., at pp. 513-514; U.S. Court: “The First Amendment has erected a wall between church and
p. 113. state. That wall must be kept high and impregnable. We could not approve
32 Id., at p. 514; pp. 113-114, citing Drakeman, D., Church-State the slightest breach . . . .” Id., at p. 18.
Constitutional Issues 55 (1991), Cord, R., Separation of Church and State: 35 Everson v. Board of Education, 330 U.S. 1, 18 (1947).
Historical Fact and Current Fiction 50; and 1 The Debates and Proceedings 36 See Estrada v. Escritor, 455 Phil. 411, 516; 408 SCRA 1, 115
in the Congress of the United States, Compiled from Authentic (2003), citing THE CONSTITUTION AND RELIGION 1541; and
Materials 949-950 (Annala, Gales, J. and Seaton, W., eds.). Only two Kurland, Of Church and State and the Supreme Court, 29 U.CHI.L.REV.
members of U.S. Congress opposed the resolution, one on the ground that 1, 5 (1961). Parenthetically, the U.S. Court in Employment Division,
the move was a “mimicking of European customs, where they made a mere Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990),
mockery of thanksgivings,” the other on establishment clause concerns. echoed the rationale of the separationists, when it held that if
Nevertheless, the salutary effect of thanksgivings throughout Western government acts in pursuit of a generally applicable law with a secular
history was acknowledged and the motion was passed without further purpose that merely incidentally burdens religious exercise, the First
recorded discussion. Amendment has not been offended.
33 Id., at p. 515; p. 115, citing Weber, P., Neutrality and First 38
Amendment Interpretation in EQUAL SEPARATION 3 (1990). 38 SUPREME COURT REPORTS ANNOTATED
37
VOL. 492, JUNE 22, 2006 37 lead to a de facto voiding of religious expression in the Free Exercise
Estrada vs. Escritor Clause. As pointed out by Justice Goldberg in his concurring opinion
The tamer version of the strict separationist view, the strict in Abington School District v. Schempp,37 strict neutrality could lead to “a
neutrality or separationist view, (or, the governmental brooding and pervasive devotion to the secular and a passive, or even
neutrality theory) finds basis in Everson v. Board of Education,34 where active, hostility to the religious” which is prohibited by the
the Court declared that Jefferson’s “wall of separation” encapsulated the Constitution.38 Professor Laurence Tribe commented in his authoritative
meaning of the First Amendment. However, unlike the strict treatise, viz.:
separationists, the strict neutrality view believes that the “wall of To most observers. . . strict neutrality has seemed incompatible with the
separation” does not require the state to be their adversary. Rather, the very idea of a free exercise clause. The Framers, whatever specific
state must be neutral in its relations with groups of religious believers applications they may have intended, clearly envisioned religion as
and non-believers. “State power is no more to be used so as to handicap something special; they enacted that vision into law by guaranteeing the
religions than it is to favor them.”35 The strict neutrality approach is not free exercise of religion but not, say, of philosophy or science. The strict
hostile to religion, but it is strict in holding that religion may not be used neutrality approach all but erases this distinction. Thus it is not surprising
as a basis for classification for purposes of governmental action, whether that the [U.S.] Supreme Court has rejected strict neutrality, permitting
the action confers rights or privileges or imposes duties or obligations. Only and sometimes mandating religious classifications.39
secular criteria may be the basis of government action. It does not permit, Thus, the dilemma of the separationist approach, whether in the form
much less require, accommodation of secular programs to religious of strict separation or strict neutrality, is that while the Jeffersonian wall
belief.36 of separation “captures the spirit of the American ideal of church-state
The problem with the strict neutrality approach, however, is if applied separation,” in real life, church and state are not and cannot be totally
in interpreting the Establishment Clause, it could separate. This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of
_______________ involvement and activity, resulting in the intersection of government and
religion at many points.40
17
_______________ remaining purpose of the wall is to safeguard religious liberty. Williams’
wall, therefore, would allow for interaction between church and state, but
37374 U.S. 203 (1963). is strict with regard to state action which would threaten the integrity of
38 Estrada v. Escritor, 455 Phil. 411, 517; 408 SCRA 1, 116 religious commitment. His conception of separation is not total such that
(2003), citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR it provides basis for certain interactions between church and state dictated
RELIGIOUS LIBERTY 60 (1980). by apparent necessity or practicality.
39Id., at pp. 517-518; pp. 116-117, citing Kelley, D. Strict Neutrality and See discussion of the birth of the theory in Estrada v. Escritor, 455 Phil.
the Free Exercise of Religion in WEBER, P., EQUAL SEPARATION 1189 411, 518-519; 408 SCRA 1, 117-118 (2003).
(1990). 42 343 U.S. 306 (1951).
40 Id., at p. 518; p. 117, citing 75. Monsma, S. The Neutrality Principle 40
and a Pluralist Concept of Accommodation, in WEBER, P., EQUAL 40 SUPREME COURT REPORTS ANNOTATED
SEPARATION 74-75 (1990).
39
ment. A fastidious atheist or agnostic could even object to the supplication
VOL. 492, JUNE 22, 2006 39 with which the Court opens each session: “God save the United States and
Estrada vs. Escritor this Honorable Court.”
b. Benevolent Neutrality/Accommodation xxxxxxxxx
The theory of benevolent neutrality or accommodation is premised on We are a religious people whose institutions presuppose a Supreme
a different view of the “wall of separation,” associated with Williams, Being. We guarantee the freedom to worship as one chooses . . . When the
founder of the Rhode Island colony. Unlike the Jeffersonian wall that is state encourages religious instruction or cooperates with religious
meant to protect the state from the church, the wall is meant to protect the authorities by adjusting the schedule of public events, it follows the best of
church from the state.41 This doctrine was expressed in Zorach v. our traditions. For it then respects the religious nature of our people and
Clauson,42 which held, viz.: accommodates the public service to their spiritual needs. To hold that it
“The First Amendment, however, does not say that in every and all may not would be to find in the Constitution a requirement that the
respects there shall be a separation of Church and State. Rather, it government show a callous indifference to religious groups . . . But we find
studiously defines the manner, the specific ways, in which there shall be no constitutional requirement which makes it necessary for government to
no concert or union or dependency one or the other. That is the common be hostile to religion and to throw its weight against efforts to widen their
sense of the matter. Otherwise, the state and religion would be aliens to effective scope of religious influence.”43
each other—hostile, suspicious, and even unfriendly. Churches could not Benevolent neutrality recognizes that religion plays an important role in
be required to pay even property taxes. Municipalities would not be the public life of the United States as shown by many traditional
permitted to render police or fire protection to religious groups. Policemen government practices which, to strict neutrality, pose Establishment
who helped parishioners into their places of worship would violate the Clause questions. Among these are the inscription of “In God We Trust” on
Constitution. Prayers in our legislative halls; the appeals to the Almighty American currency; the recognition of America as “one nation under God”
in the messages of the Chief Executive; the proclamations making in the official pledge of allegiance to the flag; the Supreme Court’s time-
Thanksgiving Day a holiday; “so help me God” in our courtroom oaths— honored practice of opening oral argument with the invocation “God save
these and all other references to the Almighty that run through our laws, the United States and this Honorable Court”; and the practice of Congress
our public rituals, our ceremonies would be flouting the First Amend- and every state legislature of paying a chaplain, usually of a particular
Protestant denomination, to lead representatives in prayer. These
_______________ practices clearly show the preference for one theological viewpoint—the
existence of and potential for intervention by a god—over the contrary
41I.e., the “garden” of the church must be walled in for its own theological viewpoint of atheism. Church and government agencies also
protection from the “wilderness” of the world with its potential for cooperate in the building of low-cost housing and in other forms of poor
corrupting those values so necessary to religious commitment. According relief, in the
to Williams, this wall is breached, for the church is in the state, and so the
18
_______________ inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a “burdensome effect”
43 Zorach v. Clauson, 343 U.S. 306, 312-314 (1951). on religious exercise.
41 The benevolent neutrality theory believes that with respect to these
VOL. 492, JUNE 22, 2006 41 governmental actions, accommodation of religion may be allowed, not to
promote the government’s favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. The purpose
treatment of alcoholism and drug addiction, in foreign aid and other
of accommodation is to remove a burden on, or facilitate the exercise of,
government activities with strong moral dimension.44 Examples of
a person’s or institution’s religion. As Justice Brennan explained, the
accommodations in American jurisprudence also abound, including, but
“government [may] take religion into account . . . to exempt, when
not limited to the U.S. Court declaring the following acts as constitutional:
possible, from generally applicable governmental
a state hiring a Presbyterian minister to lead the legislature in daily
regulation individuals whose religious beliefs and practices would
prayers,45 or requiring employers to pay workers compensation when the
otherwise thereby be infringed, or to create without state involvement an
resulting inconsistency between work and Sab-bath leads to
atmosphere in which voluntary religious exercise may flourish.”51 In the
discharge;46 for government to give money to religiously-affiliated
ideal world, the legislature would recognize the religions and their
organizations to teach adolescents about proper sexual behavior;47 or to
practices and would consider them, when practical, in enacting laws of
provide religious school pupils with books;48 or bus rides to religious
general application. But when the legislature fails to do so, religions that
schools;49 or with cash to pay for state-mandated standardized tests.50
are threatened and burdened may turn to the courts for protection.52
(1) Legislative Acts and the Free Exercise Clause Thus, what is sought under the theory of accommodation is not a
As with the other rights under the Constitution, the rights embodied in the declaration of unconstitutionality of a facially neutral law, but an
Religion clauses are invoked in relation to governmental action, almost exemption from its application or its “burdensome effect,” whether by the
invariably in the form of legislative acts. legislature or the
Generally speaking, a legislative act that purposely aids or inhibits
religion will be challenged as unconstitutional, either because it violates _______________
the Free Exercise Clause or the Establishment Clause or both. This is true
whether one subscribes to the separationist approach or the benevolent 51 Cited in McConnel, M., Accommodation of Religion: An Update and
neutrality or accommodationist approach. a Response to the Critics, 60 THE GEORGE WASHINGTON LAW
REVIEW 685, 688. See Estrada v. Escritor, 455 Phil. 411, 522-523; 408
_______________ SCRA 1, 121 (2003).
52 Estrada v. Escritor, 455 Phil. 411, 482; 408 SCRA 1, 85
44 Estrada v. Escritor, 455 Phil. 411, 521-522; 408 SCRA 1, 120 (2003). (2003), citing Carter, S., The Resurrection of Religious Freedom, 107
45 Marsh v. Chambers, 463 US 783, 792-93 (1983). HARVARD LAW REVIEW 118, 1280129 (1993).
46 Sherbert v. Verner, 374 US 398, 403-04 (1963).
43
47 Bowen v. Kendrick, 487 US 589, 611 (1988).
48 Board of Education v. Allen, 392 US 236, 238 (1968).
VOL. 492, JUNE 22, 2006 43
49 Everson v. Board of Education, 330 US 1, 17 (1947). Estrada vs. Escritor
50 Committee for Public Education and Religious Liberty v. Regan, 444 courts.53 Most of the free exercise claims brought to the U.S. Court are for
US 646, 653-54 (1980). exemption, not invalidation of the facially neutral law that has a
42 “burdensome” effect.54
42 SUPREME COURT REPORTS ANNOTATED (2) Free Exercise Jurisprudence: Sherbert, Yoder
Estrada vs. Escritor and Smith
But the more difficult religion cases involve legislative acts which have a The pinnacle of free exercise protection and the theory of accommodation
secular purpose and general applicability, but may incidentally or in the U.S. blossomed in the case of Sherbert v. Verner,55 which ruled that
19
state regulation that indirectly restrains or punishes religious belief or gravest abuses, endangering paramount interests, give occasion for
conduct must be subjected to strict scrutiny under the Free Exercise permissible limitation.’ ”58 The Court found that there was no such
Clause.56 According to Sherbert, when a law of general application compelling state interest to override Sherbert’s religious liberty. It added
infringes religious exercise, albeit incidentally, the state interest sought to that even if the state could show that Sherbert’s exemption would pose
be promoted must be so paramount and compelling as to override the free serious detrimental effects to the unemployment compensation fund and
exercise claim. Otherwise, the Court itself will carve out the exemption. scheduling of work, it was incumbent upon the state to show that no
In this case, Sherbert, a Seventh Day Adventist, claimed alternative means of regulations would address such detrimental effects
unemployment compensation under the law as her employment was without infringing religious liberty. The state, however, did not discharge
terminated for refusal to work on Saturdays on religious grounds. Her this burden. The Court thus carved out for Sherbert an exemption from the
claim was denied. She sought recourse in the Supreme Court. In laying Saturday work requirement that caused her disqualification from claiming
down the standard for determining whether the denial of benefits could the unemployment benefits. The Court reasoned that upholding the denial
withstand constitutional scrutiny, the Court ruled, viz.: of Sherbert’s benefits would force her to choose between receiving benefits
and following her religion. This choice placed “the same kind of burden
_______________ upon the free exercise of religion as would a fine imposed against (her) for
her Sat-
53 Id., at p. 482; p. 85, citing Sullivan, K., Religion and Liberal
Democracy, 59 THE UNIVERSITY OF CHICAGO LAW REVIEW 195, 214- _______________

215 (1992).
54 Id. 57 Sherbert v. Verner, 374 U.S. 398, 403 (1963).
55 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, 58 Id., at p. 406.
Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More 45
Rotted Fruit From Employment Division v. Smith, 80 CHI.-KENT L. REV. VOL. 492, JUNE 22, 2006 45
1287, 1302 (2005).
56 Carmella, Angela C., State Constitutional Protection of Religious
urday worship.” This germinal case of Sherbert firmly established the
Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.REV. 275,
exemption doctrine,59 viz.:
277 (1993).
It is certain that not every conscience can be accommodated by all the laws
44
of the land; but when general laws conflict with scruples of
44 SUPREME COURT REPORTS ANNOTATED conscience, exemptions ought to be granted unless some
Estrada vs. Escritor “compelling state interest” intervenes.
“Plainly enough, appellee’s conscientious objection to Saturday work Thus, Sherbert and subsequent cases held that when government action
constitutes no conduct prompted by religious principles of a kind within burdens, even inadvertently, a sincerely held religious belief or practice,
the reach of state legislation. If, therefore, the decision of the South the state must justify the burden by demonstrating that the law embodies
Carolina Supreme Court is to withstand appellant’s constitutional a compelling interest, that no less restrictive alternative exists, and that a
challenge, it must be either because her disqualification as a religious exemption would impair the state’s ability to effectuate its
beneficiary represents no infringement by the State of her compelling interest. As in other instances of state action affecting
constitutional right of free exercise, or because any incidental fundamental rights, negative impacts on those rights demand the highest
burden on the free exercise of appellant’s religion may be justified level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test
by a “compelling state interest in the regulation of a subject within resulted in court-mandated religious exemptions from facially-neutral
the State’s constitutional power to regulate. . .”57 (emphasis supplied) laws of general application whenever unjustified burdens were found.60
The Court stressed that in the area of religious liberty, it is basic Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again
that it is not sufficient to merely show a rational relationship of ruled that religious exemption was in order, notwithstanding that the
the substantial infringement to the religious right and a colorable law of general application had a criminal penalty. Using heightened
state interest. “(I)n this highly sensitive constitutional area, ‘[o]nly the scrutiny, the Court overturned the conviction of Amish parents for
20
violating Wisconsin compulsory school-attendance laws. The Court, in conduct protected by the Free Exercise Clause of the First
effect, granted exemption from a neutral, criminal statute Amendment and thus beyond the power of the State to control,
even under regulations of general applicability. . . . This case,
_______________ therefore, does not become easier because respondents were convicted for
their “actions” in refusing to send their children to the public high school;
59 Estrada v. Escritor, 455 Phil. 411, 495; 408 SCRA 1, 98 in this context belief and action cannot be neatly confined in logic-tight
(2003), citing Lupu, I., The Religion Clauses and Justice Brennan in Full, compartments . . .”62
87 CALIFORNIA LAW REVIEW 1105, 1114, 1105 and 1110 (1999)
60 Carmella, Angela C., State Constitutional Protection of Religious _______________
Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.REV. 275,
277 (1993). 62Id., at pp. 214-215, 219-220.
61 406 U.S. 205 (1972). 47
46 VOL. 492, JUNE 22, 2006 47
Estrada vs. Escritor The cases of Sherbert and Yoder laid out the following doctrines: (a) free
that punished religiously motivated conduct. Chief Justice Burger, writing exercise clause claims were subject to heightened
for the majority, held, viz.: scrutiny or compelling interest test if government substantially
“It follows that in order for Wisconsin to compel school attendance beyond burdened the exercise of religion; (b) heightened scrutiny or compelling
the eighth grade against a claim that such attendance interferes with the interest test governed cases where the burden was direct, i.e., the
practice of a legitimate religious belief, it must appear either that the exercise of religion triggered a criminal or civil penalty, as well as
State does not deny the free exercise of religious belief by its cases where the burden was indirect, i.e., the exercise of religion resulted
requirement, or that there is a state interest of sufficient in the forfeiture of a government benefit;63 and (c) the Court could carve
magnitude to override the interest claiming protection under the out accommodations or exemptions from a facially neutral law of general
Free Exercise Clause. Long before there was general acknowledgement application, whether general or criminal.
of the need for universal education, the Religion Clauses had specially and The Sherbert-Yoder doctrine had five main components. First, action
firmly fixed the right of free exercise of religious beliefs, and buttressing was protected—conduct beyond speech, press, or worship was included in
this fundamental right was an equally firm, even if less explicit, the shelter of freedom of religion. Neither Sherbert’s refusal to work on the
prohibition against the establishment of any religion. The values Sabbath nor the Amish parents’ refusal to let their children attend ninth
underlying these two provisions relating to religion have been zealously and tenth grades can be classified as conduct protected by the other clauses
protected, sometimes even at the expense of other interests of admittedly of the First Amendment. Second, indirect impositions on religious conduct,
high social importance. . . such as the denial of twenty-six weeks of unemployment insurance benefits
The essence of all that has been said and written on the subject is to Adel Sherbert, as well as direct restraints, such as the criminal
that only those interests of the highest order and those not prohibition at issue in Yoder, were prohibited. Third, as the language in
otherwise served can overbalance legitimate claims to the free the two cases indicate, the protection granted was extensive. Only
exercise of religion. . . extremely strong governmental interests justified impingement on
. . . our decisions have rejected the idea that religiously grounded religious conduct, as the absolute language of the test of the Free Exercise
conduct is always outside the protection of the Free Exercise Clause. It is Clause suggests.64
true that activities of individuals, even when religiously based, are often Fourth, the strong language was backed by a requirement that the
subject to regulation by the States in the exercise of their undoubted power government provide proof of the important interest at stake and of the
to promote the health, safety, and general welfare, or the Federal dangers to that interest presented by the
government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad _______________
police power of the State is not to deny that there are areas of
21
63 Ivan E. Bodensteiner, The Demise of the First Amendment as a
VOL. 492, JUNE 22, 2006 49
Guarantor of Religious Freedom, 27 WHITTIER L. REV. 415, 417-418
(2005). (citations omitted)
64 See Pepper, Stephen, Conflicting Paradigms of Religious Freedom:
free exercise of religion.67 Most scholars and courts agreed that
under Sherbert and Yoder, the Free Exercise Clause provided individuals
Liberty Versus Equality, 1993 B. Y. U. L. REV. 7, 30-32 (1993).
some form of heightened scrutiny protection, if not always a compelling
48
interest one.68 The 1990 case of Employment Division, Oregon Department
48 SUPREME COURT REPORTS ANNOTATED of Human Resources v. Smith,69 drastically changed all that.
Estrada vs. Escritor Smith involved a challenge by Native Americans to an Oregon law
religious conduct at issue. Fifth, in determining the injury to the prohibiting use of peyote, a hallucinogenic substance. Specifically,
government’s interest, a court was required to focus on the effect that individuals challenged the state’s determination that their religious use of
exempting religious claimants from the regulation would have, rather than peyote, which resulted in their dismissal from employment, was
on the value of the regulation in general. Thus, injury to governmental misconduct disqualifying them from receipt of unemployment
interest had to be measured at the margin: assuming the law still applied compensation benefits.70
to all others, what would be the effect of exempting the religious claimant Justice Scalia, writing for the majority, rejected the claim that free
in this case and other similarly situated religious claimants in the future? exercise of religion required an exemption from an otherwise valid law.
Together, the fourth and fifth elements required that facts, rather than Scalia said that “[w]e have never held that an individual’s religious beliefs
speculation, had to be presented concerning how the government’s interest excuse him from compliance with an otherwise valid law prohibiting
would be harmed by excepting religious conduct from the law being conduct that the State is free to regulate. On the contrary, the record of
challenged.65 more than a century of our free exercise jurisprudence contradicts that
Sherbert and Yoder adopted a balancing test for free exercise proposition.”71 Scalia thus declared “that the right of free exercise does not
jurisprudence which would impose a discipline to prevent manipulation in relieve an individual of the obligation to comply with a ‘valid and neutral
the balancing of interests. The fourth and the fifth elements prevented the law of general applicability
likelihood of exaggeration of the weight on the governmental interest side
of the balance, by not allowing speculation about the effects of a decision _______________
adverse to those interests nor accepting that those interests would be
defined at a higher level of generality than the constitutional interests on 67 Estrada v. Escritor, 455 Phil. 411, 498; 408 SCRA 1, 99
the other side of the balance.66 (2003), citing STEPHENS, JR., O.H. AND SCHEB, II J.M., AMERICAN
Thus, the strict scrutiny and compelling state interest test significantly CONSTITUTIONAL LAW 522-523 and 526 (2nd ed. 1999).
increased the degree of protection afforded to religiously motivated 68 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
conduct. While not affording absolute immunity to religious activity, a Johnson: More Rotted Fruit From Employment Division v. Smith, 80 CHI.-
compelling secular justification was necessary to uphold public policies KENT L. REV. 1287, 1304 (2005).
that collided with religious practices. Although the members of the U.S. 69 494 U.S. 872 (1990).
Court often disagreed over which governmental interests should be 70 Chemerinsky, Erwin, Constitutional Law: Principles and
considered compelling, thereby producing dissenting and separate opinions Policies 1211 (2nd ed. 2002).
in religious conduct cases, this general test established a strong 71 494 U.S. 872, 878-889 (1990), cited in CHEMERINSKY,
presumption in favor of the ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1211
(2nd ed. 2002).
_______________ 50
65Id., at pp. 30-32.
66Id.
of the ground that the law proscribes (or prescribes) conduct that his
49
religion prescribes (or proscribes).’ ”72
22
Justice Scalia’s opinion then reviewed the cases where free exercise Justice O’Connor wrote a concurring opinion sharply criticizing the
challenges had been upheld—such as Cantwell, Murdock, Follet, rejection of the compelling state interest test, asserting that “(t)he
Pierce, and Yoder—and said that none involved the free exercise clause compelling state interest test effectuates the First Amendment’s command
claims alone. All involved “the Free Exercise Clause in conjunction with that religious liberty is an independent liberty, that it occupies a preferred
other constitutional protections, such as freedom of speech and of the press, position, and that the Court will not permit encroachments upon this
or the right of parents to direct the education of their children.”73 The Court liberty, whether direct or indirect, unless required by clear and compelling
said that Smith was distinguishable because it did not involve such a government interest ‘of the highest order.’ ”78 She said that strict scrutiny
“hybrid situation,” but was a free exercise claim “unconnected with any is appropriate for free exercise challenges because “[t]he compelling
communicative activity or parental right.”74 interest test reflects the First Amendment’s mandate of preserving
Moreover, the Court said that the Sherbert line of cases applied only in religious liberty to the fullest extent possible in a pluralistic society.”79
the context of the denial of unemployment benefits; it did not create a basis Justice O’Connor also disagreed with the majority’s description of prior
for an exemption from criminal laws. Scalia wrote that “[e]ven if we were cases and especially its leaving the protec-
inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a _______________
generally applicable criminal law.”75
The Court expressly rejected the use of strict scrutiny for challenges to 76 494 U.S. 872, 888 (1990), cited in Chemerinsky,
neutral laws of general applicability that burden religion. Justice Scalia Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
said that “[p]recisely because ‘we are a cosmopolitan nation made up of 77 See Chemerinsky, Erwin, Constitutional Law: Principles and
people of almost conceivable religious preference,’ and precisely because we Policies 1213 (2nd ed. 2002).
value and protect that religious divergence, we cannot afford the luxury of 78 Employment Division v. Smith, 494 U.S. 872, 906 (1990).
deeming presumptively invalid, as applied to the religious objector, every (O’Connor, J. concurring in the judgment) This portion of her concurring
regulation of conduct that does not opinion was supported by Justices Brennan, Marshall and Blackmun who
dissented from the Court’s decision; cited in CHEMERINSKY,
_______________ ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212
(2nd ed. 2002).
72 494 U.S. 872, 879 (1990), cited in Chemerinsky, 79 Id., at p. 903. (O’Connor, J. concurring in the judgment), cited
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002). in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
73 494 U.S. 872, 881 (1990), cited in Chemerinsky, AND POLICIES 1212 (2nd ed. 2002).
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002). 52
74 494 U.S. 872, 882 (1990), cited in Chemerinsky, 52 SUPREME COURT REPORTS ANNOTATED
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
75 494
U.S. 872, 884 (1990), cited in Chemerinsky,
tion of minority religions to the political process. She said that, “First
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
Amendment was enacted precisely to protect the rights of those whose
51
religious practice are not shared by the majority and may be viewed with
VOL. 492, JUNE 22, 2006 51 hostility.”80
Estrada vs. Escritor Justice Blackmun wrote a dissenting opinion that was joined by
protect an interest of the highest order.” The Court said that those seeking Justices Brennan and Marshall. The dissenting Justices agreed with
religious exemptions from laws should look to the democratic process for Justice O’Connor that the majority had mischaracterized precedents, such
protection, not the courts.76 Smith thus changed the test for the free as in describing Yoder as a “hybrid” case rather than as one under the free
exercise clause. Strict or heightened scrutiny and the compelling exercise clause. The dissent also argued that strict scrutiny should be used
justification approach were abandoned for evaluating laws burdening in evaluating government laws burdening religion.81
religion; neutral laws of general applicability only have to meet the rational Criticism of Smith was intense and widespread.82 Academics, Justices,
basis test, no matter how much they burden religion.77 and a bipartisan majority of Congress noisily denounced the
23
decision.83 Smith has the rather unusual distinction of being one case that _______________
is almost universally despised (and this is not too strong a word) by both
the liberals and conservatives.84 Liberals chasten the Court for its hostility 86 Estrada v. Escritor, 455 Phil. 411, 501; 408 SCRA 1, 102
to minority faiths which, in light of Smith’s general applicability rule, will (2003), citing McConnell, M., Accommodation of Religion: An Update and
allegedly suffer at the hands of the majority faith whether through outright a Response to the Critics, 60 THE GEORGE WASHINGTON LAW
hostility or neglect. Conservatives bemoan the decision as an assault on REVIEW 685, 726 (1992).
religious belief leaving religion, more than ever, subject to the caprice of an 87 Id., at p. 482, citing McCoy, T., A Coherent Methodology for First
ever more secular nation that is increasingly hostile to religious belief as Amendment Speech and Religion Clause Cases, 48 VANDERBILT LAW
an oppressive and archaic anachronism.85 REVIEW, 1335, 1350-1352 (1995).
88 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56
_______________ HASTINGS L.J. 699 (2005).

80 Id., at p. 902. (O’Connor, J. concurring in the judgment) cited (2003), citing II DUCAT, C., CONSTITUTIONAL
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES INTERPRETATION 1180 & 1191 (2000). See also Sullivan, K., Religion
AND POLICIES 1212 (2nd ed. 2002). and Liberal Democracy, 59 THE UNIVERSITY OF CHICAGO LAW
81 Id., at pp. 908-909. (Blackmun, J. dissenting), cited REVIEW 195, 216 (1992).
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES 90 Id., at p. 502; p. 103, citing McConnell, M., Religious Freedom at a
AND POLICIES 1213 (2nd ed. 2002). Crossroads, 59 THE UNIVERSITY OF CHICAGO LAW REVIEW 115, 139
82 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 (1992).
HASTINGS L.J. 699 (2005). 91 Id., citing Sullivan, K., Religion and Liberal Democracy, 59 THE
83 Id. UNIVERSITY OF CHICAGO LAW REVIEW 195, 216 (1992).
84 Aden, Steven H. & Strang, Lee J., When a “Rule” Doesn’t Rule: The 54
Failure of the Oregon Employment Division v. Smith “Hybrid Rights 54 SUPREME COURT REPORTS ANNOTATED
Exception,” 108 PENN. ST. L. REV. 573, 581 (2003).
85 Id.
just as effectively as those that target religion.92 Government impairment
53
of religious liberty would most often be of the inadvertent kind as
VOL. 492, JUNE 22, 2006 53 in Smith considering the political culture where direct and deliberate
Estrada vs. Escritor regulatory imposition of religious orthodoxy is nearly inconceivable. If the
The Smith doctrine is highly unsatisfactory in several respects and has Free Exercise Clause could not afford protection to inadvertent
been criticized as exhibiting a shallow understanding of free exercise interference, it would be left almost meaningless.93 Third, the Reynolds-
jurisprudence.86 First, the First amendment was intended to protect Gobitis-Smith94 doctrine simply defies common sense. The state should not
minority religions from the tyranny of the religious and political be allowed to interfere with the most deeply held fundamental religious
majority.87 Critics of Smith have worried about religious minorities, who convictions of an individual in order to pursue some trivial state economic
can suffer disproportionately from laws that enact majoritarian or bureaucratic objective. This is especially true when there are alternative
mores.88 Smith, in effect would allow discriminating in favor of approaches for the state to effectively pursue its objective without serious
mainstream religious groups against smaller, more peripheral groups who inadvertent impact on religion.95
lack legislative clout,89 contrary to the original theory of the First At bottom, the Court’s ultimate concern in Smith appeared to be two-
Amendment.90 Undeniably, claims for judicial exemption emanate almost fold: (1) the difficulty in defining and limiting the term “religion” in today’s
invariably from relatively politically powerless minority religions pluralistic society, and (2) the belief that courts have no business
and Smith virtually wiped out their judicial recourse for determining the significance of an individual’s religious beliefs. For
exemption.91 Second, Smith leaves too much leeway for pervasive welfare- the Smith Court, these two concerns appear to lead to the conclusion that
state regulation to burden religion while satisfying neutrality. After all, the Free Exercise Clause must protect everything or it must protect
laws not aimed at religion can hinder observance virtually nothing. As a result, the Court perceives its only viable options
24
are to leave free exercise protection to the political process or to allow a It is not clear whom the Court feels would be most hurt by this “parade
“system in which each conscience of horribles.” Surely not religious individuals; they would undoubtedly
prefer their religious beliefs to be probed for sincerity and significance
_______________ rather than acquiesce to the Court’s approach of simply refusing to grant
any constitutional significance to their beliefs at all. If the Court is
92 Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 concerned about requiring lawmakers at times constitutionally to exempt
HASTINGS L.J. 699 (2005). religious individuals from statutory provisions, its concern is misplaced. It
93 Estrada v. Escritor, 455 Phil. 411, 502; 408 SCRA 1, 102 is the lawmakers who have sought to prevent the Court from dismantling
(2003), citing McCoy, T., A Coherent Methodology for First Amendment the Free Exercise Clause through such legislation as the [Religious
Speech and Religion Clause Cases, 48 VANDERBILT LAW REVIEW, 1335, Freedom Restoration Act of 1993], and in any case, the Court should not
1350-1351 (1995). be overly concerned about hurting legislature’s feelings by requiring their
94 Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v. laws
Gobitis, 310 U.S. 586 (1940); and Employment Division, Oregon
Department of Human Resources v. Smith, 494 U.S. 872 (1990). _______________
(2003), citing McCoy, T., A Coherent Methodology for First Amendment 96 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
Speech and Religion Clause Cases, 48 VANDERBILT LAW REVIEW, 1335, Johnson: More Rotted Fruit From Employment Division v. Smith, 80 CHI.-
1350-1351 (1995). KENT L. REV. 1287, 1327 (2005).
55 56
VOL. 492, JUNE 22, 2006 55 56 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor Estrada vs. Escritor
is a law unto itself.”96 The Court’s characterization of its choices have been to conform to constitutional dictates. Perhaps the Court is concerned about
soundly rejected as false, viz.: putting such burden on judges. If so, it would truly be odd to say that
“If one accepts the Court’s assumption that these are the only two viable requiring the judiciary to perform its appointed role as constitutional
options, then admittedly, the Court has a stronger argument. But the Free interpreters is a burden no judge should be expected to fulfill.”97
Exercise Clause cannot be summarily dismissed as too difficult to apply Parenthetically, Smith’s characterization that the U.S. Court has “never
and this should not be applied at all. The Constitution does not give the held that an individual’s religious beliefs excuse him from compliance with
judiciary the option of simply refusing to interpret its provisions. The First an otherwise valid law prohibiting conduct that the state is free to
Amendment dictates that free exercise of “religion” must be protected. regulate”—an assertion which Mr. Justice Carpio adopted unequivocally
Accordingly, the Constitution compels the Court to struggle with the in his dissent—has been sharply criticized even implicitly by its
contours of what constitutes “religion.” There is no constitutional opt-out supporters, as blatantly untrue. Scholars who supported Smith frequently
provision for constitutional words that are difficult to apply. did not do so by opposing the arguments that the Court was wrong as a
Nor does the Constitution give the Court the option of simply ignoring matter of original meaning [of the religion clauses] or that the decision
constitutional mandates. A large area of middle ground exists between the conflicted with precedent [i.e. the Smith decision made shocking use of
Court’s two opposing alternatives for free exercise jurisprudence. precedent]—those points were often conceded.98
Unfortunately, this middle ground requires the Court to tackle difficult To justify its perversion of precedent, the Smith Court attempted to
issues such as defining religion and possibly evaluating the significance of distinguish the exemption made in Yoder, by asserting that these were
a religious belief against the importance of a specific law. The Court premised on two constitutional rights combined—the right of parents to
describes the results of this middle ground where “federal judges will direct the education of their children and the right of free exercise of
regularly balance against the importance of general laws the significance religion. Under the Court’s opinion in Smith, the right of free exercise of
of religious practice,” and then dismisses it as a “parade of horribles” that religion standing alone would not allow Amish parents to disregard the
is too “horrible to contemplate.” compulsory school attendance law, and under the Court’s opinion in Yoder,
parents whose objection to the law was not religious would also have to
25
obey it. The fatal flaw in this argument, however, is that if two 101 Estrada v. Escritor, 455 Phil. 411, 502; 408 SCRA 1, 103
constitutional claims will (2003), citing Carter, S., The Resurrection of Religious Freedom, 107
HARVARD LAW REVIEW 118 (1993).
_______________ 102 42 U.S.C. §2000bb.
103 42 U.S.C. §2000bb, Sec. (a) (4), cited in CHEMERINSKY,
97 Bodensteiner, Ivan E., The Demise of the First Amendment As a ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1216
Guarantor of Religious Freedom, 27 WHITTIER L. REV. 415, 419 (2005). (2nd ed. 2002).
98 Aden, Steven H & Strang, Lee J., When a “Rule” Doesn’t Rule: The 58
Failure of the Oregon Employment Division v. Smith “Hybrid Rights 58 SUPREME COURT REPORTS ANNOTATED
Exception,” 108 PENN. ST. L. REV. 573, 584 (2003).
57
government.104 The RFRA thus sought to overrule Smith and make strict
VOL. 492, JUNE 22, 2006 57 scrutiny the test for all free exercise clause claims.105
Estrada vs. Escritor In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the
fail on its own, how would it prevail if combined?99 As for Sherbert, RFRA unconstitutional, ruling that Congress had exceeded its power under
the Smith Court attempted to limit its doctrine as applicable only to the Fourteenth Amendment in enacting the law. The Court ruled that
denials of unemployment compensation benefits where the religiously- Congress is empowered to enact laws “to enforce the amendment,” but
compelled conduct that leads to job loss is not a violation of criminal law. Congress is not “enforcing” when it creates new constitutional rights or
And yet, this is precisely why the rejection of Sherbert was so damaging in expands the scope of rights.107
its effect: the religious person was more likely to be entitled to City of Boerne also drew public backlash as the U.S. Supreme Court
constitutional protection when forced to choose between religious was accused of lack of judicial respect for the constitutional decision-
conscience and going to jail than when forced to choose between religious making by a coordinate branch of government. In Smith, Justice Scalia
conscience and financial loss.100 wrote:
Thus, the Smith decision elicited much negative public reaction “Values that are protected against governmental interference through
especially from the religious community, and commentaries insisted that enshrinement in the Bill of Rights are not thereby banished from the
the Court was allowing the Free Exercise Clause to disappear.101 So much political process. Just as society believes in the negative protection
was the uproar that a majority in Congress was convinced to enact the accorded to the press by the First Amendment is likely to enact laws that
Religious Freedom Restoration Act (RFRA) of 1993.102 The RFRA was affirmatively foster the dissemination of the printed word, so also a society
adopted to negate the Smith test and require strict scrutiny for free that believes in the negative protection accorded to religious belief can be
exercise claims. Indeed, the findings section of the Act notes expected to be solicitous of that value in its legislation as well.”
that Smith “virtually eliminated the requirement that the government
justify burdens on religious exercise imposed by laws neutral toward _______________
religion.”103 The Act declares that its purpose is to restore the compelling
interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and 104 Id.
to guarantee its application in all cases where free exercise of religion is 105 Chemerinsky, Erwin, Constitutional Law: Principles and
substantially burdened; and to provide a claim of defense to a person whose Policies 1212 (2nd ed. 2002).
religious exercise is substantially burdened by 106 City of Boerne v. Flores, 521 U.S. 507 (1997), cited
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
_______________ AND POLICIES 1216 (2nd ed. 2002).
107 City of Boerne clearly invalidated the RFRA as applied to state and
99 See Cohen, William & Danelski, David J., Constitutional Law: Civil local governments, but did not resolve the constitutionality of the law as
Liberty and Individual Rights 620-621 (4th ed. 1997). applied to the federal government. Some federal courts have expressly
100 Id. ruled that the RFRA is constitutional as applied to the federal
26
government. See CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: The effect of Smith is to erase entirely the concept of mandatory
PRINCIPLES AND POLICIES 1216 (2nd ed. 2002). accommodations, thereby emasculating the Free Exercise
59 Clause. Smith left religious freedom for many in the hands of the political
VOL. 492, JUNE 22, 2006 59 process, exactly where it would be if the religion clauses did not exist in the
Bill of Rights. Like most protections found in the Bill of Rights, the religion
clauses of the First Amendment are most important to those who cannot
By invalidating RFRA, the Court showed a marked disrespect of the
prevail in the political process. The Court in Smith ignores the fact that
solicitude of a nearly unanimous Congress. Contrary to the Court’s
the protections found in the Bill of Rights were deemed too important to
characterization of the RFRA as a kind of usurpation of the judicial power
leave to the political process. Because mainstream religions generally have
to say what the Constitution means, the law offered no definition of Free
been successful in protecting their interests through the political process,
Exercise, and on its face appeared to be a procedural measure establishing
it is the non-mainstream religions that are adversely affected by Smith. In
a standard of proof and allocating the duty of meeting it. In effect, the
short, the U.S. Supreme Court has made it clear to such religions that they
Court ruled that Congress had no power in the area of religion. And yet,
should not look to the First Amendment for religious freedom.110
Free Exercise exists in the First Amendment as a negative on Congress.
The power of Congress to act towards the states in matters of religion (3) Accommodation under the Religion Clauses
arises from the Fourteenth Amendment.108 A free exercise claim could result to three kinds of accommodation: (a)
From the foregoing, it can be seen that Smith, while expressly those which are found to be constitutionally compelled, i.e., required by the
recognizing the power of legislature to give accommodations, is in effect Free Exercise Clause; (b) those which are discretionary or legislative, i.e.,
contrary to the benevolent neutrality or accommodation approach. not required by the Free Exercise Clause but nonetheless permitted by the
Moreover, if we consider the history of the incorporation of the religion Establishment Clause; and (c) those which the religion clauses prohibit.111
clauses in the U.S., the decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith. Smith is dangerous _______________
precedent because it subordinates fundamental rights of religious belief
and practice to all neutral, general legislation. Sherbert recognized the
109 Carmella, Angela C., State Constitutional Protection of Religious
need to protect religious exercise in light of the massive increase in the size Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.REV. 275,
of government, the concerns within its reach, and the number of laws 278 (1993).
110 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
administered by it. However, Smith abandons the protection of religious
exercise at a time when the scope and reach of government has never been Johnson: More Rotted Fruit From Employment Division v. Smith, 80 CHI.-
greater. It has been pointed out that Smith creates the legal framework for KENT L. REV. 1287, 1327 (2005).
111 Estrada v. Escritor, 455 Phil. 411, 526; 408 SCRA 1, 124 (2003).
persecution: through general, neutral laws, legislatures are now able to
force con- 61
VOL. 492, JUNE 22, 2006 61
_______________ Estrada vs. Escritor
Mandatory accommodation results when the Court finds that
108 See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr., Religious accommodation is required by the Free Exercise Clause, i.e., when the
Freedom: History, Cases, and Other Materials on the Interaction of Religion Court itself carves out an exemption. This accommodation occurs when all
and Government 531 (2001). three conditions of the compelling interest test are met, i.e., a statute or
60 government action has burdened claimant’s free exercise of religion, and
60 SUPREME COURT REPORTS ANNOTATED there is no doubt as to the sincerity of the religious belief; the state has
Estrada vs. Escritor failed to demonstrate a particularly important or compelling governmental
formity on religious minorities whose practice irritate or frighten an goal in preventing an exemption; and that the state has failed to
intolerant majority.109 demonstrate that it used the least restrictive means. In these cases, the
Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or
27
hostility could explain a refusal to make exemptions. Thus, if the state’s interest test which is most in line with the benevolent neutrality-
objective could be served as well or almost as well by granting an accommodation approach.
exemption to those whose religious beliefs are burdened by the regulation, Under the benevolent-neutrality theory, the principle underlying the
the Court must grant the exemption. The Yoder case is an example where First Amendment is that freedom to carry out one’s duties to a Supreme
the Court held that the state must accommodate the religious beliefs of the Being is an inalienable right, not
Amish who objected to enrolling their children in high school as required
by law. The Sherbert case is another example where the Court held that _______________
the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.112 113 Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
In permissive accommodation, the Court finds that the State may, 114 343 U.S. 306 (1952).
but is not required to, accommodate religious interests. The U.S. Walz 115 463 U.S. 783 (1983).
case illustrates this situation where the U.S. Supreme Court upheld the 116 McConnell, M., Accommodation of Religion: An Update and a
constitutionality of tax exemption given by New York to church properties, Response to the Critics, 60 THE GEORGE WASHINGTON LAW REVIEW
but did not rule that the state was required to provide tax exemptions. The 685, 715 (1992).
Court declared that “(t)he limits of permissible state accommodation to 117 333 U.S. 203 (1948).
religion are by no means co-extensive with the noninterference mandated 118 Estrada v. Escritor, 455 Phil. 411, 527; 408 SCRA 1, 126
by the Free Exercise (2003), citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR
RELIGIOUS LIBERTY 61-63 (1980).
_______________ 63
VOL. 492, JUNE 22, 2006 63
112 Id., at p. 527; p. 125, citing Buzzard, L., Ericsson, S., The Battle for
Religious Liberty 61-62 (1980).
one dependent on the grace of legislature. Religious freedom is seen as a
62
substantive right and not merely a privilege against discriminatory
62 SUPREME COURT REPORTS ANNOTATED legislation. With religion looked upon with benevolence and not hostility,
Estrada vs. Escritor benevolent neutrality allows accommodation of religion under certain
Clause.”113 Other examples are Zorach v. Clauson,114 allowing released circumstances.
time in public schools and Marsh v. Chambers,115 allowing payment of Considering that laws nowadays are rarely enacted specifically to
legislative chaplains from public funds. Parenthetically, the Court disable religious belief or practice, free exercise disputes arise commonly
in Smith has ruled that this is the only accommodation allowed by the when a law that is religiously neutral and generally applicable on its face
Religion Clauses. is argued to prevent or burden what someone’s religious faith requires, or
Finally, when the Court finds no basis for a mandatory accommodation, alternatively, requires someone to undertake an act that faith would
or it determines that the legislative accommodation runs afoul of the preclude. In essence, then, free exercise arguments contemplate religious
establishment or the free exercise clause, it results to a prohibited exemptions from otherwise general laws.119
accommodation. In this case, the Court finds that establishment Strict scrutiny is appropriate for free exercise challenges because “[t]he
concerns prevail over potential accommodation interests. To say that there compelling interest test reflects the First Amendment’s mandate of
are valid exemptions buttressed by the Free Exercise Clause does not mean preserving religious liberty to the fullest extent possible in a pluralistic
that all claims for free exercise exemptions are valid.116 An example where society.120 Underlying the compelling state interest test is the notion that
accommodation was prohibited is McCollum v. Board of free exercise is a fundamental right and that laws burdening it should be
Education,117 where the Court ruled against optional religious instruction subject to strict scrutiny.121
in the public school premises.118 In its application, the compelling state interest test follows a three-
Given that a free exercise claim could lead to three different results, the step process, summarized as follows:
question now remains as to how the Court should determine which action
to take. In this regard, it is the strict scrutiny-compelling state
28
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary
_______________
119 Kmiec, Douglas W. & Presser, Stephen B., Individual Rights and the
American Constitution 105 (1998).

120 Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited
in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES

AND POLICIES 1212 (2nd ed. 2002).
121 See, e.g. Michael McConnell, Free Exercise Revisionism and the
Smith Decision, 57 U. CHI. L. REV. 1109 (1990); Jesse
29

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A.M. No. P-02-1651. June 22, 2006.

* interpretation which has long attained finality, it also runs counter to

Antonio Manzano for complainant. Sec. 46. Discipline: General Provisions.—

this union. 10 Id., at p. 452; p. 58.

Signed this 28th day of July 1991. 11 Id., at p. 449; p. 55.

SCRA 1, 63-73 (2003).

Liberty and Individual Rights 565 (4th ed. 1997).

Democracy, 59 THE UNIVERSITY OF CHICAGO LAW REVIEW 195, 214- _______________

_______________ HASTINGS L.J. 699 (2005).

American Constitution 105 (1998).

in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES

Smith Decision, 57 U. CHI. L. REV. 1109 (1990); Jesse

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