Ignatius Michael D. Ingles The Yellow Wood 62 ALJ 403 2017
Ignatius Michael D. Ingles The Yellow Wood 62 ALJ 403 2017
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The Yellow Wood: Diverging Roads on
Mandatory Religious Exemption Regimes
in the United States and the Philippines
Ignatius Michael D. Ingles*
I. INTRODUCTION..........................................403
A. A Note From Mr. Frost
B. A Claim Against Exemptions
C. Roadmap
II. SHARED TEXT, SHARED VALUES, AND SHARED HISTORY..........407
III. THERE AND BACK AGAIN: THE FIRST AMENDMENT AND
MANDATORY EXEMPTIONS .......................... 410
A.Era of Secular Analogues
B.The Short-Lived Era of Religious Exemption
C.The Fall of Exemptions
D.The Problem with Exemptions
IV. PHILIPPINE APPROACH ............................... ..... 420
A. The PhilippineEra of Secular Analogues
B. The Era of Benevolent Neutrality: Estrada v. Escritor
C. The Misapplication of Escritor: The Current Era for Philippine
Exemptions
D. Unheeded Advice and Lessons from the American Regime
V. CONCLUSION ...................................... ...... 441
I. INTRODUCTION
* '16 LL.M., Georgetown University Law Center; '12 J.D., class salutatorian
Ateneo de Manila University School of Law. The Author currently teache
Constitutional Law, Sports and Entertainment Law, and Robots, Artificia
Intelligence, and the Law at the Ateneo de Manila University School of Law, anc
Taxation I and Taxation II at Far Eastern University Institute of Law. He formerl)
Robert L. Frost's immortal words, written more than a century ago, have
been the literary bastion for people standing on the cusp of life-changing
decisions. The poem is a call to choose, to follow our own path, and to
ultimately give it meaning.2 His iconic poem is as powerful as it is
inspirational.
Safe to say, Frost was obviously not talking about the Free Exercise
Clause (FEC) and mandatory religious exemption regimes. The Author can
imagine literary scholars scoffing and laughing at such a far-fetched and
stretched interpretation, but those familiar with American and Philippine
jurisprudence on the matter could be forgiven for interpreting the iconic
poem under the aegis of esoteric gobbledygook. The Supreme Courts of the
United States (U.S.) and the Philippines, in different periods of their
respective histories, once stood in the yellow wood of the FEC and faced the
dilemma of choosing between two diverging roads. The U.S. Supreme
Court (SCOTUS) started down one road, saw its perilous path, turned on its
heel, and chose the other path. The Philippine Supreme Court followed its
taught Legal Research and Legal Writing at the Ateneo de Manila University School
of Law and Taxation Law I, Taxation Law II, and Taxation Law Review at the
Joint Far Eastern University-De La Salle University Law Program. He previously
wrote Regulating Religious Robots: Free Exercise and RFRA in the Time of
Superintellgent Artificial Intelligence, 105 GEO. L.J- 507 (2017); Are You Sure You Want
to Post That? Examining Student Social Media Use and ConstitutionalRights, 6o ATENEO
L.J. 486 (2015); and Playing for Wages: Defining the Legal Relationship Between
Professional Athlete and Team, a Sports Law Perspective on Philippine Labor Law, 59
ATENEO L.J. 723 (2014). He also wrote TAX MADE LESS TAXING: A REVIEWER
WITH CODALS AND CASES (2015).
The Author like to express his gratitude to Georgetown Law Professors Mark
Chopko, Holly Hollman, and Marty Lederman, as well as the Ateneo Law Journal
Editorial Board, who were invaluable in the production of this Article.
2. See David C. Ward, What Gives Robert Frost's "The Road Not Taken" Its
Power?, available at http://www.smithsonianmag.com/smithsonian-
institution/what-gives-robert-frosts-road-not-taken-its-power-180956200 (last
accessed Oct. 31, 2017).
American counterpart on the first road but, despite its perils, marched
headlong. These decisions have made all the difference.
The religion clauses of both the U.S. and the Philippines are nearly identical.
However, despite the almost exact replication of the First Amendment
religion clauses in the 1987 Philippine Constitution, the interpretations o
the FEC, particularly on the issue of mandatory exemptions, differ. The
extent that these two jurisdictions have diverged in interpreting the FEC iP
both interesting and striking, especially when one considers the textual
similarities and the historical ties between the U.S. and the Philippines. The
Philippine Constitution mandates an approach of benevolent neutrality
towards religion and allows mandatory exemptions. 3 The First Amendment
does not; no exemption is forthcoming against a valid and neutral law o
general applicability.4
In this Article, the Author examines and analyzes this divergence with
the end goal of showing the pitfalls of the Philippine exemption regime. The
Author argues that while the Philippine Supreme Court's adoption of thi
mandatory exemption regime in Estrada v. Escritor5 had laudable intentions,
its framework and subsequent application in Philippine FEC cases are fraugh
with problems.
The SCOTUS faced the same problems during its experiment with a
mandatory exemption regime from 1963 to 1990. Scholars such as Professoi
Ira C. Lupu, Robert W. Tuttle, and William P. Marshall have identified the
following problems of exemption regimes: the incompetency of courts inl
judging burdens on religion, 6 the exclusion of minorities in judicial
definitions of religion, 7 the potential for inconsistent decisions due tc
individualized examination of exemption claims, 8 and the broad range oi
4. Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (citing United States v
Lee, 455 U.S. 252, 262 (1982) (J. Stevens, concurring opinion)).
5. Estrada v. Escritor, 408 SCRA i (2003).
6. IRA C. LuPu & ROBERT W. TUTTLE, SECULAR GOVERNMENT, RELIGIOUS
PEOPLE 198-99 (2014).
C. Roadmap
In critiquing the Philippine regime, the Author first gives a brief overview of
the textual similarities of the First Amendment and its counterpart in the
Philippine Constitution. The similarity shows that both legal traditions share
the fundamental constitutional value of promoting religious liberty, but at
the same time, its approach in realizing this value differs in interpretation.
Finally, the Author critiques the Philippine approach using the lessons of
the American experience with mandatory exemptions. The critique is based
on its application (or misapplication) in two Philippine Supreme Court cases
decided after the adoption of benevolent neutrality. The Author applies the
problems faced by the truncated American regime to argue against the use of
a mandatory exemption regime in the Philippines.
9. Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38
HARV.J.L. & GENDER 35, 73 (2015).
1o. Id. at 74.
The provisions of the First Amendment and the Philippine religious clauses
nearly mirror each other, thus making it incredibly notable that the
respective Supreme Courts have interpreted them differently. Beforc
discussing the difference in interpretation, the Author offers a brief rundown
of the similarities, both in the text, and in the values espoused by the
provisions. An understanding of how both jurisdictions have the same texi
and protect the same values with respect to religious clauses highlights the
breadth of the difference in the interpretation.
The First Amendment, particularly the FEC, protects religious liberty by
preventing state interference into the realm of religion. " It has beer
interpreted to protect a number of constitutional values, such as religious
voluntarism, 12 religious equality, '3 equality between believers and non-
believers,14 and respect for a person's religious (or irreligious) identity.' 5 It,
Philippine counterpart protects and recognizes the same set of values.' 6
The root of these similarly protected values is found in the text of the
religious clauses of both jurisdictions. For easy reference, both are presented
side-by-side
-
ii. School Dist. of Abington Tp. v. Schempp, 374 U.S. 203, 222-23 (1963).
12. DANIEL CONKLE, CONSTITUTIONAL LAW, THE RELIGION CLAUSES 40 (2d ed
2009). Religious voluntarism entails that religion should advance on its owr
merits without government coercion or compulsion. Id.
13. Id. at 41.
14. Id.
15. Id.
16. JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF
THE PHILIPPINES: A COMMENTARY 346 (2oo9 ed.).
U.S. Philippines
Congress shall make no law No law shall be made respecting an
respecting an establishment of establishment of religion, or
religion, or prohibiting the free prohibiting the free exercise thereof
exercise thereof.]7 The free exercise and enjoyment of
religious profession and worship,
without discrimination or
preference, shall forever be allowed.
No religious test shall be required for
the exercise of civil or political
rights. i8
The First Amendment made its first appearance in the 1935 Philippine
Constitution. 23 The records of the 1934 Constitutional Convention reveal
that the basic provision was accepted without any debate, 2 4 an indication
23. Article III, Section i (7) of the 1935 Philippine Constitution states that "[n]o
law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights." 1935
PHIL. CONST. art. III, § 1 (7) (superseded r973).
24. BERNAS, supra note 16, at 327-28. According to Philippine Constitutional Law
expert Fr. Joaquin G. Bernas, the subject of discussions revolved around
that the Philippines adopted early American FEC jurisprudence. 25 The 1973
Constitution reproduced the said provision. It likewise added anothei
provision on religion which states that "[t]he separation of [c]hurch and
[s]tate shall be inviolable."2 6 The final reiteration is found in the present 198Y
Constitution that retains the text of the 1935 and 1973 Constitutions and the
principle of inviolability of the separation between church and state.2 7
As such, one would expect that the religion clauses would be interpreted
similarly or at least in the same vein. This, however, has not been the case.
As will be explained in Chapter IV of this Article, the Philippine Supremc
Court purposefully chose a different interpretation that would "[recognize]
the religious nature of the Filipino people and the elevating influence oi
religion in society[.]" 3' In doing so, the Philippine Supreme Court embraced
concessions granted to religious sects and denominations and tax exemptions foi
properties devoted to exclusive religious use. Id.
25. Id. at 328. Fr. Bernas further notes that "the 1935 Constitution effectively
transplanted the American provision and earlier Philippine organic law anc
jurisprudence [-] except to the extent that they are modified, if indeed they
are modified, by the [religious concessions]." Id.
26. 1973 PHIL. CONST. art. XV, § 15 (superseded 1987).
27. BERNAS, supra note 16, at 328.
28. See generally Tolentino v. Secretary of Finance,
235 SCRA 630 (1994).
a regime previously adopted and then rejected - for good reason - by its
American counterpart.
The American experience has been fickle, to say the least, in terms of
mandatory exemptions under the FEC. For a substantial portion of its
history, the U.S. followed a relatively consistent interpretation of the FEC.32
At its simplest, the SCOTUS ruled that the FEC does not espouse a
constitutional right to exemption based on religious objections to general
rules of conduct imposed by the State. 3 3 There was, however, a blip in this
interpretation that led to a period of mandatory exemptions from 1963 to
1990.34 This period of mandatory exemptions ended with the landmark case
of Employment Div. v. Smith 3 5 in 1990. Why Smith brought an end to this
seemingly high-water mark for religious liberty reveals the problems
inherent in mandatory religious exemptions. These problems and a brief
history of the American exemption model are discussed below.
33. Id.
34. Id.
35. Employment Div. v. Smith, 494 U.S. 872 (1990).
36. Reynolds v. United States, 98 U.S. 145 (1878).
37. Id. at 150.
38. Id. at 161.
39. Id. at 167.
In the years leading to 1963, the Court decided on cases that seemed tc
usher in a model of mandatory exemptions. However, a closer analysis oi
these cases reveal that these actually turned on more "general claims o1
personal liberty"4 0 rather than on strict claims of religious exemptions. 4 1
Religious liberty claims were subsumed within broader and more robus
protection afforded to other liberties and rights such as free speech, equality,
and parental rights - "secular analogues," according to Professors Lupu and
Tuttle.42
Take for example Pierce v. Society of Sisters,43 a 1925 case that is familiai
to both American and Filipino lawyers and law students. Along with othei
private schools, a religious order that ran a parochial school questioned a law
that required minors to attend public school.44 The Court struck down the
law not on a theory of religious liberty but on the basis of an unjust intrusion
on the liberty of parents in general.45 The case has been (correctly) viewed a,
a protection of parental rights rather than a decision based on mandatory
religious exemption.4 6 This conclusion is bolstered by the fact that not a
single mention of the FEC can be found in the decision.
working on Saturdays. 50 As a result, she lost her job and thereafter claimed
unemployment benefits. S The State refused to grant her any benefits,
claiming that her unavailability for work was "without any good cause." 52
The SCOTUS ruled for Sherbert, stating that the denial of unemployment
benefits represented a substantial burden on her practice of religion. 53 Only a
compelling state interest may justify any substantial intrusion to the
constitutionally-protected right. 54
Sherbert was decided in direct contrast to Reynolds. Both involved general
laws and a religion-based claim, yet Sherbert was granted benefits while poor
George Reynolds languished in jail.55 While Sherbert cannot be seen as a
strict case for exemption, as it focused on a claim for benefits under a porous
definition of what "good cause" is rather than an exemption from a law,5 6 it
did provide a novel principle into FEC jurisprudence - that a general law
may violate the FEC if it imposed substantial burdens on religious
objectors.57
Yoder has been considered as the only true mandatory exemption case foi
two reasons. 64 First, unemployment benefit cases decided in the same vein as
Sherbert were not strictly exemption cases, but were claims for benefits. 6
,
Professor Lupu rightfully considers these as "false exemption" cases. 6(
Second, it was, in fact, the only case that the SCOTUS decided in favor oi
exemption, as seen in the slew of cases that followed. 67 When an Air Forcc
regulation prevented a commissioned officer who was a Jewish rabbi to weal
his yarmulke, the SCOTUS ruled against the rabbi; pertinently, there was nc
mention of Yoder in the majority decision. 68 The SCOTUS ruled in the
same manner in a prison setting, stating that a prison rule preventing
Muslims from attending a congregational service was "reasonably related tc
legitimate penological interests" 69 - an interest that is relatively easier tc
prove than the "compelling state interest" Sherbert and Yoder imposed on the
government. The SCOTUS also noted that the mandatory exemption
model did not apply to internal government actions, such as administering
Social Security 70 and creating roads in government land,7' even if thesc
actions pierced into the very core of Native American beliefs.7 2 When
Sherbert and Yoder did seem to apply, the Court still ruled against a
73. See, e.g. Bob Jones University v. United States, 461 U.S- 574, 578 (1983).
74. Lupu, supra note 9, at 71.
75. Id.
76. LuPu & TUTTLE, supra note 6, at 195.
77. Lupu, supra note 9, at 51.
78. LuPu & TUTTLE, supra note 6, at 195.
79. Smith, 494 U.S. at 874.
8o. Id. at 874.
8r. Id.
82. Id. at 879 (citing United States v. Lee, 455 U.S. 252, 263 (1982) (J. Stevens,
concurring opinion) & Minersville School District v. Board of Education, 310
U.S. 586, 594-95 (1940)).
83. Smith, 494 U.S. at 879 (citing Reynolds, 98 U.S. at 167; Lee, 455 U.S. at 263;
&
Minersville School District, 310 U.S. at 595).
84. LuPu & TUTTLE, supra note 6, at 195.
85. Id.
86. Id. at 196.
87. Id. at 198.
88. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-i (b) (I) (1993).
89. See Baptist Joint Committee for Religious Liberty, The Religious Freedorr
Restoration Act: 20 Years of Protecting Our First Freedom, available a
http://bjconline.org/rfra-symposium (last accessed Oct. 31, 2017).
90. Id.
91. Lupu, supra note 9, at 72 (citing Gonzales v. 0 Centro Espirita Beneficente
Unilo do Vegetal, 546 U.S. 418, 435-36 (2oo6)). On a related note, as ii
currently stands, the United States has two models for resolving religiou
exemption claims: first, the Smith test, which applies to state law in the absence
of stricter tests imposed either by state constitutions or state-legislated Religiou
Freedom Restoration Act (RFRA), and second, the compelling governmenta
interest under RFRA, which applies to federal law that affects religiou
conduct. See Lupu, supra note 9, at 72.
i. Institutional Incompetency
97. See Smith, 494 U.S. at 887. "[C]ourts must not presume to determine the place
of a particular belief in religion or the plausibility of a religious claim." Smith,
494 U.S. at 887.
98. LuPu & TUTTLE, supra note 6, at 197.
99. Id.
trend seen in recent RFRA cases. 0 0 Justices, well aware of the problem oi
evaluating religious beliefs, have shown reluctance in questioning claims.'ol
The practical result is two-fold. First, this judicial reluctance and deferencc
have lowered the bar claimants have to hurdle. 0 2 Second, claims have to bc
decided on the "back end" of RFRA, with the government having the
burden to show compelling state interest and the least restrictive means tc
achieve it, 103 an inquiry that leads to the third problem of inconsistency.
iro.jonathan Franklin, 'He was sent from above', GUARDIAN, Nov. II, 2008, availabl
at http://www.theguardian.com/football/2008/nov/12/diego-maradona-
argentina (last accessed Oct. 31, 2017). La Iglesia Maradonianais a congregatior
that worships the Argentine football player Diego Maradona as a god. Id.
I'5.Id. at 311-12.
I16. Id.
117. Id.
iI8.Id. at 313.
120. Id. (citing United States v. O'Brien, 391 U.S. 367, 376-86 (1968)).
121.Lupu, supra note 9, at 73.
122. See Temple of the Jedi Order, Doctrine of the Order, available a
https://www.templeofthejediorder.org/doctrine-of-the-order (last accessec
Oct. 31, 2017). Jediism is the belief that The Force - the idea of whick
originated from the space opera "Star Wars" - is the fundamental nature of the
Universe. Id.
123. Lupu, supra note 9, at 72.
12 4 . Id. at 71.
125. Id.
126. Lederman, supra note loo, at 427-28.
127. Lupu, supra note 9, at 71-72.
128. Gonzales v. 0 Centro Espirita Beneficente Unilo do Vegetal, 546 U.S. 4 1r
(2oo6).
For the majority of its FEC history, the Philippine Supreme Court decided
claims for religious exemption under tests used to determine the validity of
restrictions on free speech, which focused on balancing danger and security
with an individual's free speech right. One of the earliest free exercise cases
33
was American Bible Society v. City of Manila. The American Bible Society
challenged a Manila ordinance requiring them to pay license fees as a
condition to distribute and sell bibles around the city.134 Ruling for the
American Bible Society, the Philippine Supreme Court noted that freedom
of religion included the right to disseminate religious information; thus, "any
restraints of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent." 35
A similar test, leading to a similar result, was used as late as 1993 in
Ebralinag v. The Division Superintendent of Schools of Cebu.136 Children whc
were members of the Jehovah's Witnesses were expelled for refusing tc
participate in the law-mandated flag ceremony, which included singing the
Philippine National Anthem and reciting the patriotic pledge. '37 The
students claimed the requirement and their subsequent expulsion violated
their religious freedom.13 8 The government argued against the exemption,
even claiming that the "bizarre religious practices of the Jehovah's Witnesses
produce rebellious and anti-social school children and consequently disloyal
and mutant Filipino citizens."39
Even with the dubious government argument that would have children
turned into comic book characters, the case still seemed like an uphill battle
for the objectors because the Philippine Supreme Court ruled against an
exemption in a 1959 case with the exact same facts.14 0 However, the Court
ruled for the Jehovah's Witnesses, mutation concerns notwithstanding. 141
The Court found that the children's external acts of standing silent during
the ceremony did not justify their expulsion.14 2 The only allowable statc
justification in restricting their religious freedom would be the "existence ol
a grave and present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health[,] or any othei
legitimate public interest, that the State has a right (and duty) to prevent."4
(1959). In this case, the Philippine Supreme Court found that there wa
"absolutely nothing[ ] objectionable, even from the point of view of religiou
belief' to make a child "say that he or she loves the Philippines[.]" Gerona, e
al., ro6 Phil. at 12.
141.Ebralinag,219 SCRA at 273-74.
142. Id.
1 4 3.Id. at 271 (citing German v. Barangan, 135 SCRA 514, 534 (1985) (J
Teehankee, dissenting opinion)).
Escritor is to the Philippine experience what Sherbert and Yoder were to the
American exemption regime. It ushered in the era of benevolent neutrality
to the Philippines with a test that closely mirrors that in Sherbert and Yoder.
The case revolved around Soledad S. Escritor, a court interpreter
administratively charged of and suspended for gross and immoral conduct.14 6
The charge averred that Escritor was living with a man who was not her
husband, and therefore was "committing an immoral act that [tarnished] the
image of the court."47
Escritor admitted that she started living with the man while her husband
was still alive but living with another woman.14'8 In her defense, she claimed
that her living arrangement was in conformity with the tenets of her
congregation, the Jehovah's Witnesses and the Watch Tower and Bible
Tract Society.1 49 As proof, she offered a document entitled Declaration of
Pledging Faithfulness (Declaration). 5 0 Under the beliefs of the Jehovah's
146. Escritor, 408 SCRA at 50-5 1. Immorality was a ground for discipline under the
Revised Administrative Code of the Philippines. Instituting the "Administrative
Code of 1987" [ADMIN. CODE], Executive Order No. 292, 5 46 (b) (5) (1987).
147. Escritor, 408 SCRA at 50.
1 4 8.Id. at 51-52.
1 4 9. Id. at 55-57.
150.Id. at 51-52. The Declaration of Pledging Faithfulness (Declaration), executed
1o years into their relationship, went as follows
-
The Philippine Supreme Court framed the issue as a claim for religious
exemption from a generally applicable law.154 After a lengthy discussion and
comparison of Philippine and American jurisprudence on the religion
clauses,' 5 5 the Philippine Supreme Court remanded the case for rehearing,
ordering the application of a step-by-step framework that forms the current
Philippine test for exemption claims.15 6
(3) "[H]as the [S]tate ... used the least intrusive means possible so
that free exercise is not infringed any more than necessary[?]" 59
Escritor was the fork in the road where Philippine jurisprudence severec
any notion of separationist inclinations in favor for the path of benevolent
neutrality. It is the express and explicit acknowledgment that the Philippinc
Constitution mandated religious exemptions. By adopting the approach oi
benevolent neutrality, the Philippine Supreme Court therefore mandated
lower courts to look beyond the secular purposes of state acts and examinc
the effect these government actions had religious exercise. 6 3 The approach
was to protect "religious realities, tradition[,] and established [religious]
practice" 164 in reading the religion clauses.65 Benevolent neutrality becamc
the constitutionally-mandated backdrop for the religion clauses to bc
viewed, interpreted, and applied. 66
163. See Escritor, 408 SCRA at 167-68 (citing McConnell, supra note 162, at 169).
164.Escritor, 408 SCRA at 113 (citing OTIS H. STEPHENS, JR. &JOHN M. SCHEB II.
AMERICAN CONSTITUTIONAL LAW 541 (2d ed. 1999)).
165. Id.
166. Escritor, 408 SCRA at 167-68.
167. Id. The Philippine Supreme Court likewise reviewed the deliberations in the
Constitutional Conventions for the 1935, 1973, and 1987 Constitutions. Id. at
159-61.
168. See Escritor, 408 SCRA at 240 (J. Carpio, dissenting opinion).
169. PHIL. CONST. pmbl. The Preamble of the Philippine Constitution provides
-
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony, and secure to
ourselves and our posterity, the blessings of independence and
democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
PHIL. CONST. pmbl.
170. PHIL. CONST. art. VI, § 29. Article VI, Section 29 (2) of the Philippine
Constitution provides that
[n]o public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion,
or of any priest, preacher, minister, other religious teacher, or dignitary
as such, except when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium.
PHIL. CONST. art. VI, § 29 (2).
171.PHIL. CONST. art. VI, § 28 (3). The provision states that "[c]haritable
institutions, churches and parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and improvements, actually,
directly, and exclusively used for religious, charitable, or educational purposes
shall be exempt from taxation." PHIL. CONST. art. VI, § 28 (3).
178. Escritor, 408 SCRA at 166 (citing ISAGANI A. CRUZ, CONSTITUTIONAL LA1%
167 (1995)).
179. Escritor, 408 SCRA at 167.
Benevolent neutrality was put to its biggest test in Imbong v. Ochoa, Jr.' 9
At issue in Imbong was the Philippine Responsible Parenthood and
Reproductive Health Act of 2012 (RH Law), a comprehensive law tha
sought to bring reproductive health programs and contraceptives to the
public.1 9 4 Knowing that such a law would be controversial to a country
steeped in Catholic tradition, the Philippine Congress provided a slew ol
exceptions for religious objectors.1 95 Hence, hospitals owned by religious
groups, physicians, and health care providers did not have to provide family
planning methods or reproductive health care services if these offended thein
religious beliefs. 196 However, these groups could only opt out if they
referred their patients to other health facilities; if they refused to refer, they
would be subject to fines or imprisonment.1 97
This "duty to refer" became the subject of controversy, with various
groups claiming that the mere act of referral made them complicit in the
very thing they objected to.198 In its defense, the government argued that
said duty was an adequate compromise between the religious freedom of
objectors and the right to health of would-be patients.1 99 The Court ruled
for the conscientious objectors, not only granting them an exemption, but
invalidating the "duty to refer" altogether. 2 0 0 In reaching its conclusion, the
Court used the benevolent neutrality framework of Escritor.2 0 1
First, it found that the "duty to refer" burdened the religious beliefs of
the objectors.202 The Court agreed with the complicity argument and
characterized the opt-out clause as a "false compromise."203 The objectors
could not be forced to do "indirectly what they cannot do directly." 2 0 4 This
indirect participation would make them guilty by abetting the offensive
act 2 0 5 - a rather questionable use of language from the Philippine's Revised
Penal Code.20 6
Second, the Court did not find any state interest compelling enough to
justify the intrusion on the free exercise rights of the objectors. 2 0 7 Only "an
immediate and grave danger to the security and welfare of the
community"208 would have risen to the level acceptable to the Court .20
Such danger was inexistent to mothers or couples visiting doctors and asking
for reproductive health advice. 2 10 This inexistent danger was outweighed by
the burden placed on the objector. 2
"
To its credit, the Court did recognize a compelling state interest i]
protecting mothers in emergency situations. 2 12 In life-threatening situations,
the medical practitioner must provide reproductive health procedures to savc
the life of a mother, despite any burden on his or her religion. 2 ' 3
Third, the Court said that even assuming there was a compelling statc
interest, the government failed to show that the RH Law was the leasi
intrusive means to achieve its objective. 2 14 In fact, the Court seemed tc
impose a higher standard on the government, saying that it should havc
208.Id. at 341.
209. Id.
,
48% drop in Filipino mortality rate from 1990 to 2oo8. Id. at 345 (citing Stever
Ertelt, Philippines Sees Maternal Mortality Decline Without Abortion, availabb
at http://www.lifenews.com/20i/o9/oi/philippines-sees-maternal-mortality-
decline-without-abortion (last accessed Oct. 31, 2017)).
For the Court, this was enough to show that there was no compelling state
interest, even saying that "[d]espite such revelation, the [government] stil
insist[s] that such number of maternal deaths constitute a compelling state
interest." Id. at 345.
The Author found this line of reasoning both suspect and disturbing. The
Philippine Supreme Court would protect the religious freedom of one yet nol
consider saving the life of 15 mothers per day a compelling State interest. Thi
reasoning is unpacked further in the following Chapter.
212. Id. at 345-46.
213.Id. at 346.
214. Id. at 342.
showed that "no other means" could have been employed without violating
the religious freedom of objectors. 2 1S In any case, the Court pointed to other
existing laws that protected the right to health of women.21 6
aside and took the objectors' claims of burden on face value,220 similar to the
way current RFRA cases are being litigated. 2 2 ' Whether courts are required
to determine the substantiality of a burden or the existence of a burden, the
result will be the same - its incompetence to do so forces it to take the
objectors' word for it.2 2 2
226. Imbong, 721 SCRA at 6ol-04 (J. del Castillo, concurring and dissenting
opinion).
227. Id. at 6oi (emphasis omitted).
228. Id.
229. Id.
230. Ballard, 322 U.S. at 86.
231. See Marshall, supra note 7, at 316-17 & 319.
232.Aglipay v. Ruiz, 64 Phil. 201, 206 (1937).
233. See Imbong, 721 SCRA at 324.
234. Philippine National Statistics Office, Philippine in Figures 2014 at 27, availableat
https://psa.gov.ph/sites/default/files/204%2oPIF-o.pdf (last accessed Oct. 31,
2017). The rest of the country's 92 million people are identified as Muslims
diverse country like the U.S.,235 the lack of diversity in the Philippines
makes the problem of alienation and acceptance more acute, especially giver
its deeply rooted Catholic and theistic tradition.
One would argue that this issue is addressed by the principle of start
decisis.238 However, the test espoused in Escritor, specifically the first inquiry,
(5-5%), Evangelicals (2.6%), Iglesia ni Cristo (2.4%), Protestants (o.9%), and othei
religious affiliations.
235. See United States Census Bureau, Section i. Population, available a
https://www. census. gov/library/publications/20 iI /compendia/statab/ 13 ied/p
opulation.html (last accessed Oct. 31, 2017). As of 2008, there are Catholic
(25%), Baptists (15.8%),Jewish (r.i%), and Islam (o.6%).
236. Marshall, supra note 7, at 3 16.
237. In this event, it can be argued that the second problem (reinforcing majoritariar
beliefs) will, in turn, be mitigated.
238. See Ty v. Banco Filipino Savings and Mortgage Bank, 675 SCRA 339, 345
(2012).
Under the doctrine [of stare decisis], when this Court has once laid
down a principle of law as applicable to a certain state of facts, it will
adhere to that principle, and apply it to all future cases, where facts are
who object both to contraception and the "duty to refer."24 6 What is left is a
weaker law that allows those who have no qualms and issues with the "duty
to refer" to not comply with it at all.
it once considered the right to health (and the right to healthful ecology) an
interest compelling enough that affects even "generations yet unborn." 2 54 It
seems the Court drew an extremely thin line between the unborn and
"generations yet unborn," if there was indeed a line to be possibly drawn in
the first place.
The Imbong majority also seems to say that the right to health of the
unborn and the pregnant mothers is not a compelling governmental interest,
given that maternal deaths have decreased in the past two decades.255 Its
reasoning and subsequent conclusion has disturbing implications. The health
of the unborn, the Court seems to say, must bow down to the dictates of
conscience of another. Justice Estela M. Perlas-Bernabe voices the same
concern in her dissent in Imbong. She rightfully concludes that the "State has
a compelling interest to protect its citizen's right to health and life. The
denial (or the threat of denial) of these rights even only against one ... is
enough to conclude that the second parameter of scrutiny has been
help and the physician who objects. For the majority, there is "no immediate
danger to the life or health" of the person seeking medical help. Imbong, 721
SCRA at 342 (emphasis omitted). "After all," the Philippine Supreme Court
says,
a couple who plans the timing, number[,] and spacing of the birth of
their children refers to a future event that is contingent on whether or
not the mother decides to adopt or use the information, product,
method[,] or supply given to her or whether she even decides to
become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the
moment a patient seeks consultation on reproductive health matters.
Id.
254. See Oposa, 224 SCRA at 802-03.
255. See Imbong, 721 SCRA at 345.
passed." 256 The majority, however, saw otherwise; they even seemed
shocked that the government insisted on curbing maternal deaths as a
compelling state interest.2 57 After all, the majority seems to posit, maternal
deaths did decrease by 48%.258 But to echo the sentiments of Justice Perlas-
Bernabe, is the life of one not compelling enough?
258.Id. at 345.
259. Id. at 345-46.
-
a lynchpin of a mandatory exemption regime. The chance of misapplication
is likely, as was the case in Imbong. A facial invalidation leads to the religious
beliefs of a group being placed in a higher pedestal than the religious beliefs
of others. Assuming that the regime is used in an as-applied basis (as required
by the very nature of its inquiry), the government is put at a considerable
disadvantage, at least on paper, in having to prove a compelling state interest.
And even if it does have a previously recognized compelling state interest,
that same interest could be considered lacking against the religious interests
of a few objectors.
Re: Office Hours and Imbong show the fourth problem of the broad range
of laws susceptible to exemption claims. The former dealt with the
Administrative Code of the Philippines 2 63 while the latter involved a law
focused on reproductive health.2 64 These two laws did not, in any way, even
mention religion, save for the accommodation given to religious objectors in
the RH Law. The Author likewise reads Re: Office Hours as the judicial
pullback Professor Lupu sees as the effect of the problem.2 65 Re: Offie Hours
did not even apply, much less mention, the benevolent neutrality that was
mandated by the Philippine Supreme Court just two years before. As a
matter of policy, the decision was unsurprising, considering how allowing
the request for less working hours would have crippled the workforce in the
courts. But good policy or not, the Court should have at least applied the
Escritor test as a matter of law. To have done so would have arguably brought
about the same end, as the Court has previously recognized the importance
of keeping the government machinery available for the public.2 66 Re: Office
Hours is, in both reasoning and result, similar to U.S. cases that held that free
exercise does not allow an individual to dictate on the internal affairs of the
government. 267 As the SCOTUS delineated areas where the exemption
regime would not apply, 2 68 Re: Office Hours shows that the Philippine
266. See Manila Public School Teachers Asso. v. Laguio, Jr., 200 SCRA 323, 344
(19i) (J. Feliciano, dissenting opinion).
Supreme Court, already in the early years of its own exemption regime, ha,
done the same.
V. CONCLUSION