A.M. No.

P-02-1651
https://www.lawphil.net/judjuris/juri2006/jun2006/am_p-02-1651_2006.html

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 EN BANC

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

(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,

vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite.

Respondent Soledad Escritor once again stands before the Court
invoking her religious freedom and her Jehovah God in a bid to save
her family – united without the benefit of legal marriage - and
livelihood. The State, on the other hand, seeks to wield its power to
regulate her behavior and protect its interest in 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 decide not
only the fate of respondent Escritor but of other believers coming to
Court bearing grievances on their free exercise of religion. This case
comes to us from our remand to the Office of the Court Administrator
on August 4, 2003.1

I. THE PAST PROCEEDINGS

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 a man not her husband, and having borne a
child within this live-in arrangement. Estrada believes that Escritor is
committing an immoral act that tarnishes the image of the court,
thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.2 Consequently,
respondent was charged with committing "disgraceful and immoral
conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3

Respondent Escritor testified that when she entered the judiciary in

1999, she was already a widow, her husband having died in 1998.4
She admitted that she started living with Luciano 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
admitted that she and Quilapio have a son.5 But as a member of the
religious sect known as the Jehovah’s Witnesses and the Watch Tower
and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the
approval of her congregation.6 In fact, after ten years of living
together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."7

For Jehovah’s Witnesses, the Declaration allows members of the

congregation who have been abandoned by their spouses to enter into
marital relations. The Declaration thus makes the resulting union
moral and binding within the congregation all over the world except
in countries where divorce is allowed. As laid out by the tenets of
their faith, the Jehovah’s congregation requires that at the time the
declarations are executed, the couple cannot secure the civil
authorities’ approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good
standing may execute the Declaration, which requires the approval of
the elders of the congregation. As a matter of practice, the marital
status of the declarants and their respective spouses’ commission of
adultery are investigated before the declarations are executed.8
Escritor and Quilapio’s declarations were executed in the usual and
approved form prescribed by the Jehovah’s Witnesses,9 approved by
elders of the congregation where the declarations were executed,10
and recorded in the Watch Tower Central Office.11

Moreover, the Jehovah’s congregation believes that once all legal

impediments for the couple are lifted, the validity of the declarations
ceases, and the couple should legalize their union. In Escritor’s case,
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, their declarations remained valid.12 In sum,
therefore, insofar as the congregation is concerned, there is nothing
immoral about the conjugal arrangement between Escritor and
Quilapio and they remain members in good standing in the
congregation.

By invoking the religious beliefs, practices and moral standards of her

congregation, in asserting that her conjugal arrangement does not
constitute disgraceful and immoral conduct for which she should be
held administratively liable,13 the Court had to determine the
contours of religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion,

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

A. Ruling

In our decision dated August 4, 2003, after a long and arduous

scrutiny into the origins and development of the religion clauses in
the United States (U.S.) and the Philippines, we held that in resolving
claims involving religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondent’s plea of exemption based
on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the
strictest test, which must be applied.14

Notwithstanding the above rulings, the Court could not, at that time,
rule definitively on the ultimate issue of whether respondent was to
be held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling
interest" to defeat the claim of the respondent to religious freedom.
Thus, in the decision dated August 4, 2003, we remanded the
complaint to the Office of the Court Administrator (OCA), and ordered
the Office of the Solicitor General (OSG) to intervene in the case so it
can:

(a) examine the sincerity and centrality of respondent’s claimed

religious belief and practice;

(b) present evidence on the state’s "compelling interest" to

override respondent’s religious belief and practice; and

(c) show that the means the state adopts in pursuing its interest
is the least restrictive to respondent’s religious freedom. 15

It bears stressing, therefore, that the residual issues of the case

pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled upon
prior to the remand, and constitute "the law of the case" insofar as
they resolved the issues of which framework 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.

B. Law of the case

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 complainant, respondent nor the government has filed a
motion for reconsideration assailing this ruling, the same has
attained finality and constitutes the law of the case. Any attempt to
reopen this final ruling constitutes a crass contravention of
elementary rules of procedure. Worse, insofar as it would overturn
the parties’ right to rely upon our interpretation which has long
attained finality, it also runs counter to substantive due process.

Be that as it may, even assuming that there were no procedural and

substantive infirmities in Mr. Justice Carpio’s belated attempts to
disturb settled issues, and that he had timely presented his
arguments, the results would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old

World antecedents of the religion clauses, because "one cannot
understand, much less intelligently criticize the approaches of the
courts and the political branches to religious freedom in the recent
past in the United States without a deep appreciation of the roots of
these controversies in the ancient and medieval world and in the
American experience."17 We delved into the conception of religion
from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to
God.18 Then, religion developed on its own and became superior to
the state,19 its subordinate,20 and even becoming an engine of state
policy.21

We ascertained two salient features in the review of religious history:

First, with minor exceptions, the history of church-state relationships
was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace.
Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane
benefits conferred by ambitious princes and emperors in exchange for
religion’s invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy
and in human history. 22

Strictly speaking, the American experiment of freedom and

separation 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 Madison said, the national
government had no "jurisdiction" over religion or any "shadow of
right to intermeddle" with it. 23

The omission of an express guaranty of religious freedom and other

natural rights, however, nearly prevented the ratification of the
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 national government; its intent was to make
express the absence of power.24 It commands, in two parts (with the
first part usually referred to as the Establishment Clause and the
second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof. 25

The Establishment and Free Exercise Clauses, it should be noted, were

not designed to serve contradictory purposes. They have a single goal
—to promote freedom of individual religious beliefs and practices. In
simplest terms, the Free Exercise Clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and
practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices.26

In sum, a review of the Old World antecedents of religion shows the

movement of establishment of religion as an engine to promote state
interests, to the principle of non-establishment to allow the free
exercise of religion.

2. Religion Clauses in the U.S. Context

The Court then turned to the religion clauses’ interpretation and

construction in the United States, not because we are bound by their
interpretation, but because the U.S. religion clauses are the
precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be
discussed later on.

At the outset, it is worth noting that American jurisprudence in this

area has been volatile and fraught with inconsistencies whether
within a Court decision or across decisions. For while there is
widespread agreement regarding the value of the First Amendment
religion clauses, there is an equally broad disagreement as to what
these clauses specifically require, permit and forbid. No agreement
has been reached by those who 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,
strains of jurisprudence on the religion clauses. First is the standard
of separation, which may take the form of either (a) strict separation
or (b) the tamer version of strict neutrality or separation, or what Mr.
Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the
former, both are anchored on the Jeffersonian premise that a "wall of
separation" must exist between the state and the Church to protect
the state from the church.28 Both protect the principle of church-state
separation with a rigid reading of the principle. On the other hand,
the second standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of 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

meant to protect the state from the church, and the state’s hostility
towards religion allows no interaction between the two. According to
this Jeffersonian view, an absolute barrier to formal interdependence
of religion and state needs to be erected. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could
the state adjust its secular programs to alleviate burdens the
programs placed on believers.29 Only the complete separation of
religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political
views, thus a strict "wall of separation" is necessary. 30

Strict separation faces difficulties, however, as it is deeply embedded

in American history and contemporary practice that enormous
amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from
religion.31 For example, less than twenty-four hours after Congress
adopted the First Amendment’s prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to
God Almighty for the many blessings enjoyed by the nation with a
resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.32 Thus, strict
separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to.33

The tamer version of the strict separationist view, the strict neutrality
or separationist view, (or, the governmental neutrality theory) finds
basis in Everson v. Board of Education,34 where the Court declared
that Jefferson’s "wall of separation" encapsulated the meaning of the
First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require
the state to be their adversary. Rather, the state must be neutral in its
relations with groups of religious believers and non-believers. "State
power is no more to be used so as to handicap religions than it is to
favor them."35 The strict neutrality approach is not hostile to religion,
but it is strict in holding that religion may not be used as a basis for
classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations.
Only secular criteria may be the basis of government action. It does
not permit, much less require, accommodation of secular programs
to religious belief.36

The problem with the strict neutrality approach, however, is if

applied in interpreting the Establishment Clause, it could lead to a de
facto voiding of religious expression in the Free Exercise Clause. As
pointed out by Justice Goldberg in his concurring opinion in Abington
School District v. Schempp,37 strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or even
active, hostility to the religious" which is prohibited by the
Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with

the very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing
the free exercise of religion but not, say, of philosophy or science. The
strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious classifications.39

Thus, the dilemma of the separationist approach, whether in the form

of strict separation or strict neutrality, is that while the Jeffersonian
wall of separation "captures the spirit of the American ideal of
church-state separation," in real life, church and state are not and
cannot be totally 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

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on

a different view of the "wall of separation," associated with Williams,
founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to
protect the church from the state.41 This doctrine was expressed in
Zorach v. Clauson,42 which held, viz:

The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly.
Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners
into their places of worship would violate the Constitution. Prayers in
our legislative halls; the appeals to the Almighty in the messages of
the Chief Executive; the proclamations making Thanksgiving Day a
holiday; "so help me God" in our courtroom oaths- these and all other
references to the Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the First Amendment. A
fastidious atheist or agnostic could even object to the supplication
with which the Court opens each session: "God save the United States
and this Honorable Court."

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme

Being. We guarantee the freedom to worship as one chooses. . . When
the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it
follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their
effective scope of religious influence. 43

Benevolent neutrality recognizes that religion plays an important role

in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We
Trust" on American currency; the recognition of America as "one
nation under God" in the official pledge of allegiance to the flag; the
Supreme Court’s time-honored practice of opening oral argument
with the invocation "God save the United States and this Honorable
Court"; and the practice of Congress 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 theological
viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of
poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral
dimension. 44
Examples of accommodations in American jurisprudence also
abound, including, but not limited to the U.S. Court declaring the
following acts as constitutional: a state hiring a Presbyterian
minister to lead the legislature in daily prayers,45 or requiring
employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;46 for
government to give money to religiously-affiliated organizations to
teach adolescents about proper sexual behavior;47 or to provide
religious school pupils with books;48 or bus rides to religious
schools;49 or with cash to pay for state-mandated standardized
tests.50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied
in the Religion clauses are invoked in relation to governmental
action, almost invariably in the form of legislative acts.

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 neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which
have a secular purpose and general applicability, but may incidentally
or inadvertently aid or burden religious exercise. Though the
government action is not religiously motivated, these laws have a
"burdensome effect" on religious exercise.

The benevolent neutrality theory believes that with respect to these

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 of accommodations is to remove a burden on,
or facilitate the exercise of, a person’s or institution’s religion. As
Justice Brennan explained, the "government [may] take religion into
account…to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious
exercise may flourish."51 In the ideal world, the legislature would
recognize the religions and their practices and would consider them,
when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened
may turn to the courts for protection.52

Thus, what is sought under the theory of accommodation is not a

declaration of unconstitutionality of a facially neutral law, but an
exemption from its application or its "burdensome effect," whether by
the legislature or the courts.53 Most of the free exercise claims
brought to the U.S. Court are for exemption, not invalidation of the
facially neutral law that has a "burdensome" effect.54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of

accommodation in the U.S. blossomed in the case of Sherbert v.
Verner,55 which ruled that state regulation that indirectly restrains
or punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.56 According to Sherbert,
when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so
paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed

unemployment compensation under the law as her employment was
terminated for refusal to work on Saturdays on religious grounds.
Her claim was denied. She sought recourse in the Supreme Court. In
laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work

constitutes no conduct prompted by religious principles of a kind
within the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional right of free exercise, or because any
incidental burden on the free exercise of appellant’s religion may be
justified by a "compelling state interest in the regulation of a subject
within the State’s constitutional power to regulate. . . ."57 (emphasis
supplied)

The Court stressed that in the area of religious liberty, it is basic that
it is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the
gravest abuses, endangering paramount interests, give occasion for
permissible limitation.’"58 The Court found that there was no such
compelling state interest to override Sherbert’s religious liberty. It
added that even if the state could show that Sherbert’s exemption
would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon
the state to show that no alternative means of regulations would
address such detrimental effects without infringing religious liberty.
The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial
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 Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine, 59 viz:

It is certain that not every conscience can be accommodated by all the

laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some "compelling
state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government
action burdens, even inadvertently, a sincerely held religious belief or
practice, the state must justify the burden by demonstrating that the
law embodies a compelling interest, that no less restrictive
alternative exists, and that a religious exemption would impair the
state’s ability to effectuate its compelling interest. As in other
instances of state action affecting fundamental rights, negative
impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-
mandated religious exemptions from facially-neutral laws of general
application whenever unjustified burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again
ruled that religious exemption was in order, notwithstanding that the
law of general application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of Amish parents for
violating Wisconsin compulsory school-attendance laws. The Court,
in effect, granted exemption from a neutral, criminal statute that
punished religiously motivated conduct. Chief Justice Burger, writing
for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance

beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the
establishment of any religion. The values underlying these two
provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high
social importance. . .
The essence of all that has been said and written on the subject is that
only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of
religion. . .

. . . our decisions have rejected the idea that religiously grounded

conduct is always outside the protection of the Free Exercise Clause.
It is true that activities of individuals, even when religiously based,
are often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare,
or the Federal 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 conduct protected by the Free Exercise Clause of the First
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;
in this context belief and action cannot be neatly confined in logic-
tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a)
free exercise clause claims were subject to heightened scrutiny or
compelling interest test if government substantially burdened the
exercise of religion; (b) heightened scrutiny or compelling interest test
governed cases where the burden was direct, i.e., the exercise of
religion triggered a criminal or civil penalty, as well as cases where
the burden was indirect, i.e., the exercise of religion resulted in the
forfeiture of a government benefit;63 and (c) the Court could carve out
accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action

was protected—conduct beyond speech, press, or worship was
included in the shelter of freedom of religion. Neither Sherbert’s
refusal to work on the Sabbath nor the Amish parents’ refusal to let
their children attend ninth and tenth grades can be classified as
conduct protected by the other clauses of the First Amendment.
Second, indirect impositions on religious conduct, such as the denial
of twenty-six weeks of unemployment insurance benefits to Adel
Sherbert, as well as direct restraints, such as the criminal prohibition
at issue in Yoder, were prohibited. Third, as the language in the two
cases indicate, the protection granted was extensive. Only extremely
strong governmental interests justified impingement on religious
conduct, as the absolute language of the test of the Free Exercise
Clause suggests. 64

Fourth, the strong language was backed by a requirement that the

government provide proof of the important interest at stake and of
the dangers to that interest presented by the religious conduct at
issue. Fifth, in determining the injury to the government’s interest, a
court was required to focus on the effect that exempting religious
claimants from the regulation would have, rather than on the value
of the regulation in general. Thus, injury to governmental interest
had to be measured at the margin: assuming the law still applied to
all others, what would be the effect of exempting the religious
claimant in this case and other similarly situated religious claimants
in the future? Together, the fourth and fifth elements required that
facts, rather than speculation, had to be presented concerning how
the government’s interest would be harmed by excepting religious
conduct from the law being challenged. 65

Sherbert and Yoder adopted a balancing test for free exercise

jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests. The fourth and the fifth
elements prevented the 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 the other side of the
balance. 66

Thus, the strict scrutiny and compelling state interest test

significantly increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to
religious activity, a compelling secular justification was necessary to
uphold public policies that collided with religious practices. Although
the members of the U.S. Court often disagreed over which
governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of
the free exercise of religion.67 Most scholars and courts agreed that
under Sherbert and Yoder, the Free Exercise Clause provided
individuals some form of heightened scrutiny protection, if not always
a compelling interest one.68 The 1990 case of Employment Division,
Oregon Department of Human Resources v. Smith,69 drastically
changed all that.

Smith involved a challenge by Native Americans to an Oregon law

prohibiting use of peyote, a hallucinogenic substance. Specifically,
individuals challenged the state’s determination that their religious
use of peyote, which resulted in their dismissal from employment,
was misconduct disqualifying them from receipt of unemployment
compensation benefits. 70

Justice Scalia, writing for the majority, rejected the claim that free
exercise of religion required an exemption from an otherwise valid
law. Scalia said that "[w]e have never held that an individual’s
religious beliefs excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate. On the
contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition." 71 Scalia thus declared
"that the right of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general
applicability of the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).’" 72

Justice Scalia’s opinion then reviewed the cases where free exercise
challenges had been upheld—such as Cantwell, Murdock, Follet,
Pierce, and Yoder—and said that none involved the free exercise
clause claims alone. All involved "the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of
speech and of the press, or the right of parents to direct the education
of their children." 73 The Court said that Smith was distinguishable
because it did not involve such a "hybrid situation," but was a free
exercise claim "unconnected with any communicative activity or
parental right." 74

Moreover, the Court said that the Sherbert line of cases applied only
in the context of the denial of unemployment benefits; it did not create
a basis for an exemption from criminal laws. Scalia wrote that "
[e]ven if we were 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 neutral laws of general applicability that burden religion. Justice
Scalia said that "[p]recisely because ‘we are a cosmopolitan nation
made up of people of almost conceivable religious preference,’ and
precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied
to the religious objector, every regulation of conduct that does not
protect an interest of the highest order." The Court said that those
seeking religious exemptions from laws should look to the democratic
process for protection, not the courts. 76

Smith thus changed the test for the free exercise clause. Strict or
heightened scrutiny and the compelling justification approach were
abandoned for evaluating laws burdening religion; neutral laws of
general applicability only have to meet the rational basis test, no
matter how much they burden religion. 77

Justice O’Connor wrote a concurring opinion sharply criticizing the

rejection of the compelling state interest test, asserting that "(t)he
compelling state interest test effectuates the First Amendment’s
command that religious liberty is an independent liberty, that it
occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest ‘of the highest
order.’"78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First
Amendment’s mandate of preserving religious liberty to the fullest
extent possible in a pluralistic society." 79

Justice O’Connor also disagreed with the majority’s description of

prior cases and especially its leaving the protection of minority
religions to the political process. She said that, "First Amendment
was enacted precisely to protect the rights of those whose religious
practice are not shared by the majority and may be viewed with
hostility." 80

Justice Blackmun wrote a dissenting opinion that was joined by

Justices Brennan and Marshall. The dissenting Justices agreed with
Justice O’Connor that the majority had mischaracterized precedents,
such as in describing Yoder as a "hybrid" case rather than as one
under the free exercise clause. The dissent also argued that strict
scrutiny should be used in evaluating government laws burdening
religion. 81

Criticism of Smith was intense and widespread.82 Academics, Justices,

and a bipartisan majority of Congress noisily denounced the
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 to minority faiths which, in light of Smith’s general
applicability rule, will allegedly suffer at the hands of the majority
faith whether through outright hostility or neglect. Conservatives
bemoan the decision as an assault on religious belief leaving religion,
more than ever, subject to the caprice of an ever more secular nation
that is increasingly hostile to religious belief as an oppressive and
archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and

has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.86 First, the First amendment was intended to
protect minority religions from the tyranny of the religious and
political majority. 87 Critics of Smith have worried about religious
minorities, who can suffer disproportionately from laws that enact
majoritarian mores.88 Smith, in effect would allow discriminating in
favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,89 contrary to the
original theory of the First Amendment.90 Undeniably, claims for
judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out
their judicial recourse for exemption.91 Second, Smith leaves too
much leeway for pervasive welfare-state regulation to burden religion
while satisfying neutrality. After all, laws not aimed at religion can
hinder observance just as effectively as those that target religion.92
Government impairment of religious liberty would most often be of
the inadvertent kind as in Smith considering the political culture
where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could
not afford protection to inadvertent interference, it would be left
almost meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine
simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions
of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective
without serious inadvertent impact on religion.95

At bottom, the Court’s ultimate concern in Smith appeared to be two-

fold: (1) the difficulty in defining and limiting the term "religion" in
today’s pluralistic society, and (2) the belief that courts have no
business determining the significance of an individual’s religious
beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it
must protect virtually nothing. As a result, the Court perceives its
only viable options are to leave free exercise protection to the
political process or to allow a "system in which each conscience is a
law unto itself." 96 The Court’s characterization of its choices have
been soundly rejected as false, viz:

If one accepts the Court’s assumption that these are the only two
viable options, then admittedly, the Court has a stronger argument.
But the Free Exercise Clause cannot be summarily dismissed as too
difficult to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of simply refusing
to interpret its provisions. The First Amendment dictates that free
exercise of "religion" must be protected. Accordingly, the Constitution
compels the Court to struggle with the contours of what constitutes
"religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists
between the Court’s two opposing alternatives for free exercise
jurisprudence. Unfortunately, this middle ground requires the Court
to tackle difficult issues such as defining religion and possibly
evaluating the significance of a religious belief against the
importance of a specific law. The Court describes the results of this
middle ground where "federal judges will regularly balance against
the importance of general laws the significance of religious practice,"
and then dismisses it as a "parade of horribles" that is too "horrible to
contemplate."

It is not clear whom the Court feels would be most hurt by this
"parade 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 concerned about requiring lawmakers at
times constitutionally to exempt religious individuals from statutory
provisions, its concern is misplaced. It is the lawmakers who have
sought to prevent the Court from dismantling the Free Exercise
Clause through such legislation as the [Religious Freedom
Restoration Act of 1993], and in any case, the Court should not be
overly concerned about hurting legislature’s feelings by requiring
their laws to conform to constitutional dictates. Perhaps the Court is
concerned about putting such burden on judges. If so, it would truly
be odd to say that

requiring the judiciary to perform its appointed role as constitutional

interpreters is a burden no judge should be expected to fulfill.97

Parenthetically, Smith’s characterization that the U.S. Court has

"never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the
state is free to regulate"—an assertion which Mr. Justice Carpio
adopted unequivocally in his dissent—has been sharply criticized
even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments
that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the
Smith decision made shocking use of precedent]—those points were
often conceded. 98

To justify its perversion of precedent, the Smith Court attempted to

distinguish the exemption made in Yoder, by asserting that these were
premised on two constitutional rights combined—the right of parents
to direct the education of their children and the right of free exercise
of religion. Under the Court’s opinion in Smith, the right of free
exercise of religion standing alone would not allow Amish parents to
disregard the 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 obey it. The fatal flaw in this argument,
however, is that if two constitutional claims will fail on its own, how
would it prevail if combined?99 As for Sherbert, the Smith Court
attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-
compelled conduct that leads to job loss is not a violation of criminal
law. And yet, this is precisely why the rejection of Sherbert was so
damaging in its effect: the religious person was more likely to be
entitled to constitutional protection when forced to choose between
religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. 100

Thus, the Smith decision elicited much negative public reaction

especially from the religious community, and commentaries insisted
that the Court was allowing the Free Exercise Clause to disappear.101
So much was the uproar that a majority in Congress was convinced
to enact the Religious Freedom Restoration Act (RFRA) of 1993.102
The RFRA was adopted to negate the Smith test and require strict
scrutiny for free exercise claims. Indeed, the findings section of the
Act notes 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 to guarantee its application in all cases
where free exercise of religion is substantially burdened; and to
provide a claim of defense to a person whose religious exercise is
substantially burdened by government.104 The RFRA thus sought to
overrule Smith and make strict scrutiny the test for all free exercise
clause claims. 105

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared
the RFRA unconstitutional, ruling that Congress had exceeded its
power under the Fourteenth Amendment in enacting the law. The
Court ruled that Congress is empowered to enact laws "to enforce the
amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights. 107

City of Boerne also drew public backlash as the U.S. Supreme Court
was accused of lack of judicial respect for the constitutional decision-
making by a coordinate branch of government. In Smith, Justice
Scalia wrote:

"Values that are protected against governmental interference through

enshrinement in the Bill of Rights are not thereby banished from the
political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws
that affirmatively foster the dissemination of the printed word, so
also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its
legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the

solicitude of a nearly unanimous Congress. Contrary to the Court’s
characterization of the RFRA as a kind of usurpation of the judicial
power to say what the Constitution means, the law offered no
definition of Free Exercise, and on its face appeared to be a
procedural measure establishing a standard of proof and allocating
the duty of meeting it. In effect, the Court ruled that Congress had no
power in the area of religion. And yet, 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 arises from the Fourteenth
Amendment. 108

From the foregoing, it can be seen that Smith, while expressly

recognizing the power of legislature to give accommodations, is in
effect contrary to the benevolent neutrality or accommodation
approach. Moreover, if we consider the history of the incorporation
of the religion 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 need to protect religious
exercise in light of the massive increase in the size of government, the
concerns within its reach, and the number of laws administered by it.
However, Smith abandons the protection of religious exercise at a
time when the scope and reach of government has never been greater.
It has been pointed out that Smith creates the legal framework for
persecution: through general, neutral laws, legislatures are now able
to force conformity on religious minorities whose practice irritate or
frighten an intolerant majority.109

The effect of Smith is to erase entirely the concept of mandatory

accommodations, thereby emasculating the Free Exercise Clause.
Smith left religious freedom for many in the hands of the political
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 prevail in the political process. The Court in Smith
ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because
mainstream religions generally have been successful in protecting
their interests through the political process, it is the non-mainstream
religions that are adversely affected by Smith. In short, the U.S.
Supreme Court has made it clear to such religions that they should
not look to the First Amendment for religious freedom. 110

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation:

(a) those which are found to be constitutionally compelled, i.e.,
required by the Free Exercise Clause; (b) those which are
discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and (c)
those which the religion clauses prohibit.111

Mandatory accommodation results when the Court finds that

accommodation is required by the Free Exercise Clause, i.e, when the
Court itself carves out an exemption. This accommodation occurs
when all three conditions of the compelling interest test are met, i.e, a
statute or government action has burdened claimant’s free exercise of
religion, and there is no doubt as to the sincerity of the religious
belief; the state has failed to demonstrate a particularly important or
compelling governmental goal in preventing an exemption; and that
the state has failed to 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 hostility could explain a
refusal to make exemptions. Thus, if the state’s objective could be
served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, the Court
must grant the exemption. The Yoder case is an example where the
Court held that the state must accommodate the religious beliefs of
the 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

In permissive accommodation, the Court finds that the State may, but
is not required to, accommodate religious interests. The U.S. Walz
case illustrates this situation where the U.S. Supreme Court upheld
the constitutionality of tax exemption given by New York to church
properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause."113 Other
examples are Zorach v. Clauson,114 allowing released time in public
schools and Marsh v. Chambers,115 allowing payment of legislative
chaplains from public funds. Parenthetically, the Court in Smith has
ruled that this is the only accommodation allowed by the Religion
Clauses.

Finally, when the Court finds no basis for a mandatory

accommodation, or it determines that the legislative accommodation
runs afoul of the establishment or the free exercise clause, it results to
a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the
Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.116 An example where accommodation was
prohibited is McCollum v. Board of Education,117 where the Court
ruled against optional religious instruction in the public school
premises.118

Given that a free exercise claim could lead to three different results,
the question now remains as to how the Court should determine
which action to take. In this regard, it is the strict scrutiny-compelling
state interest test which is most in line with the benevolent neutrality-
accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the

First Amendment is that freedom to carry out one’s duties to a
Supreme Being is an inalienable right, not one dependent on the grace
of legislature. Religious freedom is seen as a substantive right and not
merely a privilege against discriminatory legislation. With religion
looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances.

Considering that laws nowadays are rarely enacted specifically to

disable religious belief or practice, free exercise disputes arise
commonly when a law that is religiously neutral and generally
applicable on its face is argued to prevent or burden what someone’s
religious faith requires, or alternatively, requires someone to
undertake an act that faith would preclude. In essence, then, free
exercise arguments contemplate religious exemptions from otherwise
general laws.119

Strict scrutiny is appropriate for free exercise challenges because "

[t]he compelling interest test reflects the First Amendment’s mandate
of preserving religious liberty to the fullest extent possible in a
pluralistic society.120 Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and that laws
burdening it should be subject to strict scrutiny.121

In its application, the compelling state interest test follows a three-

step process, summarized as follows:

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 to
the accomplishment of some important (or ‘compelling’) secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does
not, the plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimant’s beliefs must be ‘sincere’,
but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant’s religious
denomination. ‘Only beliefs rooted in religion are protected by the
Free Exercise Clause’; secular beliefs, however sincere and
conscientious, do not suffice.122

In sum, the U.S. Court has invariably decided claims based on the
religion clauses using either the separationist approach, or the
benevolent neutrality approach. The benevolent neutrality approach
has also further been split by the view that the First Amendment
requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in
Smith, however, is that that there are no required accommodation
under the First Amendment, although it permits of legislative
accommodations.

3. Religion Clauses in the Philippine Context: Constitution,

Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against

that of the Philippines, it is immediately clear that one cannot simply
conclude that we have adopted—lock, stock and barrel—the religion
clauses as embodied in the First Amendment, and therefore, the U.S.
Court’s interpretation of the same. Unlike in the U.S. where legislative
exemptions of religion had to be upheld by the U.S. Supreme Court as
constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own
constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain
provisions on tax exemption of church property,123 salary of religious
officers in government institutions,124 and optional religious
instruction.125 Our own preamble also invokes the aid of a divine
being.126 These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all
reveal without doubt that the Filipino people, in adopting these
constitutions, manifested their adherence to the benevolent neutrality
approach that requires accommodations in interpreting the religion
clauses.127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia
was erroneous insofar as it asserted that the 1935 Constitution
incorporates the Walz ruling as this case was decided subsequent to
the 1935 Constitution is a misreading of the ponencia. What the
ponencia pointed out was that even as early as 1935, or more than
three decades before the U.S. Court could validate the exemption in
Walz as a form or permissible accommodation, we have already
incorporated the same in our Constitution, as a mandatory
accommodation.

There is no ambiguity with regard to the Philippine Constitution’s

departure from the U.S. Constitution, insofar as religious
accommodations are concerned. It is indubitable that benevolent
neutrality-accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the Philippine
Constitution.128 As stated in our Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the
U.S. Constitution xxxx Philippine jurisprudence and commentaries on
the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus,
when a religion clause case comes before the Court, a separationist
approach or a benevolent neutrality approach might be adopted and
each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the
Philippine religion clauses’ history. As a result, in a case where the
party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an
exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by
other provisions on religion in all three constitutions. It is a cardinal
rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should
be reconciled and harmonized in a manner that will give to all of
them full force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent
neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal
of construing the constitution.129 [citations omitted]

We therefore reject Mr. Justice Carpio’s total adherence to the U.S.

Court’s interpretation of the religion clauses to effectively deny
accommodations on the sole basis that the law in question is neutral
and of general application. For even if it were true that "an unbroken
line of U.S. Supreme Court decisions" has never held that "an
individual’s religious beliefs [do not] excuse him from compliance
with an otherwise valid law prohibiting conduct that the State is free
to regulate," our own Constitutions have made significant changes to
accommodate and exempt religion. Philippine jurisprudence shows
that the Court has allowed exemptions from a law of general
application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.130

To illustrate, in American Bible Society v. City of Manila,131 the Court

granted to plaintiff exemption from a law of general application
based on the Free Exercise Clause. In this case, plaintiff was required
by an ordinance to secure a mayor’s permit and a municipal license
as ordinarily required of those engaged in the business of general
merchandise under the city’s ordinances. Plaintiff argued that this
amounted to "religious censorship and restrained the free exercise
and enjoyment of religious profession, to wit: the distribution and
sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the
questioned ordinances were not applicable to plaintiff as it was not
engaged in the business or occupation of selling said "merchandise"
for profit, it also ruled that applying the ordinance to plaintiff and
requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its
right of dissemination of religious beliefs "as the power to tax the
exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of

religious profession and worship carries with it the right to
disseminate religious information. Any restraint 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. (citations omitted,
emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v.

The Division Superintendent of Schools.132 The case involved several
Jehovah’s Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of 1987. In resolving
the religious freedom issue, a unanimous Court overturned an earlier
ruling denying such exemption,133 using the "grave and imminent
danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise

of religious freedom (according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA
514, 517) is the existence of 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 other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public
safety, the expulsion of the petitioners from the schools is not
justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a
law of general application, on the strength directly of the Free
Exercise Clause.

We also have jurisprudence that supports permissive

accommodation. The case of Victoriano v. Elizalde Rope Workers
Union135 is an example of the application of Mr. Justice Carpio’s
theory of permissive accommodation, where religious exemption is
granted by a legislative act. In Victoriano, the constitutionality of
Republic Act No. 3350 was questioned. The said R.A. exempt
employees from the application and coverage of a closed shop
agreement—mandated in another law—based on religious objections.
A unanimous Court upheld the constitutionality of the law, holding
that "government is not precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable
to a religion or sect." Interestingly, the secular purpose of the
challenged law which the Court upheld was the advancement of "the
constitutional right to the free exercise of religion."136

Having established that benevolent neutrality-accommodation is the

framework by which free exercise cases must be decided, the next
question then turned to the test that should be used in ascertaining
the limits of the exercise of religious freedom. In our Decision dated
August 4, 2003, we reviewed our jurisprudence, and ruled that in
cases involving purely conduct based on religious belief, as in the case
at bar, the compelling state interest test, is proper, viz:

Philippine jurisprudence articulates several tests to determine these

limits. Beginning with the first case on the Free Exercise Clause,
American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to
be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden
religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the "clear and
present danger" test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form
or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag
which employed the "grave and immediate danger" test. Victoriano
was the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate to
the facts of the case.

The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger"
and "grave and immediate danger" tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The "compelling state interest"
test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the state’s interests: some
effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of
rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones
until they are destroyed. In determining which shall prevail between
the state’s interest and religious liberty, reasonableness shall be the
guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert
which involved conduct, i.e. refusal to work on Saturdays. In the end,
the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which,
religious liberty will not be preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio’s dissent, which, while
loosely disputing the applicability of the benevolent neutrality
framework and compelling state interest test, states that "[i]t is true
that a test needs to be applied by the Court in determining the validity
of a free exercise claim of exemption as made here by Escritor." This
assertion is inconsistent with the position negating the benevolent
neutrality or accommodation approach. If it were true, indeed, that
the religion clauses do not require accommodations based on the free
exercise of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any and all claims
for religious exemptions from a law of general application would fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between

permissive accommodation and mandatory accommodation is more
critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the
limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive
American jurisprudence (such as the Smith case) just because it does
not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the
strict neutrality approach, but more of permissive accommodation.

Mr. Justice Carpio’s assertion misses the point. Precisely because the
doctrine in Smith is that only legislative accommodations are allowed
under the Free Exercise Clause, it cannot be used in determining a
claim of religion exemption directly anchored on the Free Exercise
Clause. Thus, even assuming that the Smith doctrine actually
espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative
exemptions. It, therefore, cannot be used as a test in determining the
claims of religious exemptions directly under the Free Exercise Clause
because Smith does not recognize such exemption. Moreover, Mr.
Justice Carpio’s advocacy of the Smith doctrine would effectively
render the Free Exercise protection—a fundamental right under our
Constitution—nugatory because he would deny its status as an
independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a

three-step process. We explained this process in detail, by showing
the questions which must be answered in each step, viz:

…First, "[H]as the statute or government action created a burden on

the free exercise of religion?" The courts often look into the sincerity
of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth
as held in Ballard and Cantwell. The sincerity of the claimant’s belief
is ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. xxx

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state
interest to justify this infringement of religious liberty?" In this step,
the government has to establish that its purposes are legitimate for
the state and that they are compelling. Government must do more
than assert the objectives at risk if exemption is given; it must
precisely show how and to what extent those objectives will be
undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?" The analysis requires the state to show
that the means in which it is achieving its legitimate state objective is
the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious
liberties xxx.138 [citations omitted]

Again, the application of the compelling state interest test could

result to three situations of accommodation: First, mandatory
accommodation would result if the Court finds that accommodation
is required by the Free Exercise Clause. Second, if the Court finds that
the State may, but is not required to, accommodate religious interests,
permissive accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation
interests, then it must rule that the accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio’s dissent is that

only permissive accommodation can carve out an exemption from a
law of general application. He posits the view that the law should
prevail in the absence of a legislative exemption, and the Court
cannot make the accommodation or exemption.

Mr. Justice Carpio’s position is clearly not supported by Philippine

jurisprudence. The cases of American Bible Society, Ebralinag, and
Victoriano demonstrate that our application of the doctrine of
benevolent neutrality-accommodation covers not only the grant of
permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general
application is possible, even if anchored directly on an invocation of
the Free Exercise Clause alone, rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as

yet wherein the Court granted an accommodation/exemption to a
religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with
respect to one of the crimes penalized under the Revised Penal Code,
that of bigamy.

In the U.S. case of Reynolds v. United States,139 the U.S. Court

expressly denied to Mormons an exemption from a general federal
law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith.140 In contradistinction,
Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one
still constitutes bigamy under the Revised Penal Code, Article 180 of
P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws
of the Philippines, provides that the penal laws relative to the crime
of bigamy "shall not apply to a person married…under Muslim law."
Thus, by legislative action, accommodation is granted of a Muslim
practice which would otherwise violate a valid and general criminal
law. Mr. Justice Carpio recognized this accommodation when, in his
dissent in our Decision dated August 4, 2003 and citing Sulu Islamic
Association of Masjid Lambayong v. Malik,141 he stated that a
Muslim Judge "is not criminally liable for bigamy because Shari’a law
allows a Muslim to have more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-

accommodation only" advocacy in this jurisdiction becomes manifest.
Having anchored his argument on the Smith doctrine that "the
guaranty of religious liberty as embodied in the Free Exercise Clause
does not require the grant of exemptions from generally applicable
laws to individuals whose religious practice conflict with those laws,"
his theory is infirmed by the showing that the benevolent neutrality
approach which allows for both mandatory and permissive
accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence.

Parenthetically, it should be pointed out that a "permissive

accommodation-only" stance is the antithesis to the notion that
religion clauses, like the other fundamental liberties found in the Bill
or Rights, is a preferred right and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith,
that the test in Sherbert is not applicable when the law in question is
a generally applicable criminal law. Stated differently, even if Mr.
Justice Carpio conceded that there is no question that in the
Philippine context, accommodations are made, the question remains
as to how far the exemptions will be made and who would make these
exemptions.

On this point, two things must be clarified: first, in relation to

criminal statutes, only the question of mandatory accommodation is
uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant
exemptions in general (i.e., finding that the Free Exercise Clause
required the accommodation, or mandatory accommodations) has
already been decided, not just once, but twice by the Court. Thus, the
crux of the matter is whether this Court can make exemptions as in
Ebralinag and the American Bible Society, in cases involving criminal
laws of general application.

We hold that the Constitution itself mandates the Court to do so for

the following reasons.

First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent
neutrality-accommodation approach in Philippine jurisdiction is
more pronounced and given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including

the notion of mandatory accommodations, was to address the
"inadvertent burdensome effect" that an otherwise facially neutral
law would have on religious exercise. Just because the law is criminal
in nature, therefore, should not bring it out of the ambit of the Free
Exercise Clause. As stated by Justice O’Connor in her concurring
opinion in Smith, "[t]here is nothing talismanic about neutral laws of
general applicability or general criminal prohibitions, for laws
neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as
laws aimed at religion."142

Third, there is wisdom in accommodation made by the Court as this is

the recourse of minority religions who are likewise protected by the
Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority. As stated in our
Decision, dated August 4, 2003:

....In a democratic republic, laws are inevitably based on the

presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical
matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to
religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural
traditions, legislators and executive officials are frequently willing to
make such exemptions when the need is brought to their attention,
but this may not always be the case when the religious practice is
either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows
accommodations prevents needless injury to the religious consciences
of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect
themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not
entirely an alien concept, nor will it be applied for the first time, as an
exemption of such nature, albeit by legislative act, has already been
granted to Moslem polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-

vis the other fundamental rights in the Bill of Rights. It has been
noted that unlike other fundamental rights like the right to life,
liberty or property, the Religion Clauses are stated in absolute terms,
unqualified by the requirement of "due process," "unreasonableness,"
or "lawful order." Only the right to free speech is comparable in its
absolute grant. Given the unequivocal and unqualified grant couched
in the language, the Court cannot simply dismiss a claim of
exemption based on the Free Exercise Clause, solely on the premise
that the law in question is a general criminal law. 143 If the burden is
great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach
require that the Court make an individual determination and not
dismiss the claim outright.

At this point, we must emphasize that the adoption of the benevolent

neutrality-accommodation approach does not mean that the Court
ought to grant exemptions every time a free exercise claim comes
before it. This is an erroneous reading of the framework which the
dissent of Mr. Justice Carpio seems to entertain. Although benevolent
neutrality is the lens with which the Court ought to view religion
clause cases, the interest of the state should also be afforded utmost
protection. This is precisely the purpose of the test—to draw the line
between mandatory, permissible and forbidden religious exercise.
Thus, under the framework, the Court cannot simply dismiss a claim
under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio,
for this precisely is the protection afforded by the religion clauses of
the Constitution.144 As stated in the Decision:

xxx While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the
degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue
its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. We here lay down
the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed above,
but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority,
however small- not only for a majority, however large but for each of
us" to the greatest extent possible within flexible constitutional
limits.145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision.

As mentioned, what remained to be resolved, upon which remand
was necessary, pertained to the final task of subjecting this case to the
careful application of the compelling state interest test, i.e.,
determining whether respondent is entitled to exemption, an issue
which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with
the transmittal of the Hearing Officer’s report,146 along with the
evidence submitted by the OSG, this case is once again with us, to
resolve the penultimate question of whether respondent should be
found guilty of the administrative charge of "disgraceful and immoral
conduct." It is at this point then that we examine the report and
documents submitted by the hearing officer of this case, and apply the
three-step process of the compelling state interest test based on the
evidence presented by the parties, especially the government.

On the sincerity of religious belief, the Solicitor General categorically

concedes that the sincerity and centrality of respondent’s claimed
religious belief and practice are beyond serious doubt.147 Thus,
having previously established the preliminary conditions required by
the compelling state interest test, i.e., that a law or government
practice inhibits the free exercise of respondent’s religious beliefs, and
there being no doubt as to the sincerity and centrality of her faith to
claim the exemption based on the free exercise clause, the burden
shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least
restrictive means of achieving that objective.

A look at the evidence that the OSG has presented fails to

demonstrate "the gravest abuses, endangering paramount interests"
which could limit or override respondent’s fundamental right to
religious freedom. Neither did the government exert any effort to
show that the means it seeks to achieve its legitimate state objective
is the least intrusive means.

The OSG merely offered the following as exhibits and their purposes:

1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter

to the OSG of Bro. Raymond B. Leach, Legal Representative of the
Watch Tower Bible and Tract Society of the Philippines, Inc.

Purpose: To show that the OSG exerted efforts to examine the

sincerity and centrality of respondent’s claimed religious belief and
practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification

dated September 30, 2003 issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of

respondent’s claimed religious belief and practice; and (2) to prove
that the Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovah’s Witnesses,
cannot be a source of any legal protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State

has a compelling interest to override respondent’s claimed religious
belief and practice, in order to protect marriage and the family as
basic social institutions. The Solicitor General, quoting the
Constitution148 and the Family Code,149 argues that marriage and the
family are so crucial to the stability and peace of the nation that the
conjugal arrangement embraced in the Declaration of Pledging
Faithfulness should not be recognized or given effect, as "it is utterly
destructive of the avowed institutions of marriage and the family for
it reduces to a mockery these legally exalted and socially significant
institutions which in their purity demand respect and dignity."150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes

the Solicitor General in so far as he asserts that the State has a
compelling interest in the preservation of marriage and the family as
basic social institutions, which is ultimately the public policy
underlying the criminal sanctions against concubinage and bigamy.
He also argues that in dismissing the administrative complaint
against respondent, "the majority opinion effectively condones and
accords a semblance of legitimacy to her patently unlawful
cohabitation..." and "facilitates the circumvention of the Revised
Penal Code." According to Mr. Justice Carpio, by choosing to turn a
blind eye to respondent’s criminal conduct, the majority is in fact
recognizing a practice, custom or agreement that subverts marriage.
He argues in a similar fashion as regards the state’s interest in the
sound administration of justice.

There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in the
sound administration of justice. Indeed, the provisions by which
respondent’s relationship is said to have impinged, e.g., Book V, Title
I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code,
Articles 334 and 349 of the Revised Penal Code, and even the
provisions on marriage and family in the Civil Code and Family Code,
all clearly demonstrate the State’s need to protect these secular
interests.

Be that as it may, the free exercise of religion is specifically

articulated as one of the fundamental rights in our Constitution. It is
a fundamental right that enjoys a preferred position in the hierarchy
of rights — "the most inalienable and sacred of human rights," in the
words of Jefferson. Hence, it is not enough to contend that the state’s
interest is important, because our Constitution itself holds the right to
religious freedom sacred. The State must articulate in specific terms
the state interest involved in preventing the exemption, which must
be compelling, for only the gravest abuses, endangering paramount
interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a
source of right by itself.

Thus, it is not the State’s broad interest in "protecting the institutions

of marriage and the family," or even "in the sound administration of
justice" that must be weighed against respondent’s claim, but the
State’s narrow interest in refusing to make an exception for the
cohabitation which respondent’s faith finds moral. In other words,
the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent
those objectives will be undermined if exemptions are granted.151
This, the Solicitor General failed to do.

To paraphrase Justice Blackmun’s application of the compelling

interest test, the State’s interest in enforcing its prohibition, in order
to be sufficiently compelling to outweigh a free exercise claim, cannot
be merely abstract or symbolic. The State cannot plausibly assert that
unbending application of a criminal prohibition is essential to fulfill
any compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete
interest in enforcing the concubinage or bigamy charges against
respondent or her partner. The State has never sought to prosecute
respondent nor her partner. The State’s asserted interest thus
amounts only to the symbolic preservation of an unenforced
prohibition. Incidentally, as echoes of the words of Messrs. J.
Bellosillo and Vitug, in their concurring opinions in our Decision,
dated August 4, 2003, to deny the exemption would effectively break
up "an otherwise ideal union of two individuals who have managed to
stay together as husband and wife [approximately twenty-five years]"
and have the effect of defeating the very substance of marriage and
the family.

The Solicitor General also argued against respondent’s religious

freedom on the basis of morality, i.e., that "the conjugal arrangement
of respondent and her live-in partner should not be condoned because
adulterous relationships are constantly frowned upon by society";152
and "that State laws on marriage, which are moral in nature, take
clear precedence over the religious beliefs and practices of any
church, religious sect or denomination on marriage. Verily, religious
beliefs and practices should not be permitted to override laws
relating to public policy such as those of marriage."153

The above arguments are mere reiterations of the arguments raised

by Mme. Justice Ynares-Santiago in her dissenting opinion to our
Decision dated August 4, 2003, which she offers again in toto. These
arguments have already been addressed in our decision dated August
4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-
Santiago’s dissenting opinion dwelt more on the standards of
morality, without categorically holding that religious freedom is not
in issue.155 We, therefore, went into a discussion on morality, in order
to show that:

(a) The public morality expressed in the law is necessarily

secular for in our constitutional order, the religion clauses
prohibit the state from establishing a religion, including the
morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers,157 or "public morals" in
the Revised Penal Code,158 or "morals" in the New Civil Code,159
or "moral character" in the Constitution,160 the distinction
between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind;161

(b) Although the morality contemplated by laws is secular,

benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state
interests;162

(c) The jurisdiction of the Court extends only to public and

secular morality. Whatever pronouncement the Court makes in
 the case at bar should be understood only in this realm where it
has authority.163

(d) Having distinguished between public and secular morality

and religious morality, the more difficult task is determining
which immoral acts under this public and secular morality fall
under the phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable.164
Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner
is legally married to another which Philippine law and
jurisprudence consider both immoral and illegal.165

(e) While there is no dispute that under settled jurisprudence,

respondent’s conduct constitutes "disgraceful and immoral
conduct," the case at bar involves the defense of religious
freedom, therefore none of the cases cited by Mme. Justice
Ynares-Santiago apply.166 There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a
member of the Jehovah’s Witnesses under the same
circumstances as respondent will not prevail over the laws on
adultery, concubinage or some other law. We cannot summarily
conclude therefore

that her conduct is likewise so "odious" and "barbaric" as to be

immoral and punishable by law.167

Again, we note the arguments raised by Mr. Justice Carpio with

respect to charging respondent with conduct prejudicial to the best
interest of the service, and we reiterate that the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the
best interest of the service.168

Mr. Justice Carpio’s slippery slope argument, on the other hand, is

non-sequitur. If the Court grants respondent exemption from the laws
which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church
annulment of their marriage even without a final annulment from a
civil court. First, unlike Jehovah’s Witnesses, the Catholic faith
considers cohabitation without marriage as immoral. Second, but
more important, the Jehovah’s Witnesses have standards and
procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an
investigative process whereby the elders of the congregation verify
the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal
impediments for the couple are lifted, the validity of the Declaration
ceases, and the congregation requires that the couple legalize their
union.

At bottom, the slippery slope argument of Mr. Justice Carpio is

speculative. Nevertheless, insofar as he raises the issue of equality
among religions, we look to the words of the Religion Clauses, which
clearly single out religion for both a benefit and a burden: "No law
shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof…" On its face, the language grants a unique
advantage to religious conduct, protecting it from governmental
imposition; and imposes a unique disadvantage, preventing the
government from supporting it. To understand this as a provision
which puts religion on an equal footing with other bases for action
seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family
relations. The language itself thus seems to answer whether we have
a paradigm of equality or liberty; the language of the Clause is clearly
in the form of a grant of liberty. 169

In this case, the government’s conduct may appear innocent and

nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which
perspective is appropriate would seem easy to answer. Moreover, the
text, history, structure and values implicated in the interpretation of
the clauses, all point toward this perspective. Thus, substantive
equality—a reading of the religion clauses which leaves both
politically dominant and the politically weak religious groups equal
in their inability to use the government (law) to assist their own
religion or burden others—makes the most sense in the interpretation
of the Bill of Rights, a document designed to protect minorities and
individuals from mobocracy in a democracy (the majority or a
coalition of minorities). 170

As previously discussed, our Constitution adheres to the benevolent

neutrality approach that gives room for accommodation of religious
exercises as required by the Free Exercise Clause.171 Thus, in arguing
that respondent should be held administratively liable as the
arrangement she had was "illegal per se because, by universally
recognized standards, it is inherently or by its very nature bad,
improper, immoral and contrary to good conscience,"172 the Solicitor
General failed to appreciate that benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not
offend compelling state interests.173

Finally, even assuming that the OSG has proved a compelling state
interest, it has to further demonstrate that the state has used the
least intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the state,
i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties.174 Again, the
Solicitor General utterly failed to prove this element of the test. Other
than the two documents offered as cited above which established the
sincerity of respondent’s religious belief and the fact that the
agreement was an internal arrangement within respondent’s
congregation, no iota of evidence was offered. In fact, the records are
bereft of even a feeble attempt to procure any such evidence to show
that the means the state adopted in pursuing this compelling interest
is the least restrictive to respondent’s religious freedom.

Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritor’s conjugal arrangement cannot
be penalized as she has made out a case for exemption from the law
based on her fundamental right to freedom of religion. The Court
recognizes that state interests must be upheld in order that freedoms
- including religious freedom - may be enjoyed. In the area of religious
exercise as a preferred freedom, however, man stands accountable to
an authority higher than the state, and so the state interest sought to
be upheld must be so compelling that its violation will erode the very
fabric of the state that will also protect the freedom. In the absence of
a showing that such state interest exists, man must be allowed to
subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is

dismissed.

SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Asscociate Justice

ANGELINA SANDOVAL-
ANTONIO T. CARPIO
GUTIERREZ
Asscociate Justice
Associate Justice

MA. ALICIA AUSTRIA-

RENATO C. CORONA
MARTINEZ
Asscociate Justice
Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice
 PRESBITERO J. VELASCO, JR.
Associate Justice

Footnotes

1 Estrada v. Escritor, 455 Phil. 411 (2003).

2 Id. at 444. Incidentally, Escritor moved for the inhibition of

Judge Caoibes from hearing her case to avoid suspicion and bias
as she previously filed an administrative case against him.
Escritor’s motion was denied.

3 Id. The Code provides:

Sec. 46. Discipline: General Provisions. –

(a) No officer or employee in the Civil Service shall be

suspended or dismissed except for cause as provided by law
and after due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

4 Id. at 445.

5 Id. at 445, 447.

6 Id. at 445, 453, and 457.

7 Id. at 445-456. The Declaration provides:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted

Luciano D. 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 this marital relationship.

I recognize this relationship as a binding tie before ‘Jehovah’

God and before all persons to be held to and honored in full
accord with the principles of God’s Word. I will continue to
seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time
a change in circumstances make this possible, I promise to
legalize this union.

Signed this 28th day of July 1991.

Parenthetically, Escritor’s partner, Quilapio, executed a

similar pledge on the same day. Both pledges were executed
in Atimonan, Quezon and signed by three witnesses. At the
time Escritor executed her pledge, her husband was still
alive but living with another woman. Quilapio was likewise
married at that time, but had been separated in fact from his
wife. Id. at 446.

8 Id. at 447-448, 452-453. Based on the testimony of Gregorio

Salazar, a member of the Jehovah’s Witnesses since 1985. As
presiding minister since 1991, he is aware of the rules and
regulations of the Congregation. An authenticated copy of the
magazine article entitled, "Maintaining Marriage Before God and
Men," which explains the rationale behind the Declaration, was
also presented.

9 Id. at 449.

10 Id. at 452.

11 Id. at 449.

12 See id. at 447-452.

13 Id. at 445, 453, and 457.

14 Id. at 596.

15 Id. at 599-600.

16Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457;
Gokongwei v. SEC, G.R. No. 52129, April 21, 1980, 97 SCRA 78;
Commissioner of Public Highways v. Burgos, G.R. No. L-36706,
March 31, 1980, 96 SCRA 831; Municipality of Daet v. C.A., G.R.
No. L-35861, October 18, 1979, 93 SCRA 503; and People’s
Homesite and Housing Corp. v. Mencias, G.R. No. L-24114,
August 16, 1967, 20 SCRA 1031.

17 See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468

(2003).

18During primitive times, when there was no distinction between

the religious and secular, and the same authority that
promulgated laws regulating relations between man and man
promulgated laws concerning man’s obligations to the
supernatural. See id. at 458-459.

19 This was the time of theocracy, during the rise of the Hebrew
state and the Mosaic religion. See id. at 459-461.

20Following the rise of Saul, and the pre-Christian Rome which

engaged in emperor-worship. See id. at 461-462.

21 Id. at 462-463.

22 Id. at 468.

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 (2003).

26 Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 575(4th ed. 1997).

27Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing Beth, L.,
American Theory of Church and State 71 (1958).

28 See id. at 487, 512-516.

29 Id. at 515, citing Buzzard, L., Ericsson, S., The Battle for
Religious Liberty 46 (1980); Beth, L., American Theory of Church
and State 71 & 72 (1958); and Grossman, J.B. and Wells, R.S.,
Constitutional Law & Judicial Policy Making 1276 (2nd ed. 1980).

30 Id. at 515, citing The Constitution and Religion 1541.

31 See Drakeman, D., Church-State Constitutional Issues 55

(1991), citing Cord, R., Separation of Church and State: Historical
Fact and Current Fiction 50. Thus:

The [separationist] school of thought argues that the First

Congress intended to allow government support of religion,
at least as long as that support did not discriminate in favor
of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for
example, was on the congressional committee that
appointed a chaplain, he declared several national days of
prayer and fasting during his presidency, and he sponsored
Jefferson’s bill for punishing Sabbath breakers; moreover,
while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one
recent book, "there is no support in the Congressional
records that either the First Congress, which framed the
First Amendment, or its principal author and sponsor, James
Madison, intended that Amendment to create a state of
complete independence between religion and government. In
fact, the evidence in the public documents goes the other
way." Id. at 513-514.
32 Id. at 514, citing Drakeman, D., Church-State Constitutional
Issues 55 (1991), Cord, R., Separation of Church and State:
Historical Fact and Current Fiction 50; and 1 The Debates and
Proceedings in the Congress of the United States, Compiled from
Authentic Materials 949-950 (Annala, Gales, J. and Seaton, W.,
eds.). Only two members of U.S. Congress opposed the resolution,
one on the ground that the move was a "mimicking of European
customs, where they made a mere mockery of thanksgivings," the
other on establishment clause concerns. Nevertheless, the
salutary effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further
recorded discussion.

33 Id. at 515, citing Weber, P., Neutrality and First Amendment

Interpretation in Equal Separation 3 (1990).

34 330 U.S. 1 (1946). It was in this case that the U.S. Supreme
Court adopted Jefferson’s metaphor of "a wall of separation
between church and state" as encapsulating the meaning of the
Establishment Clause. Said the U.S. Court: "The First Amendment
has erected a wall between church and state. That wall must be
kept high and impregnable. We could not approve the slightest
breach…." Id. at 18.

35 Everson v. Board of Education, 330 U.S. 1, 18 (1947).

36 See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing The
Constitution and Religion 1541; and Kurland, Of Church and
State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
Parenthetically, the U.S. Court in Employment Division, Oregon
Department of Human Resources v. Smith, 494 U.S. 872 (1990),
echoed the rationale of the separationists, when it held that if
government acts in pursuit of a generally applicable law with a
secular purpose that merely incidentally burdens religious
exercise, the First Amendment has not been offended.

37 374 U.S. 203 (1963).

38 Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing Buzzard,
L., Ericsson, S., The Battle for Religious Liberty 60 (1980).

39Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free

Exercise of Religion in Weber, P., Equal Separation 1189 (1990).

40Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a

Pluralist Concept of Accommodation, in Weber, P., Equal
Separation 74-75 (1990).

41 I.e., the "garden" of the church must be walled in for its own
protection from the "wilderness" of the world with its potential
for corrupting those values so necessary to religious
commitment. According to Williams, this wall is breached, for
the church is in the state, and so the remaining purpose of the
wall is to safeguard religious liberty. Williams’ wall, therefore,
would allow for interaction between church and state, but is
strict with regard to state action which would threaten the
integrity of religious commitment. His conception of separation
is not total such that it provides basis for certain interactions
between church and state dictated by apparent necessity or
practicality.

See discussion of the birth of the theory in Estrada v.

Escritor, 455 Phil. 411, 518-519 (2003).

42 343 U.S. 306 (1951).

43 Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).

44 Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).

45 Marsh v. Chambers, 463 US 783, 792-93 (1983).

46 Sherbert v. Verner, 374 US 398, 403-04 (1963).

47 Bowen v. Kendrick, 487 US 589, 611 (1988).

48 Board of Education v. Allen, 392 US 236, 238 (1968).

49 Everson v. Board of Education, 330 US 1, 17 (1947).

50 Committee for Public Education and Religious Liberty v.

Regan, 444 US 646, 653-54 (1980).

51 Cited in McConnel, M., Accommodation of Religion: An Update

and a Response to the Critics, 60 The George Washington Law
Review 685, 688. See Estrada v. Escritor, 455 Phil. 411, 522-523
(2003).

52Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S.,
The Resurrection of Religious Freedom, 107 Harvard Law Review
118, 1280129 (1993).

53 Id. at 482, citing Sullivan, K., Religion and Liberal Democracy,

59 The University of Chicago Law Review 195, 214-215 (1992).

54 Id.

55374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson,
Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-
Kent L. Rev. 1287, 1302 (2005).

56 Carmella, Angela C., State Constitutional Protection of

Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993
B.Y.U.L.Rev. 275, 277 (1993).

57 Sherbert v. Verner, 374 U.S. 398, 403 (1963).

58 Id. at 406.

59Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I.,
The Religion Clauses and Justice Brennan in Full, 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).
61 406 U.S. 205 (1972).

62 Id. at 214-215, 219-220.

63 Ivan E. Bodensteiner, The Demise of the First Amendment as a

Guarantor of Religious Freedom, 27 Whittier L. Rev. 415,417-418
(2005). (citations omitted)

64 See Pepper, Stephen, Conflicting Paradigms of Religious

Freedom: Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 30-32
(1993).

65 Id. at 30-32.

66 Id.

67 Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing Stephens,

Jr., O.H. and Scheb, II J.M., American Constitutional Law 522-523
and 526 (2nd ed. 1999).

68 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn

v. Johnson: More Rotted Fruit From Employment Division v.
Smith, 80 Chi.-Kent L. Rev. 1287, 1304 (2005).

69 494 U.S. 872 (1990).

70 Chemerinsky, Erwin, Constitutional Law: Principles and

Policies 1211 (2nd ed. 2002).

71494 U.S. 872, 878-889 (1990), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1211 (2nd ed. 2002).

72 494 U.S. 872, 879 (1990), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

73 494 U.S. 872, 881 (1990), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
74 494 U.S. 872, 882 (1990), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

75 494 U.S. 872, 884 (1990), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

76 494 U.S. 872, 888 (1990), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

77 See Chemerinsky, Erwin, Constitutional Law: Principles and

Policies 1213 (2nd ed. 2002).

78 Employment Division v. Smith, 494 U.S. 872, 906 (1990).

(O’Connor, J. concurring in the judgment) This portion of her
concurring 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).

79Id at 903. (O’Connor, J. concurring in the judgment), cited in

Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1212 (2nd ed. 2002).

80Id. at 902. (O’Connor, J. concurring in the judgment) cited in

Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1212 (2nd ed. 2002).

81Id. at 908-909. (Blackmun, J. dissenting), cited in Chemerinsky,

Erwin, Constitutional Law: Principles and Policies 1213 (2nd ed.
2002).

82Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56

Hastings L.J. 699 (2005).

83 Id.

84Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule:
The Failure of the Oregon Employment Division v. Smith "Hybrid
Rights Exception," 108 Penn. St. L. Rev. 573, 581 (2003).

85 Id.

86Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell,

M., Accommodation of Religion: An Update and a Response to the
Critics, 60 The George Washington Law Review 685, 726 (1992).

87Id. at 482, citing McCoy, T., A Coherent Methodology for First

Amendment Speech and Religion Clause Cases, 48 Vanderbilt
Law Review, 1335, 1350-1352 (1995).

88Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56

Hastings L.J. 699 (2005).

89 Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II Ducat,

C., Constitutional Interpretation 1180 & 1191 (2000). See also
Sullivan, K., Religion and Liberal Democracy, 59 The University of
Chicago Law Review 195, 216 (1992).

90 Id. at 502, citing McConnell, M., Religious Freedom at a

Crossroads, 59 The University of Chicago Law Review 115, 139
(1992).

91Id., citing Sullivan, K., Religion and Liberal Democracy, 59 The

University of Chicago Law Review 195, 216 (1992).

92Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56

Hastings L.J. 699 (2005).

93Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T.,
A Coherent Methodology for First Amendment Speech and
Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-
1351 (1995).

94 Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District

v. Gobitis, 310 U.S. 586 (1940); and Employment Division, Oregon
Department of Human Resources v. Smith, 494 U.S. 872 (1990).
95Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T.,
A Coherent Methodology for First Amendment Speech and
Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-
1351 (1995).

96 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn

v. Johnson: More Rotted Fruit From Employment Division v.
Smith, 80 Chi.-Kent L. Rev. 1287, 1327 (2005).

97 Bodensteiner, Ivan E., The Demise of the First Amendment As a

Guarantor of Religious Freedom, 27 Whittier L. Rev. 415, 419
(2005).

98 Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule:
The Failure of the Oregon Employment Division v. Smith "Hybrid
Rights Exception", 108 Penn. St. L. Rev. 573, 584 (2003).

99 See Cohen, William & Danelski, David J., Constitutional Law:

Civil Liberty and Individual Rights 620-621 (4th ed. 1997).

100 Id.

101Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S.,
The Resurrection of Religious Freedom, 107 Harvard Law Review
118 (1993).

102 42 U.S.C. §2000bb.

10342 U.S.C. §2000bb, Sec. (a) (4), cited in Chemerinsky, Erwin,

Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).

104 Id.

105 Chemerinsky, Erwin, Constitutional Law: Principles and

Policies 1212 (2nd ed. 2002).

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 local governments, but did not resolve the
constitutionality of the law as applied to the federal government.
Some federal courts have expressly ruled that the RFRA is
constitutional as applied to the federal government. See
Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1216 (2nd ed. 2002).

108 See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr.,
Religious Freedom: History, Cases, and Other Materials on the
Interaction of Religion and Government 531 (2001).

109 Carmella, Angela C., State Constitutional Protection of

Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993
B.Y.U.L.Rev. 275, 278 (1993).

110 Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn

v. Johnson: More Rotted Fruit From Employment Division v.
Smith, 80 Chi.-Kent L. Rev. 1287, 1327 (2005).

111 Estrada v. Escritor, 455 Phil. 411, 526 (2003).

112 Id. at 527, citing Buzzard, L., Ericsson, S., The Battle for
Religious Liberty 61-62 (1980).

113 Walz v. Tax Commission, 397 U.S. 664, 673 (1969).

114 343 U.S. 306 (1952).

115 463 U.S. 783 (1983).

116McConnell, M., Accommodation of Religion: An Update and a

Response to the Critics, 60 The George Washington Law Review
685, 715 (1992).

117 333 U.S. 203 (1948).

118 Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing Buzzard,
L., Ericsson, S., The Battle for Religious Liberty 61-63 (1980).
119Kmiec, 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 H.
Choper, The Rise and Decline of the Constitutional Protection of
Religious Liberty, 70 Neb. L. Rev. 651 (1991) (criticizing Smith).
Cited in Chemerinsky, Erwin, Constitutional Law: Principles and
Policies 1213 (2nd ed. 2002).

122McConnell, The Origins and Historical Understanding of Free

Exercise of Religion, 103 Harvard Law Review 1410, 1416-1417
(1990).

123 Constitution, (1935), Art. VI, Sec. 22, par 3(b); Constitution,
(1973), Art. VI, Sec. 22(3); and Constitution, (1987), Art.VI, Sec.
28(3).

124 Constitution, (1935), Art. VI, Sec. 23(3); Constitution, (1973),

Art. VIII, Sec. 18(2); and Constitution, (1987), Art. VI, Sec. 29(2).

125 Constitution, (1935) Art. XIII, Sec. 5; Constitution, (1973), Art.

XV, Sec. 8(8); and Constitution, (1987), Art. XIV, Sec. 3(3).

126"Divine Providence" in the 1935 and 1973 Constitutions; and

"Almighty God" in the 1987 Constitution.

127 Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).

128 Id. at 564 and 575.

129 Id. at 563-564.

130 Id. at 574. As stated in the Decision dated August 4, 2003:

 Considering the American origin of the Philippine religion
clauses and the intent to adopt the historical background,
nature, extent and limitations of the First Amendment of the
U.S. Constitution when it was included in the 1935 Bill of
Rights, it is not surprising that nearly all the major
Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and
limitations of these clauses. However, a close scrutiny of
these cases would also reveal that while U.S. jurisprudence
on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the
well-spring of Philippine jurisprudence on this subject is for
the most part, benevolent neutrality which gives room for
accommodation. Id. at 536.

131 101 Phil. 386 (1957).

132 G.R. No. 95770, March 1, 1993, 219 SCRA 256.

133 Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this

prior case, petitioners were also members of the Jehovah’s
Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265
which prescribed compulsory flag ceremonies in all public
schools. In violation of the Order, petitioner’s children refused to
salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed
that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to
their religious belief. The Court denied exemption, and sustained
the expulsion of petitioners’ children, on the ground that "If the
exercise of religious belief clashes with the established
institutions of society and with the law, then the former must
yield to the latter."

134 Id. at 270-271.

135G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also
Basa v. Federacion Obrera, G.R. No. L-27113, November 19, 1974,
61 SCRA 93; Gonzalez v. Central Azucarera de Tarlac Labor
Union, G.R. No. L-38178, October 3, 1985, 139 SCRA 30.

136 Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246,

September 12, 1974, 59 SCRA 54, 74-75. The Court stressed that "
(a)lthough the exemption may benefit those who are members of
religious sects that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely incidental
and indirect." In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden
imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded
the issue of exemption by citing Sherbert which laid down the
rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state
interest" intervenes. The Court then abruptly added that "(i)n the
instant case, We see no compelling state interest to withhold
exemption." Id.

137 Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).

138 Id. at 529-531.

139 98 U.S. 145 (1878).

140 See Kmiec, Douglas, W, & Presser, Stephen B, Individual

Rights and the American Constitution 105 (1998). In this case, the
issue was whether a general federal law criminalizing polygamy
can be applied to a Mormon whose religion included that
practice. The U.S. Court, in affirming Reynold’s conviction, ruled
that the prohibition of polygamy was justified by the importance
of monogamous, heterosexual marriage, a practice upon which
society may be said to be built, and perhaps even upon which
democratic traditions depend. Thus, according to the U.S. Court,
this important societal interest prevails over the countervailing
religious practice of the Mormons.
141 A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.

142 494 U.S. 872 (1990). (O’Connor, J. concurring) According to

Justice O’Connor:

…Even if, as an empirical matter, a government’s criminal

laws might usually serve a compelling interest in health,
safety, or public order, the First Amendment at least requires
a case-by-case determination of the question, sensitive to the
facts of each particular claim… Given the range of conduct
that a State might legitimately make criminal, we cannot
assume, merely because a law carries criminal sanctions
and is generally applicable, that the First Amendment never
requires the State to grant a limited exemption for
religiously motivated conduct.

Parenthetically, J. Brennan, J. Marshall, and J. Blackmun

joined Parts I and II of Justice O’Connor’s opinion, including
the above-cited portions, but did not concur in the judgment.

143 See Pepper, Stephen, Conflicting Paradigms of Religious

Freedom: Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 12-13
(1993).

144 Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).

145Id., citing McConnell, M., Religious Freedom at a Crossroads,

59(1) Univ. of Chicago Law Review 115, 169 (1992).

146Dated May 6, 2005, by retired Associate Justice Romulo S.

Quimbo, rollo, p. 714.

147 Rollo, pp. 687-689.

148 OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing

Constitution, Art. II, Sec. 12, which provides: "The State
recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution."
149 Id. at 21, citing the Family Code, Art. 149, which provides:
"The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be
recognized or given effect."

150 Id. at 21-22.

151 See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).

152 OSG Memorandum-In-Intervention, rollo, p. 23.

153 Id. at 26.

154 Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of
the decision addressed the issue of morality raised by Mme.
Justice Ynares-Santiago and Mr. Justice Vitug, who also had a
separate opinion, albeit differing in conclusion.

155 Id. at 580.

156 Id. at 586-588.

157 Rule 1.01 of the Code of Professional Responsibility provides

that, "(a) lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)

158 Title Six of the Revised Penal Codeis entitled Crimes against
Public Morals and includes therein provisions on gambling and
betting. (emphasis supplied)

159 The New Civil Code provides, viz:

"Article 6. Rights may be waived, unless the waiver is

contrary to law, public order, public policy, morals, or
good ustoms or prejudicial to a third person with a right
recognized by law.
 Article 21. Any person who willfully causes loss or injury
to another in manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.

Article 1306. The contran/a>blish such stipulations,

clauses, terms and conditions as they may deem
convenient, provided that are not contrary to law,
morals, good customs, public order, or public policy.

Article 1409. The following contracts are inexistent and

void from the beginning:

(1) Those whose cause, object or purpose is contrary

to law, morals, good customs, public order or public
policy; x x x" (emphases supplied)

160 Article XIV, Section 3 provides in relevant part, viz:

(1)All educational institutions shall include the study of the

Constitution as part of the curricula.

(2)They shall inculcate patriotism and nationalism, foster

love of humanity, respect for human rights, appreciation of
the role of national heroes in the historical development of
the country, teach the rights and duties of citizenship,
strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and
creative thinking, broaden scientific and technological
knowledge, and promote vocational efficiency. (emphasis
supplied)

161 Estrada v. Escritor, 455 Phil. 411, 586 (2003).

162 Id. at 589-590.

163 Id. at 591.

164 Id. at 592.

 165 Id. at 593.

166 Id. at 593-595.

167 Id. at 594-595.

168 Id. at 595-596.

169Pepper, Stephen, Conflicting Paradigms of Religious Freedom:

Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 12 (1993).

170 Id. at 51.

171 Estrada v. Escritor, 455 Phil. 411, 574 (2003).

172 OSG Memorandum-In-Intervention, rollo, p. 708.

173 See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).

174 Id. at 529-531.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

With due respect, I am unable to agree with the finding of the

majority that "in this particular case and under these particular
circumstances, respondent Escritor’s conjugal arrangement does not
constitute disgraceful and immoral conduct" and its decision to
dismiss the administrative complaint filed by petitioner against
respondent Soledad S. Escritor.

The issue in this case is simple. What is the meaning or standard of

"disgraceful and immoral conduct" to be applied by the Supreme
Court in disciplinary cases involving court personnel?

The degree of morality required of every employee or official in the

public service has been consistently high. The rules are particularly
strict when the respondent is a Judge or a court employee.1 Even
where the Court has viewed certain cases with human understanding
and compassion, it has insisted that no untoward conduct involving
public officers should be left without proper and commensurate
sanction.2 The compassion is shown through relatively light
penalties. Never, however, has this Court justified, condoned, or
blessed the continuation of an adulterous or illicit relationship such
as the one in this case, after the same has been brought to its
attention.

Is it time to adopt a more liberal approach, a more "modern" view

and a more permissive pragmatism which allow adulterous or illicit
relations to continue provided the job performance of the court
employee concerned is not affected and the place and order in the
workplace are not compromised? When does private morality
involving a court employee become a matter of public concern?
The Civil Service Law punishes public officers and employees for
disgraceful and immoral conduct.3 Whether an act is immoral within
the meaning of the statute is not to be determined by respondent’s
concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform,
the act which it condemns.4

The ascertainment of what is moral or immoral calls for the

discovery of contemporary community standards. For those in the
service of the Government, provisions of law and court precedents
also have to be considered. The task is elusive.

The layman’s definition of what is "moral" pertains to excellence of

character or disposition. It relates to the distinction between right
and wrong; virtue and vice; ethical praise or blame. Moral law refers
to the body of requirements in conformity to which virtuous action
consists. Applied to persons, it is conformity to the rules of morality,
being virtuous with regards to moral conduct.5

That which is not consistent with or not conforming to moral law,

opposed to or violating morality, and now, more often, morally evil or
impure, is immoral. Immoral is the state of not being virtuous with
regard to sexual conduct.6

The term begs the definition. Hence, anything contrary to the

standards of moral conduct is immoral. A grossly immoral act must
be so corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.7

Anything plainly evil or dissolute is, of course, unchangingly immoral.

However, at the fringes or boundary limits of what is morally
acceptable and what is unacceptably wrong, the concept of
immorality tends to shift according to circumstances of time, person,
and place. When a case involving the concept of immorality comes to
court, the applicable provisions of law and jurisprudence take center
stage.
Those who choose to tolerate the situation where a man and a
woman separated from their legitimate spouses decide to live
together in an "ideal" and yet unlawful union state – or more
specifically, those who argue that respondent’s cohabiting with a man
married to another woman is not something which is willful, flagrant,
or shameless – show a moral indifference to the opinion of the good
and respectable members of the community in a manner prejudicial
to the public service.

Insofar as concepts of morality are concerned, various individuals or

cultures may indeed differ. In certain countries, a woman who does
not cover herself with a burka from head to foot may be arrested for
immoral behavior. In other countries, near nudity in beaches passes
by unnoticed. In the present case, the perceived fixation of our society
over sex is criticized. The lesser degree of condemnation on the sins of
laziness, gluttony, vanity, selfishness, avarice and cowardice is
decried as discriminatory.

The issue in this case is legal and not philosophical. It is a limited one.
Is respondent Soledad S. Escritor guilty of "disgraceful and immoral"
conduct in the context of the Civil Service Law? Are there any
sanctions that must be imposed?

We cannot overlook the fact that respondent Escritor would have

been convicted for a criminal offense if the offended party had been
inclined and justified to prosecute her prior to his death in 1998. Even
now, she is a co-principal in the crime of concubinage. A married
woman who has sexual intercourse with a man not her husband, and
the man who has carnal knowledge of her knowing her to be married,
commit the crime of adultery.8 Abandonment by the legal husband
without justification does not exculpate the offender; it merely
mitigates the penalty.

The concubine with whom a married man cohabits suffers the penalty
of destierro.9 It is true that criminal proceedings cannot be instituted
against persons charged with adultery or concubinage except upon
complaint of the offended party.10 This does not mean that no
actionable offense has been committed if the offended party does not
press charges. It simply cannot be prosecuted. The conduct is not
thereby approved, endorsed or commended. It is merely tolerated.

The inescapable fact in this case is that acts defined as criminal under
penal law have been committed.

There are experts in Criminal Law who believe that the codal
provisions on adultery and concubinage are terribly outmoded and
should be drastically revised. However, the task of amendment or
revision belongs to Congress, and not to the Supreme Court.

Our existing rule is that an act so corrupt or false as to constitute a

criminal act is "grossly immoral."11 It is not merely "immoral."
Respondent now asks the Court to go all the way to the opposite
extreme and condone her illicit relations with not even an admonition
or a slight tap on the wrist.

I do not think the Court is ready to render a precedent-setting

decision to the effect that, under exceptional circumstances,
employees of the judiciary may live in a relationship of adultery or
concubinage with no fear of any penalty or sanction and that after
being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is not
limited to court interpreter Soledad Escritor. It is not a pro hac vice
ruling. It applies to court employees all over the country and to
everybody in the civil service. It is not a private ruling but one which
is public and far-reaching in its consequences.

In the 1975 case of De Dios v. Alejo,12 the Court applied compassion

and empathy but nonetheless recognized as most important a
mending of ways through a total breaking of relationships. The facts
in that case are strikingly similar to those in this case. Yet, the Court
required a high degree of morality even in the presence of apparently
exculpating circumstances. It was stated:

While it is permissible to view with human understanding and

compassion a situation like that in which respondents find
themselves, the good of the service and the degree of morality which
every official and employee in the public service must observe, if
respect and confidence are to be maintained by the government in the
enforcement of the law, demand that no untoward conduct on his
part, affecting morality, integrity and efficiency, while holding office
should be left without proper and commensurate sanction, all
attendant circumstances taken into account. In the instant case, We
cannot close our eyes to the important considerations that
respondents have rendered government service for more than thirty-
three and twenty-five years, respectively, and that there is no showing
that they have ever been found guilty of any administrative
misconduct during all those periods. In the case of respondent Alejo,
it seems rather sadistic to make her suffer the extreme penalty of
dismissal from the service after she had taken care of her co-
respondent’s four children, giving them the needed love and attention
of a foster mother after they were completely abandoned by their
errant and unfaithful natural mother. Even respondent Marfil, if to a
lesser degree, is deserving of compassion. Most importantly,
respondents have amply demonstrated that they recognize
their mistake and have, therefore, actually mended their ways
by totally breaking their relationship complained of, in order
to conform with the imperatives of public interest. (Emphasis
supplied)

The standards for those in the judicial service are quite exacting.

The Court has ruled that in the case of public servants who are in the
judiciary, their conduct and behavior, from the presiding judge to
the lowliest clerk, must not only be characterized by propriety and
decorum, but above all else, must be above suspicion.13

In Burgos v. Aquino,14 it was ruled:

The Code of Judicial Ethics mandates that the conduct of court

personnel must be free from any whiff of impropriety, not only with
respect to his duties in the judicial branch but also to his behavior
outside the court as a private individual. There is no dichotomy of
morality; a court employee is also judged by his private morals. These
exacting standards of morality and decency have been strictly
adhered to and laid down by the Court to those in the service of the
judiciary. Respondent, as a court stenographer, did not live up to her
commitment to lead a moral life. Her act of maintaining relations
with Atty. Burgos speaks for itself.

Respondent Aquino was a court stenographer who was suspended for

six months for maintaining illicit relations with the husband of
complainant Virginia E. Burgos. The Court therein stated that a
second offense shall result in dismissal.

We should not lose sight of the fact that the judicial system over
which it presides is essentially composed of human beings who, as
such, are naturally prey to weakness and prone to errors.
Nonetheless, in Ecube-Badel v. Badel,15 we imposed on respondent a
suspension for six months and one day to one year with warning of
dismissal should the illicit relations be repeated or continued.

In Nalupta v. Tapec,16 a deputy sheriff was suspended, also for six

months, for having illicit relations with a certain Cristian Dalida who
begot a son by him. His wife complained and neighbors confirmed
that Tapec was frequently seen leaving the house of Consolacion
Inocencio in the morning and returning to it in the afternoon. Tapec
and Inocencio begot two children. Consistently with the other cases,
we imposed the penalty of suspension for the first offense with the
graver penalty of dismissal for a second offense.

The earlier case of Aquino v. Navarro17 involved an officer in the

Ministry of Education, Culture and Sports who was abandoned by her
husband a year after their marriage and who lived alone for eighteen
years with their child. Pretending that she sincerely believed her
husband to have died, she entered into a marital relationship with
Gonzalo Aquino and had children by him in 1968 and 1969. Eighteen
days before their third child was born on May 25, 1975, the two
decided to get married. Notwithstanding the illicit relationship which
blossomed into a bigamous marriage, the full force of the law was not
applied on her, "considering the exceptional circumstances that befell
her in her quest for a better life." Still, a penalty of six months
suspension was imposed with a warning that "any moral relapse on
her part will be severely dealt with."

Times are changing. Illicit sex is now looked upon more kindly.
However, we should not completely disregard or overlook a
relationship of adultery or concubinage involving a court employee
and not order it to be terminated. It should not ignore what people
will say about our moral standards and how a permissive approach
will be used by other court employees to freely engage in similarly
illicit relationship with no fear of disciplinary punishment.

As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr.

had existing marriages with their respective legitimate spouses when
they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore,
immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on
July 28, 1991 the "Declaration of Pledging Faithfulness" to make their
relationship what they alleged it would be – a binding tie before
Jehovah God.

In this case, respondent is charged not as a Jehovah’s Witness but in

her capacity as a court employee. It is contended that respected elders
of the Jehovah’s Witnesses sanction "an informal conjugal
relationship" between respondent and her marital partner for more
than two decades, provided it is characterized by faithfulness and
devotion to one another. However, the "informal conjugal
relationship" is not between two single and otherwise eligible persons
where all that is missing is a valid wedding ceremony. The two
persons who started to live together in an ostensible marital
relationship are married to other persons.

We must be concerned not with the dogmas or rules of any church or

religious sect but with the legal effects under the Civil Service Law of
an illicit or adulterous relationship characterized by the facts of this
case.
There is no conflict in this case between the dogmas or doctrines of
the Roman Catholic Church and those of the Jehovah’s Witnesses or
any other church or denomination. The perceived conflict is non-
existing and irrelevant.

The issue is legal and not religious. The terms "disgraceful" and
"immoral" may be religious concepts, but we are concerned with
conduct which under the law and jurisprudence is proscribed and, if
perpetrated, how it should be punished.

Respondent cannot legally justify her conduct by showing that it was

morally right by the standards of the congregation to which she
belongs. Her defense of freedom of religion is unavailing. Her
relationship with Mr. Quilapio is illicit and immoral, both under the
Revised Administrative Code18 and the Revised Penal Code,19
notwithstanding the supposed imprimatur given to them by their
religion.

The peculiar religious standards alleged to be those of the sect to

which respondent belongs can not shield her from the effects of the
law. Neither can her illicit relationship be condoned on the basis of a
written agreement approved by their religious community. To
condone what is inherently wrong in the face of the standards set by
law is to render nugatory the safeguards set to protect the civil
service and, in this case, the judiciary.

The Court cannot be the instrument by which one group of people is

exempted from the effects of these laws just because they belong to a
particular religion. Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the judiciary, and it must do
so with an even hand regardless of her religious affiliation.

I find that respondent’s "Declaration of Pledging Faithfulness" does

nothing for her insofar as this administrative matter is concerned, for
written therein are admissions regarding the legal impediments to
her marrying Quilapio. In the said document, she even pledged to
seek all avenues to obtain legal recognition by civil authorities of her
union with Quilapio.20 However, the record is silent as to any effort
on respondent’s part to effect this covenant.

The evidence shows that respondent repeatedly admitted the

existence of the legal infirmities that plague her relationship with
Quilapio.21 As a court interpreter, she is an integral member of the
judiciary and her service as such is crucial to the administration of
justice. Her acts and omissions constitute a possible violation of the
law – the very same law that she is sworn to uphold as an employee
of the judiciary. How can she work under the pretense of being a
contributing force to the judicial system if she herself is committing
acts that may constitute breaking the law?

Respondent invokes her constitutional right to religious freedom. The

separation of church and state has been inviolable in this jurisdiction
for a century. However, the doctrine is not involved in this case.22
Furthermore, the legislature made cohabitation with a woman who is
not one’s wife a crime through the enactment of the Revised Penal
Code.23 The legislative power has also seen fit to enact the Civil
Service Law and has given said law general application.

The argument that a marital relationship is the concern of religious

authorities and not the State has no basis.

In Reynolds v. United States,24 the U.S. Supreme Court stated:

It is impossible to believe that the constitutional guaranty of religious

freedom was intended to prohibit legislation in respect to this most
important feature of social life. Marriage, while from its very nature a
sacred obligation, is, nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said to
be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily
required to deal.

The strengthening of marriage ties and the concomitant hostility to

adulterous or illicit marital relations is a primary governmental
concern. It has nothing to do with the particular religious affiliations
of those affected by legislation in this field.

The relations, duties, obligations and consequences of marriage are

important to the morals and civilization of a people and to the peace
and welfare of society.25 Any attempt to inject freedom of religion in
an effort to exempt oneself from the Civil Service rules relating to the
sanctity of the marriage tie must fail.

The U.S. Supreme Court in the above-cited case of Reynolds v. United

States26 upheld federal legislation prohibiting bigamy and polygamy
in territories of the United States, more specifically Utah. Members of
the Mormon Church asserted that the duty to practice polygamy was
an accepted doctrine of their church. In fact, Mormons had trekked
from the regular States of the Union to what was then a mere
Territory in order to practice their religious beliefs, among them
polygamy. The Court declared that while it protected religious belief
and opinion, it did not deprive Congress of the power to reach actions
violative of social duties or subversive of good order. Polygamy was
outlawed even for Mormons who considered it a religious obligation.

We must not exempt illegal conduct or adulterous relations from

governmental regulation simply because their practitioners claim it is
part of their free exercise of religious profession and worship.

Indeed, the Court distinguishes between religious practices, including

the seemingly bizarre, which may not be regulated, and unacceptable
religious conduct which should be prevented despite claims that it
forms part of religious freedom.

In Ebralinag v. Division Superintendent of Schools,27 we validated the

exemption of Jehovah’s Witnesses from coerced participation in flag
ceremonies of public schools. Following the ruling in West Virginia v.
Barnette,28 we declared that unity and loyalty, the avowed objectives
of flag ceremonies, cannot be attained through coercion. Enforced
unity and loyalty is not a good that is constitutionally obtainable at
the expense of religious liberty. A desirable end cannot be promoted
by prohibited means.
The exemption from participation in flag ceremonies cannot be
applied to the tolerance of adulterous relationships by court
personnel in the name of religious freedom.

A clear and present danger of a substantive evil, destructive to public

morals, is a ground for the reasonable regulation of the free exercise
and enjoyment of religious profession.29 In addition to the
destruction of public morals, the substantive evil in this case is the
tearing down of morality, good order, and discipline in the judiciary.

Jurisprudence on immoral conduct of employees in the civil service

has been consistent. There is nothing in this case that warrants a
departure from precedents. We must not sanction or encourage illicit
or adulterous relations among government employees.

Soledad S. Escritor and Luciano D. Quilapio are devoted members of

Jehovah’s Witness. Exemptions granted under our Muslim Laws to
legitimate followers of Islam do not apply to them.30 The Court has
no legislative power to place Jehovah’s Witness in the same legal
category as Muslims.

In Bucatcat v. Bucatcat,31 it was held that conduct such as that

demonstrated by the respondent is immoral and deserving of
punishment. For such conduct, the respondent, another court
interpreter, was dismissed from the service. It was held:

Every employee of the judiciary should be an example of integrity,

uprightness and honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in the performance of
his official duties but in his personal and private dealings with other
people, to preserve the court’s good name and standing. It cannot be
overstressed that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat,
from the judge to the lowest of its personnel. Court employees have
been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve
the good name and integrity of courts of justice.
All those who work in the judiciary are bound by the most exacting
standards of ethics and morality to maintain the people’s faith in the
courts as dispensers of justice. In Liguid v. Camano,32 it was ruled:

Surely, respondent’s behavior of living openly and scandalously for

over two (2) decades with a woman not his wife and siring a child by
her is representative of the gross and serious misconduct penalized
by the ultimate penalty of dismissal under Section 22 (c), Rule XIV of
the Omnibus Rules Implementing Book IV of Executive Order No. 292
otherwise known as the Revised Administrative Code of 1987. As
defined, misconduct is a transgression of some established or definite
rule of action, more particularly, unlawful behavior or gross
negligence by the public officer. Respondent’s conduct is an example
of the kind of gross and flaunting misconduct that so quickly and
surely corrodes the respect for the courts without which government
cannot continue and that tears apart the bonds of our polity.

Earlier, in Navarro v. Navarro,33 the penalty of suspension was

imposed on a court employee for maintaining illicit relations with a
woman not his wife, thus:

Time and again we have stressed adherence to the principle that

public office is a public trust. All government officials and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. This constitutional
mandate should always be in the minds of all public servants to guide
them in their actions during their entire tenure in the government
service. The good of the service and the degree of morality which
every official and employee in the public service must observe, if
respect and confidence are to be maintained by the Government in the
enforcement of the law, demand that no untoward conduct on his
part, affecting morality, integrity and efficiency while holding office
should be left without proper and commensurate sanction, all
attendant circumstances taken into account.

The exacting standards of ethics and morality imposed upon court

judges and court employees are required to maintain the people’s
faith in the courts as dispensers of justice, and whose image is
mirrored by their actuations. As the Court eloquently stated through
Madame Justice Cecilia Muñoz-Palma:

[T]he image of the court of justice is necessarily mirrored in the

conduct, official or otherwise, of the men and woman who work
thereat, from the judge to the least and lowest of its personnel –
hence, it becomes the imperative sacred duty of each and everyone in
the court to maintain its good name and standing as a true temple of
justice.34

The high degree of moral uprightness that is demanded of employees

of the government entails many sacrifices that are peculiar to the civil
service. By aspiring to these positions, government employees are
deemed to have submitted themselves to greater scrutiny of their
conduct, all in the pursuit of a professional civil service. The Court
has repeatedly applied these principles in analogous cases.35

Immorality is punishable by suspension of six (6) months and one day

to one (1) year for the first offense and dismissal for the second
offense.36 Considering that respondent’s misconduct is in the nature
of a continuing offense, it must be treated as a first offense, and her
continued cohabitation with Luciano E. Quilapio, Jr. must be deemed
a second offense, which will warrant the penalty of dismissal.

ACCORDINGLY, I vote that respondent Soledad S. Escritor is

GUILTY of immorality and disgraceful conduct and should be
SUSPENDED for a period of Six (6) months and One day without pay,
with a warning that the continuance of her illicit cohabitation with
Luciano D. Quilapio, Jr. shall be deemed a second offense which shall
warrant the penalty of dismissal.

CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes
1Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235
SCRA 290.

2De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA

354.

3Revised Administrative Code, Book V, Title I, Subtitle A, Section

46 (b) (5).

4 Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).

5 Oxford Universal Dictionary, Vol. 2, p. 1280.

6 Id., p. 961.

7 Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v.

Villanueva, 116 Phil. 1208 (1962); Reyes v. Wong, A.M. No. 547,
29 January 1975, 63 SCRA 668.

8 Revised Penal Code, Art. 333.

9 Revised Penal Code, Art. 334.

10Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court,

Rule 110, Section 5.

11 Reyes v. Wong, supra.

12 Supra.

13 Lacuata v. Bautista, supra.

14 Supra.

15 339 Phil. 510 (1997).

16 A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.

17 220 Phil. 49 (1985).

18 E.O. 292, Sec. 46 (5).

19 Art. 334.

20 Rollo, Exhibits "1" and "2", pp. 14-15.

21 TSN, October 12, 2000, pp. 11-15.

22 Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.

23 Art. 334.

24 98 U.S. 145; 25 L.Ed. 244 (1879).

25 Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.

26 Supra.

27 G.R. No. 95770, 1 March 1993, 219 SCRA 256.

28 319 U.S. 624 (1943).

29 American Bible Society v. City of Manila, 101 Phil. 386 (1957).

30Sulu Islamic Association of Masjid Lambayong v. Malik, A.M.

No. MTJ-92-691, 10 September 1993, 226 SCRA 193.

31 380 Phil. 555 (2000).

32 A.M. No. RTJ-99-1509, 8 August 2002.

33 A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.

34 Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9

January 1992, 205 SCRA 21 and Sy v. Cruz, 321 Phil. 231 [1995].

35 Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001;

Alday v. Cruz, A.M. No. RTJ-00-1530, 14 March 2001, 354 SCRA
322.
 36 Civil Service Rules, Rule XIV, Section 23 (o).

DISSENTING OPINION

CARPIO, J.:

I maintain my dissent from the majority opinion as it now orders the

dismissal of the administrative complaint filed by petitioner
Alejandro Estrada against respondent Soledad S. Escritor.

The majority opinion relies heavily on Sherbert v. Verner1 in

upholding Escritor’s claim of exemption from administrative liability
grounded on her religious belief as a member of the Jehovah’s
Witnesses. This religious sect allows Escritor’s cohabitation with
Luciano D. Quilapio, Jr., who has a subsisting marriage with another
woman.
The compelling state interest test espoused in Sherbert has been
abandoned more than 15 years ago by the U.S. Supreme Court in the
Employment Division v. Smith2 cases. In the Smith cases, the U.S.
Supreme Court set aside the balancing test for religious minorities
laid down in Sherbert. Instead, the U.S. Supreme Court ruled
categorically in the Smith cases that the guarantee of religious liberty
as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose
religious practice conflict with those laws.

In the first Employment Division v. Smith (Smith I),3 petitioner

denied respondents’ application for unemployment compensation
benefits under an Oregon statute declaring ineligible for benefits
employees discharged for work-related misconduct. The misconduct
for which respondents were discharged from their jobs consisted of
their ingesting peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of their Native American Church. The Oregon
Supreme Court ruled that although the denials of benefits were
proper under Oregon law, Sherbert required the Oregon Supreme
Court to hold that the denials significantly burdened respondents’
religious freedom in violation of the Free Exercise Clause. The Oregon
Supreme Court did not attach significance to the fact that peyote
possession is a felony in Oregon.

The U.S. Supreme Court vacated the Oregon Supreme Court’s

judgment and ordered the remand of the case for a definitive ruling
on whether the religious use of peyote is legal in Oregon. The U.S.
Supreme Court deemed the legality or illegality of the questioned
conduct critical in its analysis of respondents’ claim for protection
under the Free Exercise Clause.

In Smith I, the U.S. Supreme Court distinguished respondents’ conduct

with that involved in Sherbert, thus:

x x x In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals

Comm’n of Fla.,4 the conduct that gave rise to the termination of
employment was perfectly legal; indeed, the Court assumed that it
was immune from state regulation.5 The results we reached in
Sherbert, Thomas and Hobbie might well have been different if the
employees had been discharged for engaging in criminal conduct. x x
x The protection that the First Amendment provides to "legitimate
claims to the free exercise of religion" does not extend to conduct that
a State has validly proscribed.6 (Emphasis supplied)

In the second Employment Division v. Smith (Smith II),7 the Oregon

Supreme Court held on remand that respondents’ religiously inspired
use of peyote fell within the prohibition of the Oregon statute
classifying peyote as a "controlled substance" and punishing its
possession as a felony. Although the Oregon Supreme Court noted
that the statute makes no exception for the sacramental use of peyote,
it still concluded that the prohibition was not valid under the Free
Exercise Clause.

The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S.
Supreme Court ruled that a claim of exemption from a generally
applicable law grounded on the right of free exercise could not be
evaluated under the compelling state interest test of Sherbert,
particularly where such law does not violate other constitutional
protections. The U.S. Supreme Court expressly declared:

x x x We have never held that an individual’s religious beliefs excuse

him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate. x x x8

xxxx

The only decisions in which we have held that the First Amendment
bars application of a neutral, generally applicable law to religiously
motivated action have involved not the Free Exercise Clause alone,
but the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press. x x x9

Respondents argue that even though exemption from generally

applicable criminal laws need not automatically be extended to
religiously motivated conduct, at least the claim for a religious
exemption must be evaluated under the balancing test set forth in
Sherbert v. Verner. x x x In recent years we have abstained from
applying the Sherbert test (outside the unemployment compensation
field) at all. x x x10

Even if we were 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. x x x11
(Emphasis supplied)

What the Smith cases teach us is that the compelling state interest
test in Sherbert is not the correct test in determining the legitimacy of
a claim of exemption from generally applicable, religion-neutral laws
that have the incidental effect of burdening particular religious
practice. Any such claim for exemption should be analyzed by
considering whether the conduct in question is one that "the State has
validly proscribed," irrespective of the sincerity or centrality of an
individual’s religious beliefs.

Here, Escritor is indisputably engaged in criminal conduct. Escritor’s

continued cohabitation with Quilapio is patently in violation of
Article 334 of the Revised Penal Code on concubinage. Article 334
makes no exception for religiously sanctioned cohabitation such as
that existing between Escritor and Quilapio. The majority opinion in
fact concedes that the present case involves a claim of exemption
"from a law of general applicability that inadvertently burdens
religious exercise."12 The majority opinion even concedes further that
the conduct in question is one "which Philippine law and
jurisprudence consider both immoral and illegal."13 And yet, the
majority opinion expediently brushes aside the illegality of Escritor’s
questioned conduct using the obsolete compelling state interest test in
Sherbert.

The majority opinion mentions two "opposing strains of

jurisprudence on the religion clauses" in U.S. history, namely,
separation or strict neutrality and benevolent neutrality or
accommodation. The majority opinion asserts that the framers of our
1935, 1973, and 1987 Constitutions intended to adopt a benevolent
neutrality approach in interpreting the religion clauses, i.e., the
Establishment and Free Exercise Clauses. The majority opinion then
reasons that in determining claims of exemption based on freedom of
religion, this Court must adopt the compelling state interest test laid
down by the U.S. Supreme Court in Sherbert, which according to the
majority, best exemplifies the benevolent neutrality approach. Hence,
even as the majority opinion acknowledges that the U.S. Supreme
Court in the Smith cases has abandoned the compelling state interest
test espoused in Sherbert, the majority opinion dismisses this
abandonment in its analysis of Escritor’s free exercise exemption
claim by simply labeling the Smith cases as exemplifying the strict
neutrality approach.

The majority opinion blatantly ignores that whatever theory may be

current in the United States — whether strict neutrality, benevolent
neutrality or some other theory — the undeniable fact is what is
clearly stated in Smith II:

x x x We have never held that an individual’s religious beliefs excuse

him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate. x x x14

Thus, from the 1879 case of Reynolds v. U.S.15 on the practice of

polygamy by Mormons to the 1988 and 1990 Smith cases on the use of
prohibited drugs by native American Indians, the U.S. Supreme Court
has consistently held that religious beliefs do not excuse any person
from liability for violation of a valid criminal law of general
application. The majority opinion simply refuses to face and accept
this reality.

The present case involves conduct that violates Article 334 of the
Revised Penal Code, a provision of law that no one challenges as
unconstitutional. Clearly, the theories invoked in the majority opinion
have no application to the present case based on an unbroken line of
U.S. Supreme Court decisions. In any event, we shall discuss for
academic purposes the merits of the theories advanced in the
majority opinion.
While the majority opinion only mentions separation and benevolent
neutrality, a close reading of the major U.S. Supreme Court opinions
specifically relating to the religion clauses presents three principal
theories at play, namely, (a) the strict separation or "no aid" theory,
(b) the governmental neutrality theory, and (c) the accommodation or
benevolent neutrality theory.16

The strict separation or "no aid" theory holds that the establishment
clause viewed in conjunction with the free exercise clause requires a
strict separation of church and state and that government can do
nothing which involves governmental support of religion or which is
favorable to the cultivation of religious interests.17 This theory found
its first expression in the case of Everson v. Board of Education,18
which espoused the "no aid" principle. Thus, the government cannot
by its programs, policies, or laws do anything to aid or support
religion or religious activities.19

Everson upheld the validity of a New Jersey statute authorizing bus

fare reimbursement to parents of parochial, as well as public school
children. Apparently, the strict interpretation or "no aid" theory
prohibits state benefits to a particular sect or sects only, but does not
prohibit benefits that accrue to all, including one or more sects.
Everson did not involve religiously motivated conduct that
constituted a violation of a criminal statute.

Under the governmental neutrality theory, the establishment clause

requires government to be neutral on religious matters.20 This theory
was articulated by Mr. Justice Clark in the case of Abington School
District v. Schempp,21 where he stated that what the Constitution
requires is "wholesome neutrality," i.e., laws and governmental
programs must be directed to secular ends and must have a primary
effect that neither advances nor inhibits religion.22 This test as stated
by Mr. Justice Clark embodies a theory of strict neutrality23 — thus,
the government may not use the religious factor as a basis for
classification with the purpose of advancing or inhibiting religion:
The place of religion in our society is an exalted one, achieved
through a long tradition of reliance on the home, the church and the
inviolable citadel of the individual heart and mind. We have come to
recognize through bitter experience that it is not within the power of
government to invade that citadel, whether its purpose or effect be to
aid or oppose, to advance or retard. In the relationship between man
and religion, the state is firmly committed to a position of
neutrality.24 (Italics supplied)

However, the concept of governmental neutrality can be interpreted

in various ways — to some, anything but total neutrality is
anathema; to others, "neutrality can only mean that government
policy must place religion at neither a special advantage nor a special
disadvantage."25

Schempp struck down a Pennsylvania law allowing the recitation of

the Lord’s Prayer and the reading of the Bible without comment in
public schools, although the recitation and reading were voluntary
and did not favor any sect. Schempp did not involve religiously
motivated conduct that constituted a violation of a criminal statute.

The accommodation theory provides that any limitation derived

from the establishment clause on cannot be rigidly applied so as to
preclude all aid to religion and that in some situations government
must, and in other situations may, accommodate its policies and laws
in the furtherance of religious freedom.26 The accommodation theory
found its first expression in Zorach v. Clauson.27 The U.S. Supreme
Court held in Zorach that a state could authorize an arrangement
whereby public school children could be released one hour a week for
religious instruction off the school premises. Zorach did not involve
religiously motivated conduct that constituted a violation of a
criminal statute.

In his book Religion and the Constitution published in 1964, Professor

Paul G. Kauper used the term "benevolent neutrality" in the following
context:
It would be a mistake, however, to suggest that the theory of
accommodation x x x is unrelated to other ideas and theories that
have been developed, notably the no-aid and neutrality concepts.
Rather, accommodation, instead of being viewed as a wholly
independent theory of interpretation, should be seen as a
modification of the no-aid or neutrality concepts. x x x

These ideas cannot be pressed to their absolute limit. Not only must
the no-aid or neutrality concept be subordinated to the necessities of
free exercise, but an area of legislative discretion must be allowed
where a state may choose to advance the cause of religious freedom
even at the expense of not being completely neutral. Indeed, this may
be described as the larger or benevolent neutrality.28 (Emphasis and
italics supplied)

Six years later, the U.S. Supreme Court used the term "benevolent
neutrality" for the first time in Walz v. Tax Commission.29 In Walz,
the U.S. Supreme Court sustained the constitutionality of tax
exemption of property used exclusively for religious purposes on the
basis of "benevolent neutrality," as follows:

The Court has struggled to find a neutral course between the two
Religion Clauses, both of which are cast in absolute terms, and either
of which, if expanded to a logical extreme, would tend to clash with
the other. x x x

xxxx

The course of constitutional neutrality in this area cannot be an

absolutely straight line; rigidity could well defeat the basic purpose of
these provisions, which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited. The general principle
deducible from the First Amendment and all that has been said by the
Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short
of those expressly proscribed governmental acts there is room for
play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.30 (Emphasis and italics supplied)

At issue in Walz was a provision in New York’s Constitution

authorizing property tax exemptions to religious organizations for
religious properties used solely for religious worship. Walz did not
involve religiously motivated conduct that constituted a violation of a
criminal statute.

The majority opinion cited the case of Walz in support of its assertion
that the framers of the 1935 Constitution intended to adopt the
benevolent neutrality approach in the interpretation of the religion
clauses, viz.:

x x x With the inclusion of the church property tax exemption in the

body of the 1935 Constitution and not merely as an ordinance
appended to the Constitution, the benevolent neutrality referred to in
the Walz case was given constitutional imprimatur under the regime
of the 1935 Constitution. x x x

The U.S. Supreme Court decided Walz only in 1970, more than three
decades after the adoption of our 1935 Constitution. It is certainly
doubtful whether the framers of our 1935 Constitution intended to
give "constitutional imprimatur" to a theory of interpretation
espoused in a case that was yet to be formulated. Moreover, when the
U.S. Supreme Court upheld the constitutionality of church property
tax exemption on the basis of "benevolent neutrality," it did so on
grounds that no particular religion is singled out for favorable
treatment, and partly on historical grounds that church tax
exemptions have been accepted without challenge in all states for
most of the nation’s history.31

The majority opinion vigorously argues the merits of adopting the

theory of accommodation in the interpretation of our Constitution's
religion clauses. However, the majority opinion fails to mention that
a distinction is often drawn by courts and commentators between
mandatory accommodation and permissive accommodation.
Mandatory accommodation is exemplified by the key idea in Sherbert
that exemptions from generally applicable laws are required by force
of the Free Exercise Clause,32 which the majority opinion adheres to
in granting Escritor’s claim of free exercise exemption.

Permissive accommodation refers to exercises of political discretion

that benefit religion, and that the Constitution neither requires nor
forbids.33 The U.S. Supreme Court recognized in Smith II that
although the Free Exercise Clause did not require permissive
accommodation, the political branches could shield religious exercise
through legislative accommodation,34 for example, by making an
exception to proscriptive drug laws for sacramental peyote use.

Professor Michael W. McConnell, whose views on the accommodation

theory were frequently quoted by the majority opinion, defends
mandatory accommodation.35 However, Prof. Kauper, likewise an
accommodationist, favors permissive accommodation, stating that
"as a general proposition, no person should be allowed to claim that
because of his religion he is entitled as a matter of constitutional
right to claim an exemption from general regulatory and tax laws."36
Prof. Kauper further explains his position that religious liberty
furnishes no ground for claiming immunity to laws which place
reasonable restrictions on overt conduct in the furtherance of public
interests protected by the state’s police power,37 as follows:

Where the issue is not the use of governmental power to sanction

religious belief and practices by some positive program but the
granting of exemption on religious grounds from laws of general
operation, what determines whether the government is required, or
permitted, to make the accommodation? While a state may
appropriately grant exemptions from its general police and tax laws,
it should not be constitutionally required to do so unless this
immunity can properly be claimed as part of the constitutional
guarantee of religious liberty. Thus, exemptions from property tax
and military service, health and labor laws should be at the discretion
of government. Whether Sherbert carried the principle of required
accommodation too far is debatable. It may well be that the court
here undertook a determination of questions better left to the
legislature and that in this area, x x x the policy of granting
exemptions on religious grounds should be left to legislative
discretion.38 (Emphasis supplied)

It is true that a test needs to be applied by the Court in determining

the validity of a free exercise claim of exemption as made here by
Escritor. The compelling state interest test in Sherbert pushes the
limits of religious liberty too far, and so too does the majority opinion
insofar as it grants Escritor immunity to a law of general operation
on the ground of religious liberty. Making a distinction between
permissive accommodation and mandatory accommodation is more
critically important in analyzing free exercise exemption claims. Such
limitations forces the Court to confront how far it can validly set the
limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive
American jurisprudence (such as the Smith cases) just because it does
not espouse the theory selected.

Theories are only guideposts and "there is no magic formula to settle

all disputes between religion and the law, no legal pill to ease the pain
of perceived injustice and religious oppression, and certainly no
perfect theory to bind judges or legislators."39 The Smith cases,
particularly Smith II, cannot be so easily dismissed by the majority
opinion and labeled as "best exemplifying the strict neutrality
approach." The Smith Court affirmed the power and the discretion of
legislatures to enact statutory protection beyond what the Free
Exercise Clause required. The U.S. Supreme Court indicated in Smith
II that legislatures could enact accommodations to protect religion
beyond the Free Exercise Clause minimum without "establishing"
religion and thereby running afoul of the Establishment Clause.40
What the Smith cases espouse, therefore, is not really the strict
neutrality approach, but more of permissive accommodation.41

Even assuming that the theory of benevolent neutrality and the

compelling state interest test are applicable, the State has a
compelling interest in exacting from everyone connected with the
dispensation of justice, from the highest magistrate to the lowest of
its personnel, the highest standard of conduct. This Court has
repeatedly held that "the image of a court of justice is necessarily
mirrored in the conduct, official or otherwise, of the men and women
who work thereat."42 While arguably not constituting "disgraceful
and immoral conduct,"43 Escritor’s cohabitation with Quilapio is a
patent violation of our penal law on concubinage that vitiates "the
integrity of court personnel and the court itself."44 The public’s faith
and confidence in the administration of justice would certainly be
eroded and undermined if tolerated within the judiciary’s ranks are
court employees blatantly violating our criminal laws.

I therefore maintain that Escritor’s admitted cohabitation with

Quilapio is sufficient basis to hold her guilty of conduct prejudicial to
the best interest of the service and to impose upon her the
appropriate penalty.

Equally compelling is the State’s interest in the preservation of

marriage and the family as basic social institutions,45 which is
ultimately the public policy underlying Articles 334 and 349 of the
Revised Penal Code. This Court has recognized in countless cases that
marriage and the family are basic social institutions in which the
State is vitally interested46 and in the protection of which the State
has the strongest interest.47 In Domingo v. Court of Appeals,48 the
Court stressed that:

Marriage, a sacrosanct institution, declared by the Constitution as an

"inviolable social institution, is the foundation of the family;" as such,
it "shall be protected by the State." x x x So crucial are marriage and
the family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
stipulation.

The same sentiment has been expressed in Article 149 of the Family
Code:

The family, being the foundation of the nation, is a basic social

institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect. (Emphasis supplied)

And yet, notwithstanding the foregoing compelling state interests at

stake, the majority all too willingly and easily places them in jeopardy
by upholding Escritor’s claim of exemption. On this point, Professor
William P. Marshall aptly observes that one of the problems involved
in free exercise exemption analysis is that it requires the Court to
weigh the state interest against the interest of the narrower class
comprised only of those seeking exemption. On the other hand, in
other doctrinal areas, the Court balances the state interest in the
regulation at issue against the interests of the regulated class taken
as a whole. Prof. Marshall persuasively argues that this leads to both
unpredictability in the exemption balancing process and potential
inconsistency in result "as each regulation may be subject to limitless
challenges based upon the peculiar identity of the challenger."49
Moreover, Prof. Marshall notes that the exemption balancing process
necessarily leads to underestimating the strength of the
countervailing state interest.50 Indeed, the state interest in a
challenged regulation will seldom be seriously threatened if only a
few persons seek exemption from it.51

In dismissing the administrative complaint against Escritor, the

majority opinion effectively condones and accords a semblance of
legitimacy to her patently unlawful cohabitation with Quilapio, while
in the eyes of the law, Quilapio remains married to his legal wife. This
condonation in fact facilitates the circumvention by Escritor and
Quilapio of Articles 334 and 349 of the Revised Penal Code on
concubinage and bigamy.52 Without having his first marriage legally
dissolved, Quilapio can now continue to cohabit with Escritor with
impunity. How do we reconcile this scenario with the Constitution’s
emphatic declaration that marriage is "an inviolable social
institution"?53

By choosing to turn a blind eye to Escritor’s criminal conduct, the

majority is in fact recognizing and according judicial imprimatur to a
practice, custom or agreement that subverts marriage, albeit one that
is sanctioned by a particular religious sect. The majority’s opinion
here bestows "a credibility and legitimacy upon the religious belief in
question simply by its being judicially recognized as constitutionally
sacrosanct."54 This is another problem that arises in free exercise
exemption analysis — the benevolent neutrality approach fails to take
into account the role that equality plays in free exercise theory.55
While the text of the Free Exercise Clause is consistent with
protecting religion from discrimination, it does not compel
discrimination in favor of religion.56 However, the benevolent
neutrality approach promotes its own form of inequality when under
it, exemptions are granted only to religious claimants like Escritor,
whose religiously-sanctioned but otherwise illegal conjugal
arrangement with Quilapio acquires a veneer of "special judicial
reinforcement."57

Catholics may secure a church annulment of their marriage. A church

annulment does not exempt Catholics from criminal or
administrative liability if they cohabit with someone other than their
legal spouse before their marriage is finally annulled by a civil court.
Catholics cannot legally justify before civil courts such act of
concubinage on the ground that the act conforms to their religious
beliefs because they have a secured a church annulment which freed
them from their marital vows. If this Court condones Escritor’s act of
concubinage on religious grounds, then it will have to condone acts of
concubinage by Catholics who have secured church annulment of
their marriage even without a final annulment from a civil court. The
majority pushes their opinion on a slippery slope.

It may well be asked how, under a well-meaning but overly solicitous

grant of exemption based on the Freedom of Exercise Clause of our
Constitution, an individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is what the
majority opinion has effectually granted Escritor in dismissing the
administrative complaint against her. The accommodation of
Escritor’s religious beliefs under the benevolent neutrality approach
is too high a price to pay when weighed against its prejudicial effect
on the sound administration of justice and the protection of marriage
and the family as basic social institutions.

Finally, there is even no claim here that concubinage is central to the

religious belief of the Jehovah’s Witnesses, or even a part of the
religious belief of the Jehovah’s Witnesses. Escritor merely claims
that her live-in arrangement with a married man is, in the words of
the majority opinion, "in conformity with her and her partner’s
religious belief." This case is not an issue of a statute colliding with
centrally or vitally held beliefs of a religious denomination, as in the
case of Sherbert. This case is about a religious cover for an obviously
criminal act.

In Sherbert, the conduct in question was the refusal of a member of

the Seventh Day Adventist Church to work on the Sabbath Day or on
Saturdays, which prevented prospective employers from giving
petitioner in Sherbert employment. Petitioner in Sherbert then
claimed unemployment benefits, which the State denied because the
law withheld benefits to those who failed without good cause to
accept available suitable work. In Sherbert, the questioned conduct —
the refusal to work on Saturdays — was part of the religious tenets of
the Seventh Day Adventists. The questioned conduct in Sherbert was
not a criminal conduct, unlike the questioned conduct of Escritor in
this case. Clearly, even assuming for the sake of argument that
Sherbert remains good law in the United States and thus has some
persuasive force here, still Sherbert is patently inapplicable to the
present case.

The positive law and the institutions of government are concerned

not with correct belief but with overt conduct related to good order,
peace, justice, freedom, and community welfare.58 Hence, while there
are times when government 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.59 For indeed, even religious liberty
has its limits. And certainly, "there is a price to be paid, even by
religion, for living in a constitutional democracy."60
Certainly, observance of provisions of the Revised Penal Code, whose
validity or constitutionality are not even challenged, is a price that all
religions in the Philippines must willingly pay for the sake of good
order and peace in the community. To hold otherwise would, as aptly
stated in Reynolds v. U.S.,61 "make the professed doctrines of 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 concubinage, tomorrow bigamy, will enjoy
protection from criminal sanction under the new doctrine foisted by
the majority opinion.

Accordingly, I vote to suspend respondent Soledad S. Escritor for six

months and one day without pay for conduct prejudicial to the best
interest of the service. However, the suspension shall be lifted
immediately upon Escritor’s manifestation to this Court that she has
ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent
Escritor is warned that her continued cohabitation with Quilapio,
during or after her suspension and while Quilapio’s marriage with his
legal wife still subsists, shall merit the penalty of dismissal from the
service.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1 374 U.S. 398 (1963).

2 485 U.S. 660 (1988) and 494 U.S. 872 (1990).

3 485 U.S. 660 (1988).

4 Citations omitted.
5In Sherbert, the appellant was discharged because she would
not work on Saturday, the Sabbath Day of her faith.

6 Employment Division v. Smith, supra note 3 at 670-671.

7 494 U.S. 872 (1990).

8 Id. at 878-879.

9 Id. at 881.

10 Id. at 882-883.

11 Id at 884.

12 Estrada v. Escritor, 455 Phil. 574 (2003).

13 Id. at 593.

14 Employment Division v. Smith, supra note 7 at 878-879.

15 98 U.S. 145 (1878).

16Kauper, P., Religion and the Constitution 59 (1964). See also

Abraham, H. and Perry, B., Freedom and the Court: Civil Rights
and Liberties in the United States 270 (7th ed., 1998).

17 Id.

18 330 U.S. 1 (1947).

19 Kauper, op. cit., at 61.

20 Abraham, H. and Perry, B., Freedom and the Court: Civil

Rights and Liberties in the United States 272-73 (7th ed., 1998).

21 374 U.S. 203 (1963).

22 Kauper, op. cit., at 64.

23 Id. at 65.

24 Abington School District v. Schempp, supra note 15 at 226.

25 Abraham, H. and Perry, B., op. cit., at 280.

26 Kauper, op. cit., at 59.

27 343 U.S. 306 (1952).

28 Id. at 75.

29 397 U.S. 664 (1970).

30 Id. at 668-669.

31 Abraham, H. and Perry, B., op. cit., at Table 6.3.

32Ira C. Lupu, The Trouble with Accommodation, 60(3) Geo.

Wash. L. Rev. 743, 751 (1992).

33 Id.

34 Anne Y. Chiu, When Prisoners Are Weary and Their Religious

Exercise Burdened, RLUIPA Provides Some Rest for their Souls,
79 Wash. L. Rev. 999 (2004). In this article, Chiu defines
"legislative accommodation" as a statute enacted by the
legislature to lift a neutral, generally applicable burden on
religion imposed by the government.

35Michael W. McConnell, Accommodation of Religion: An Update

and a Response to the Critics, 60(3) Geo. Wash. L. Rev. 685, 687-
688 (1992).

36 Kauper, op. cit., at 17.

37 Id. at 38.

38 Id. at 78-79.
39 Weber, P., Equal Separation: Understanding the Religion
Clauses of the First Amendment 154 (1990).

40 Anne Y. Chiu, op. cit.

41 Ira C. Lupu, op. cit., at 751, note 33.

42 Villaraza v. Atienza, 195 Phil. 383, 390 (1981).

43See Dissenting Opinion, J. Carpio in Escritor v. Estrada, op. cit.,

see note 12.

44 Ganaden v. Bolasco, 64 SCRA 50, 53 (1975).

45Section 2, Article XV and Section 12, Article II, 1987

Constitution.

46Goitia v. Campos-Rueda, 35 Phil. 252 (1919); Brown v. Yambao,

102 Phil. 168, 172 (1957).

47Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and 96715, 203
SCRA 750,761 (1991).

48 G.R. No. 104818, 226 SCRA 572, 584 (1993).

49William P. Marshall, In Defense of Smith and Free Exercise

Revisionism, 58 U. Chi. L. Rev. 308, 311-312 (1991).

50 Id.

51 Id.

52 Bigamy is an illegal marriage by contracting a second or

subsequent marriage before the first marriage has been legally
dissolved. It is interesting to note that, while Escritor and
Quilapio both executed a "Declaration of Pledging Faithfulness,"
such execution was unaccompanied by any religious ceremony
officiated by a presiding minister of the Jehovah’s Witnesses.
Precisely, such ceremony would have constituted a violation of
 Article 352 of the Revised Penal Code prohibiting the
performance of an illegal marriage ceremony by priests or
ministers of any religious denomination or sect.

53 Section 2, Article XV, 1987 Constitution.

54 William P. Marshall, op. cit., at 322-23.

55 Id. at 319.

56 Id. at 325.

57 Id.

58 Kauper, op. cit., at 83.

59 Weber, P., op. cit., at 150.

60 Id. at 47.

61 98 U.S. 145, 167 (1878).

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