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Evas notes on Estrada v.

Escritor I

discussion of Freedom of Religion history, doctrines, and standards 2

Religion Clauses in the United States: Concept, Jurisprudence, Standards

United States v. Seeger expanded the definition of religion to include even non-theistic beliefs. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. 1. There must be belief in God or some parallel belief that occupies a central place in the believer's life. 2. The religion must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. 3. A demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief. 4. There must be some associational ties.

A. Free Exercise Clause

Reynolds v. United States (1878) o US Court first interpreted the Free Exercise Clause. o Cited Jefferson's Bill Establishing Religious Freedom which, according to the Court, declares "the true distinction between what properly belongs to the Church and what to the State. o Used what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. 1. Belief-action test o The state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. o As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem. o The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself. o Proved unsatisfactory since regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the government's non-religious regulatory interest so long as the government is proscribing action and not belief. 2. Deliberate-Inadvertent distinction o Distinction is made between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and government's inadvertent interference with religion in pursuing some secular objective. o Introduced in Minersville School District v. Gobitis (1940) o Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state's non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. o Gobitis was overturned in West Virginia v Barnette (1943) which held that even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. 3. Two-part balancing test
1 2

455 Phil. 411; 408 SCRA 1 (2003); In view of Dean Leonens repeated reference on this case. With focus on points not fully discussed in Estrada v. Escritor II (2006), the assigned reading

o Established in Braunfeld v. Brown (1961). o Since the burden was the indirect effect of a law with a secular purpose, it would violate the
Free Exercise Clause only if there were alternative ways of achieving the state's interest

o The two-part balancing test of validity:

1. plaintiff to show that the regulation placed a real burden on his religious exercise 2. burden will only be upheld if state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices 4. Strict Scrutiny and Compelling State Interest Test o First applied in Sherbert v. Verner (1963). o This test was similar to the two-part balancing test but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. o Sherbert also firmly established the exemption doctrine. o Significantly increased the degree of protection afforded to religiously motivated conduct; established a strong presumption in favor of the free exercise of religion. o Upheld in Wisconsin v. Yoder. 5. Employment Division, Oregon Department of Human Resources v. Smith o Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. o The Court went back to the Reynolds and Gobitis doctrine in Smith. o The Court's standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. o The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence. *It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin v. Yoder.

B. Establishment Clause
Everson v. Board of Education (1947) o The US Supreme Court's first encounter with the Establishment Clause. o Court adopted Jefferson's metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause. o Recall: phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States. Lemon test o Laid down in Lemon v. Kurtzman (1971). o The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. 1. The statute must have a secular legislative purpose. 2. Its primary or principal effect must be one that neither advances nor inhibits religion. 3. The statute must not foster 'an excessive entanglement with religion.' McGowan v. Maryland (1961)

o Illustrated that in the area of government displays or affirmations of belief, the Court has given
leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. Marsh v. Chambers (1983) o The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs

C. Strict Neutrality v. Benevolent Neutrality (see Estrada v. Escritor II)

Religion Clauses in the Philippines

A. History
o o o There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the short-lived Philippine Republic. Every organic act of the Philippines [President McKinley Instructions to the Second Philippine Commission, Philippine Bill of 1902, Jones Law of 1916, Tydings-McDuffie Law of 1934] contained a provision on freedom of religion. 1935 Constitution Bill of Rights, Article IV, Section 7: No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. 1973 Constitution Bill of Rights in Article IV, Section 8: 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.

o o

o 1973 Constitution added in General Provisions in Article XV Section 15 that "(t)he separation of
o church and state shall be inviolable." the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.

B. Jurisprudence o In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic.

o Aglipay v. Ruiz defined "religion" as a "profession of faith to an active power that binds and
elevates man to his Creator."

1. Free Exercise Clause o The Free Exercise Clause principally guarantees voluntarism.
American Bible Society v. City of Manila (1957) o Illustrated that religious speech comes within the pale of the Free Exercise Clause. o This was the Courts maiden affirmation of the clear and present danger rule in the religious freedom area [although it was not clear if the Court applied the test in the case] where it should be identified that: 1. there is a secular value the government regulation sought to protect

2. the religious speech posed a clear and present danger to this or other secular value protected by government 3. there was danger but it could not be characterized as clear and present. Gerona v. Secretary of Education (1957) o Held that The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought; Dean: applied belief-action test. o Involves conduct expressive of religious belief colliding with a rule prescribed in accordance with law. o Laid down the following religious freedom doctrines: 1. it is incumbent upon the Court to determine whether a certain ritual is religious or not; 2. religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability incidentally burdens the exercise of one's religion, one's r.ight to religious freedom cannot justify exemption from compliance with the law Victoriano v. Elizalde Rope Unions (1974) o Court mentioned several tests in determining when religious freedom may be validly limited. 1. "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom 2. religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state's secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden 3. "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes [this test was employed although Court found it is not applicable in the case] o Although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Ebranilag v. Th Division Superintendent of Schools (1993) o Oveturned the Gerona ruling. o Used the grave and imminent danger" test laid down in Justice Teehankee's dissent in German v. Barangan: The sole justification for a prior restraint or limitation on the exercise of religious freedom 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. Iglesia ni Cristo . CA, et al. (1996) o The Court applied in unequivocal terms the "clear and present danger" test to religious speech. o Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial" o Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. * The Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.

2. Establishment Clause
Values sought to be protected by the Establishment Clause 1. volunteerism a. personal dimension -- it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. b. social dimension -- it means that the "growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. 2. insulation of the political process from interfaith dissension Aglipay v. Ruiz (1937) o Neutrality principle was applied. o The Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Garces v. Estenzo (1981) o The Court declared that not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Pamil v. Teleron, et al. (1978) o In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. o 7 members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. o The prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Fonacier v. CA (1985) o The Courting, citing Watson v. Jones, declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association is that the rules for resolving such controversies should be those of any voluntary association.

Free Exercise Clause vis--vis Establishment Clause

o In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application.

o One set of facts, for instance, can be differently viewed from the Establishment Clause
o perspective and the Free Exercise Clause point of view, and decided in opposite directions. (e.g. Pamil v. Teleron) Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. Tension also exists when a law of general application provides exemption in order to uphold free exercise.

o In some cases, a practice is obviously violative of the Establishment Clause but the Court
o nevertheless upholds it. How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge.