U.S.
Supreme Court
Cantwell v. Connecticut, 310 U.S. 296 (1940)
Cantwell v. Connecticut
No. 632
Argued March 29, 1940
Decided May 20, 1940
310 U.S. 296
APPEAL FROM AND CERTIORARI TO THE SUPREME COURT
OF ERRORS OF CONNECTICUT
Syllabus
1. The fundamental concept of liberty embodied in the Fourteenth
Amendment embraces the liberties guaranteed by the First
Amendment. P. 310 U. S. 303.
2. The enactment by a State of any law respecting an
establishment of religion or prohibiting the free exercise thereof is
forbidden by the Fourteenth Amendment. P. 310 U. S. 303.
3. Under the constitutional guaranty, freedom of conscience and of
religious belief is absolute; although freedom to act in the exercise
of religion is subject to regulation for the protection of society. Such
regulation, however, in attaining a permissible end, must not
unduly infringe the protected freedom. Pp.310 U. S. 303-304.
4. A state statute which forbids any person to solicit money or
valuables for any alleged religious cause, unless a certificate
therefor shall first have been procured from a designated official,
who is required to determine whether such cause is a religious one
and who may withhold his approval if he determines that it is not, is
a previous restraint upon the free exercise of religion, and a
CONSTI 2 CASES Free Exercise of Religion
deprivation of liberty without due process of law in violation of the
Fourteenth Amendment. P. 310 U. S. 304.
So held as it was applied to persons engaged in distributing
literature purporting to be religious, and soliciting contributions to
be used for the publication of such literature.
A State constitutionally may, by general and nondiscriminatory
legislation, regulate the time, place and manner of soliciting upon
its streets, and of holding meetings thereon, and may in other
respects safeguard the peace, good order and comfort of the
community.
Page 310 U. S. 297
The statute here, however, is not such a regulation. If a certificate
is issued, solicitation is permitted without other restriction; but if a
certificate is denied, solicitation is altogether prohibited.
5. The fact that arbitrary or capricious action by the licensing
officer is subject to judicial review cannot validate the statute. A
previous restraint by judicial decision after trial is as obnoxious
under the Constitution as restraint by administrative action. P. 310
U. S. 306.
6. The common law offense of breach of the peace may be
committed not only by acts of violence, but also by acts and words
likely to produce violence in others. P. 310 U. S. 308.
7. Defendant, while on a public street endeavoring to interest
passerby in the purchase of publications, or in making
contributions, in the interest of what he believed to be true religion,
induced individuals to listen to the playing of a phonograph record
describing the publications. The record contained a verbal attack
upon the religious denomination of which the listeners were
members, provoking their indignation and a desire on their part to
strike the defendant, who thereupon picked up his books and
phonograph and went on his way. There was no showing that
defendant's deportment was noisy, truculent, overbearing, or
offensive; nor was it claimed that he intended to insult or affront
the listeners by playing the record; nor was it shown that the sound
Page 1 of 267
of the phonograph disturbed persons living nearby, drew a crowd,
or impeded traffic.
Held, that defendant's conviction of the common law offense of
breach of the peace was violative of constitutional guarantees of
religious liberty and freedom of speech. Pp. 310 U. S. 307 et seq.
126 Conn. 1; 8 A.2d 533, reversed.
APPEAL from, and certiorari (309 U.S. 626) to review, a judgment
which sustained the conviction of all the defendants on one count
of an information and the conviction of one of the defendants on
another count. The convictions were challenged as denying the
constitutional rights of the defendants.
Page 310 U. S. 300
MR. JUSTICE ROBERTS delivered the opinion of the Court.
Newton Cantwell and his two sons, Jesse and Russell, members of a
group known as Jehovah's Witnesses and claiming to be ordained
ministers, were arrested in New Haven, Connecticut, and each was
charged by information in five counts, with statutory and common
law offenses. After trial in the Court of Common Pleas of New Haven
County, each of them was convicted on the third count, which
charged a violation of § 294 of the General Statutes of Connecticut,
[Footnote 1] and on the fifth count, which charged commission of
the common law offense of inciting a breach of the peace. On
appeal to the Supreme Court, the conviction of all three on the third
count was affirmed. The conviction of Jesse Cantwell on the fifth
count was also affirmed, but the conviction of Newton and Russell
on that count was reversed, and a new trial ordered as to them.
[Footnote 2]
By demurrers to the information, by requests for rulings of law at
the trial, and by their assignments of error in the State Supreme
Court, the appellants pressed the contention that the statute under
which the third count was drawn was offensive to the due process
clause of the Fourteenth Amendment because, on its face and as
construed and applied, it denied them freedom of speech and
prohibited their free exercise of religion. In like manner,
CONSTI 2 CASES Free Exercise of Religion
Page 310 U. S. 301
they made the point that they could not be found guilty on the fifth
count without violation of the Amendment.
We have jurisdiction on appeal from the judgments on the third
count, as there was drawn in question the validity of a state statute
under the Federal Constitution and the decision was in favor of
validity. Since the conviction on the fifth count was not based upon
a statute, but presents a substantial question under the Federal
Constitution, we granted the writ of certiorari in respect of it.
The facts adduced to sustain the convictions on the third count
follow. On the day of their arrest, the appellants were engaged in
going singly from house to house on Cassius Street in New Haven.
They were individually equipped with a bag containing books and
pamphlets on religious subjects, a portable phonograph, and a set
of records, each of which, when played, introduced, and was a
description of, one of the books. Each appellant asked the person
who responded to his call for permission to play one of the records.
If permission was granted, he asked the person to buy the book
described, and, upon refusal, he solicited such contribution towards
the publication of the pamphlets as the listener was willing to
make. If a contribution was received, a pamphlet was delivered
upon condition that it would be read.
Cassius Street is in a thickly populated neighborhood where about
ninety percent of the residents are Roman Catholics. A phonograph
record, describing a book entitled "Enemies," included an attack on
the Catholic religion. None of the persons interviewed were
members of Jehovah's Witnesses.
The statute under which the appellants were charged provides:
"No person shall solicit money, services, subscriptions or any
valuable thing for any alleged religious, charitable
Page 310 U. S. 302
or philanthropic cause, from other than a member of the
organization for whose benefit such person is soliciting or within
Page 2 of 267
the county in which such person or organization is located unless
such cause shall have been approved by the secretary of the public
welfare council. Upon application of any person in behalf of such
cause, the secretary shall determine whether such cause is a
religious one or is a bona fide object of charity or philanthropy and
conforms to reasonable standards of efficiency and integrity, and, if
he shall so find, shall approve the same and issue to the authority
in charge a certificate to that effect. Such certificate may be
revoked at any time. Any person violating any provision of this
section shall be fined not more than one hundred dollars or
imprisoned not more than thirty days or both."
The appellants claimed that their activities were not within the
statute, but consisted only of distribution of books, pamphlets, and
periodicals. The State Supreme Court construed the finding of the
trial court to be that,
"in addition to the sale of the books and the distribution of the
pamphlets, the defendants were also soliciting contributions or
donations of money for an alleged religious cause, and thereby
came within the purview of the statute."
It overruled the contention that the Act, as applied to the
appellants, offends the due process clause of the Fourteenth
Amendment because it abridges or denies religious freedom and
liberty of speech and press. The court stated that it was the
solicitation that brought the appellants within the sweep of the Act,
and not their other activities in the dissemination of literature. It
declared the legislation constitutional as an effort by the State to
protect the public against fraud and imposition in the solicitation of
funds for what purported to be religious, charitable, or philanthropic
causes.
The facts which were held to support the conviction of Jesse
Cantwell on the fifth count were that he stopped
Page 310 U. S. 303
two men in the street, asked, and received, permission to play a
phonograph record, and played the record "Enemies," which
attacked the religion and church of the two men, who were
Catholics. Both were incensed by the contents of the record, and
CONSTI 2 CASES Free Exercise of Religion
were tempted to strike Cantwell unless he went away. On being told
to be on his way, he left their presence. There was no evidence that
he was personally offensive or entered into any argument with
those he interviewed.
The court held that the charge was not assault or breach of the
peace or threats on Cantwell's part, but invoking or inciting others
to breach of the peace, and that the facts supported the conviction
of that offense.
First. We hold that the statute, a construed and applied to the
appellants, deprives them of their liberty without due process of
law in contravention of the Fourteenth Amendment. The
fundamental concept of liberty embodied in that Amendment
embraces the liberties guaranteed by the First Amendment.
[Footnote 3] The First Amendment declares that Congress shall
make no law respecting an establishment of religion or prohibiting
the free exercise thereof. The Fourteenth Amendment has rendered
the legislatures of the states as incompetent as Congress to enact
such laws. The constitutional inhibition of legislation on the subject
of religion has a double aspect. On the one hand, it forestalls
compulsion by law of the acceptance of any creed or the practice of
any form of worship. Freedom of conscience and freedom to adhere
to such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus,
the Amendment embraces two concepts -- freedom to believe and
freedom to act. The first is absolute, but, in the nature of things,
the
Page 310 U. S. 304
second cannot be. Conduct remains subject to regulation for the
protection of society. [Footnote 4] The freedom to act must have
appropriate definition to preserve the enforcement of that
protection. In every case, the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom. No one would contest the proposition that a
State may not, by statute, wholly deny the right to preach or to
disseminate religious views. Plainly, such a previous and absolute
restraint would violate the terms of the guarantee. [Footnote 5] It is
equally clear that a State may, by general and nondiscriminatory
Page 3 of 267
legislation, regulate the times, the places, and the manner of
soliciting upon its streets, and of holding meetings thereon, and
may in other respects safeguard the peace, good order, and
comfort of the community without unconstitutionally invading the
liberties protected by the Fourteenth Amendment. The appellants
are right in their insistence that the Act in question is not such a
regulation. If a certificate is procured, solicitation is permitted
without restraint, but, in the absence of a certificate, solicitation is
altogether prohibited.
The appellants urge that to require them to obtain a certificate as a
condition of soliciting support for their views amounts to a prior
restraint on the exercise of their religion within the meaning of the
Constitution. The State insists that the Act, as construed by the
Supreme Court of Connecticut, imposes no previous restraint upon
the dissemination of religious views or teaching, but merely
safeguards against the perpetration of frauds under the cloak of
religion. Conceding that this is so, the question remains whether
the method adopted by Connecticut to
Page 310 U. S. 305
that end transgresses the liberty safeguarded by the Constitution.
The general regulation, in the public interest, of solicitation, which
does not involve any religious test and does not unreasonably
obstruct or delay the collection of funds is not open to any
constitutional objection, even though the collection be for a
religious purpose. Such regulation would not constitute a prohibited
previous restraint on the free exercise of religion or interpose an
inadmissible obstacle to its exercise.
It will be noted, however, that the Act requires an application to the
secretary of the public welfare council of the State; that he is
empowered to determine whether the cause is a religious one, and
that the issue of a certificate depends upon his affirmative action. If
he finds that the cause is not that of religion, to solicit for it
becomes a crime. He is not to issue a certificate as a matter of
course. His decision to issue or refuse it involves appraisal of facts,
the exercise of judgment, and the formation of an opinion. He is
authorized to withhold his approval if he determines that the cause
is not a religious one. Such a censorship of religion as the means of
CONSTI 2 CASES Free Exercise of Religion
determining its right to survive is a denial of liberty protected by
the First Amendment and included in the liberty which is within the
protection of the Fourteenth.
The State asserts that, if the licensing officer acts arbitrarily,
capriciously, or corruptly, his action is subject to judicial correction.
Counsel refer to the rule prevailing in Connecticut that the decision
of a commission or an administrative official will be reviewed upon
a claim that
"it works material damage to individual or corporate rights, or
invades or threatens such rights, or is so unreasonable as to justify
judicial intervention, or is not consonant with justice, or that a legal
duty has not
Page 310 U. S. 306
been performed. [Footnote 6]"
It is suggested that the statute is to be read as requiring the officer
to issue a certificate unless the cause in question is clearly not a
religious one, and that, if he violates his duty, his action will be
corrected by a court.
To this suggestion there are several sufficient answers. The line
between a discretionary and a ministerial act is not always easy to
mark, and the statute has not been construed by the state court to
impose a mere ministerial duty on the secretary of the welfare
council. Upon his decision as to the nature of the cause the right to
solicit depends. Moreover, the availability of a judicial remedy for
abuses in the system of licensing still leaves that system one of
previous restraint which, in the field of free speech and press, we
have held inadmissible. A statute authorizing previous restraint
upon the exercise of the guaranteed freedom by judicial decision
after trial is as obnoxious to the Constitution as one providing for
like restraint by administrative action. [Footnote 7]
Nothing we have said is intended even remotely to imply that,
under the cloak of religion, persons may, with impunity, commit
frauds upon the public. Certainly penal laws are available to punish
such conduct. Even the exercise of religion may be at some slight
Page 4 of 267
inconvenience in order that the State may protect its citizens from
injury. Without doubt, a State may protect its citizens from
fraudulent solicitation by requiring a stranger in the community,
before permitting him publicly to solicit funds for any purpose, to
establish his identity and his authority to act for the cause which he
purports to represent. [Footnote 8] The State is likewise free to
regulate the time
Page 310 U. S. 307
and manner of solicitation generally, in the interest of public safety,
peace, comfort or convenience. But to condition the solicitation of
aid for the perpetuation of religious views or systems upon a
license, the grant of which rests in the exercise of a determination
by state authority as to what is a religious cause, is to lay a
forbidden burden upon the exercise of liberty protected by the
Constitution.
Second. We hold that, in the circumstances disclosed, the
conviction of Jesse Cantwell on the fifth count must be set aside.
Decision as to the lawfulness of the conviction demands the
weighing of two conflicting interests. The fundamental law declares
the interest of the United States that the free exercise of religion be
not prohibited and that freedom to communicate information and
opinion be not abridged. The State of Connecticut has an obvious
interest in the preservation and protection of peace and good order
within her borders. We must determine whether the alleged
protection of the State's interest, means to which end would, in the
absence of limitation by the Federal Constitution, lie wholly within
the State's discretion, has been pressed, in this instance, to a point
where it has come into fatal collision with the overriding interest
protected by the federal compact.
Conviction on the fifth count was not pursuant to a statute evincing
a legislative judgment that street discussion of religious affairs,
because of its tendency to provoke disorder, should be regulated,
or a judgment that the playing of a phonograph on the streets
should in the interest of comfort or privacy be limited or prevented.
Violation of an Act exhibiting such a legislative judgment and
narrowly drawn to prevent the supposed evil would pose a question
differing from that we must here answer. [Footnote 9] Such a
declaration of the State's policy
CONSTI 2 CASES Free Exercise of Religion
Page 310 U. S. 308
would weigh heavily in any challenge of the law as infringing
constitutional limitations. Here, however, the judgment is based on
a common law concept of the most general and undefined nature.
The court below has held that the petitioner's conduct constituted
the commission of an offense under the state law, and we accept
its decision as binding upon us to that extent.
The offense known as breach of the peace embraces a great variety
of conduct destroying or menacing public order and tranquility. It
includes not only violent acts, but acts and words likely to produce
violence in others. No one would have the hardihood to suggest
that the principle of freedom of speech sanctions incitement to riot,
or that religious liberty connotes the privilege to exhort others to
physical attack upon those belonging to another sect. When clear
and present danger of riot, disorder, interference with traffic upon
the public streets, or other immediate threat to public safety,
peace, or order appears, the power of the State to prevent or
punish is obvious. Equally obvious is it that a State may not unduly
suppress free communication of views, religious or other, under the
guise of conserving desirable conditions. Here we have a situation
analogous to a conviction under a statute sweeping in a great
variety of conduct under a general and indefinite characterization,
and leaving to the executive and judicial branches too wide a
discretion in its application.
Having these considerations in mind, we note that Jesse Cantwell,
on April 26, 1938, was upon a public street, where he had a right to
be and where he had a right peacefully to impart his views to
others. There is no showing that his deportment was noisy,
truculent, overbearing or offensive. He requested of two
pedestrians permission to play to them a phonograph record. The
permission was granted. It is not claimed that he
Page 310 U. S. 309
intended to insult or affront the hearers by playing the record. It is
plain that he wished only to interest them in his propaganda. The
sound of the phonograph is not shown to have disturbed residents
of the street, to have drawn a crowd, or to have impeded traffic.
Page 5 of 267
Thus far, he had invaded no right or interest of the public, or of the
men accosted.
The record played by Cantwell embodies a general attack on all
organized religious systems as instruments of Satan and injurious
to man; it then singles out the Roman Catholic Church for strictures
couched in terms which naturally would offend not only persons of
that persuasion, but all others who respect the honestly held
religious faith of their fellows. The hearers were, in fact, highly
offended. One of them said he felt like hitting Cantwell, and the
other that he was tempted to throw Cantwell off the street. The one
who testified he felt like hitting Cantwell said, in answer to the
question "Did you do anything else or have any other reaction?"
"No, sir, because he said he would take the victrola, and he went."
The other witness testified that he told Cantwell he had better get
off the street before something happened to him, and that was the
end of the matter, as Cantwell picked up his books and walked up
the street.
Cantwell's conduct, in the view of the court below, considered apart
from the effect of his communication upon his hearers, did not
amount to a breach of the peace. One may, however, be guilty of
the offense if he commit acts or make statements likely to provoke
violence and disturbance of good order, even though no such
eventuality be intended. Decisions to this effect are many, but
examination discloses that, in practically all, the provocative
language which was held to amount to a breach of the peace
consisted of profane, indecent, or abusive remarks directed to the
person of the hearer. Resort to epithets or
Page 310 U. S. 310
personal abuse is not in any proper sense communication of
information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that
instrument.
We find in the instant case no assault or threatening of bodily harm,
no truculent bearing, no intentional discourtesy, no personal abuse.
On the contrary, we find only an effort to persuade a willing listener
to buy a book or to contribute money in the interest of what
CONSTI 2 CASES Free Exercise of Religion
Cantwell, however misguided others may think him, conceived to
be true religion.
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem
the rankest error to his neighbor. To persuade others to his own
point of view, the pleader, as we know, at times resorts to
exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the
people of this nation have ordained, in the light of history, that, in
spite of the probability of excesses and abuses, these liberties are,
in the long view, essential to enlightened opinion and right conduct
on the part of the citizens of a democracy.
The essential characteristic of these liberties is that, under their
shield, many types of life, character, opinion and belief can develop
unmolested and unobstructed. Nowhere is this shield more
necessary than in our own country, for a people composed of many
races and of many creeds. There are limits to the exercise of these
liberties. The danger in these times from the coercive activities of
those who in the delusion of racial or religious conceit would incite
violence and breaches of the peace in order to deprive others of
their equal right to the exercise of their liberties, is emphasized by
events familiar to all. These and other transgressions of those limits
the States appropriately may punish.
Page 310 U. S. 311
Although the contents of the record not unnaturally aroused
animosity, we think that, in the absence of a statute narrowly
drawn to define and punish specific conduct as constituting a clear
and present danger to a substantial interest of the State, the
petitioner's communication, considered in the light of the
constitutional guarantees, raised no such clear and present menace
to public peace and order as to render him liable to conviction of
the common law offense in question. [Footnote 10]
The judgment affirming the convictions on the third and fifth counts
is reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion.
Reversed.
Page 6 of 267

U.S. Supreme Court
United States v. Ballard, 322 U.S. 78 (1944)
United States v. Ballard
No. 472
Argued March 3, 6, 1944
Decided April 24, 1944
322 U.S. 78
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
Upon an indictment charging use of the mails to defraud, and
conspiracy so to do, respondents were convicted in the District
Court. The indictment charged a scheme to defraud through
representations -- involving respondents' religious doctrines or
beliefs -- which were alleged to be false and known by the
respondents to be false. Holding that the District Court had
restricted the jury to the issue of respondents' good faith and that
this was error, the Circuit Court of Appeals reversed and granted a
new trial.
Held:
1. The only issue submitted to the jury by the District Court was
whether respondents believed the representations to be true.
P. 322 U. S. 84.
2. Respondents did not acquiesce in the withdrawal from the jury of
the issue of the truth of their religious doctrines or beliefs, and are
CONSTI 2 CASES Free Exercise of Religion
not barred by the rule of Johnson v. United States, 318 U. S. 189,
from reasserting here that no part of the indictment should have
been submitted to the jury. P. 322 U. S. 85.
3. The District Court properly withheld from the jury all questions
concerning the truth or falsity of respondents' religious beliefs or
doctrines. This course was required by the First Amendment's
guarantee of religious freedom. P. 322 U. S. 86.
The preferred position given freedom of religion by the First
Amendment is not limited to any particular religious group or to any
particular type of religion but applies to all. P. 322 U. S. 87.
4. Respondents may urge in support of the judgment of the Circuit
Court of Appeals points which that court reserved, but, since these
were not fully presented here either in the briefs or oral argument,
they may more appropriately be considered by that court upon
remand. P. 322 U. S. 88.
138 F.2d 540 reversed.
Certiorari, 320 U.S. 733, to review the reversal of convictions for
using the mails to defraud and conspiracy.
Page 322 U. S. 79
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondents were indicted and convicted for using, and conspiring
to use, the mails to defraud. § 215 Criminal Code, 18 U.S.C. § 338; §
37 Criminal Code, 18 U.S.C. § 88. The indictment was in twelve
counts. It charged a scheme to defraud by organizing and
promoting the I Am movement through the use of the mails. The
charge was that certain designated corporations were formed,
literature distributed and sold, funds solicited, and memberships in
the I Am movement sought "by means of false and fraudulent
representations, pretenses and promises." The false
representations charged were eighteen in number. It is sufficient at
this point to say that they covered respondents' alleged religious
doctrines or beliefs. They were all set forth in the first count. The
following are representative:
Page 7 of 267
"that Guy W. Ballard, now deceased, alias Saint Germain, Jesus,
George Washington, and Godfre Ray King, had been selected and
thereby designated by the alleged 'ascertained masters,' Saint
Germain, as a divine messenger, and that the words of 'ascended
masters' and the words of the alleged divine entity, Saint Germain,
would be transmitted to mankind through the medium of the said
Guy W. Ballard;"
"that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and
Donald Ballard, by reason of their alleged high spiritual attainments
and righteous conduct, had been selected as divine messengers
through which the words of the alleged 'ascended masters,'
including
Page 322 U. S. 80
the alleged Saint Germain, would be communicated to mankind
under the teachings commonly known as the 'I Am' movement;"
"that Guy W. Ballard, during his lifetime, and Edna W. Ballard and
Donald Ballard had, by reason of supernatural attainments, the
power to heal persons of ailments and diseases and to make well
persons afflicted with any diseases, injuries, or ailments, and did
falsely represent to persons intended to be defrauded that the
three designated persons had the ability and power to cure persons
of those diseases normally classified as curable and also of
diseases which are ordinarily classified by the medical profession as
being incurable diseases, and did further represent that the three
designated persons had in fact cured either by the activity of one,
either, or all of said persons, hundreds of persons afflicted with
diseases and ailments;"
Each of the representations enumerated in the indictment was
followed by the charge that respondents "well knew" it was false.
After enumerating the eighteen misrepresentations the indictment
also alleged:
"At the time of making all of the afore-alleged representations by
the defendants, and each of them, the defendants, and each of
them, well knew that all of said aforementioned representations
were false and untrue and were made with the intention on the part
of the defendants, and each of them, to cheat, wrong, and defraud
CONSTI 2 CASES Free Exercise of Religion
persons intended to be defrauded, and to obtain from persons
intended to be defrauded by the defendants, money, property, and
other things of value and to convert the same to the use and the
benefit of the defendants, and each of them;"
The indictment contained twelve counts, one of which charged a
conspiracy to defraud. The first count set forth all of the eighteen
representations, as we have said. Each of the other counts
incorporated and realleged all of them and added no additional
ones. There was a demurrer and a motion to quash each of which
asserted, among other things, that the indictment attacked the
religious beliefs
Page 322 U. S. 81
of respondents and sought to restrict the free exercise of their
religion in violation of the Constitution of the United States. These
motions were denied by the District Court. Early in the trial,
however, objections were raised to the admission of certain
evidence concerning respondents' religious beliefs. The court
conferred with counsel in absence of the jury and, with the
acquiescence of counsel for the United States and for respondents,
confined the issues on this phase of the case to the question of the
good faith of respondents. At the request of counsel for both sides,
the court advised the jury of that action in the following language:
"Now, gentlemen, here is the issue in this case:"
"First, the defendants in this case made certain representations of
belief in a divinity and in a supernatural power. Some of the
teachings of the defendants, representations, might seem
extremely improbable to a great many people. For instance, the
appearance of Jesus to dictate some of the works that we have had
introduced in evidence, as testified to here at the opening
transcription, or shaking hands with Jesus, to some people that
might seem highly improbable. I point that out as one of the many
statements."
"Whether that is true or not is not the concern of this Court and is
not the concern of the jury -- and they are going to be told so in
their instructions. As far as this Court sees the issue, it is
immaterial what these defendants preached or wrote or taught in
Page 8 of 267
their classes. They are not going to be permitted to speculate on
the actuality of the happening of those incidents. Now, I think I
have made that as clear as I can. Therefore, the religious beliefs of
these defendants cannot be an issue in this court."
"The issue is: did these defendants honestly and in good faith
believe those things? If they did, they should be acquitted. I cannot
make it any clearer than that."
"If these defendants did not believe those things, they did not
believe that Jesus came down and dictated,
Page 322 U. S. 82
or that Saint Germain came down and dictated, did not believe the
things that they wrote, the things that they preached, but used the
mail for the purpose of getting money, the jury should find them
guilty. Therefore, gentlemen, religion cannot come into this case."
The District Court reiterated that admonition in the charge to the
jury, and made it abundantly clear. The following portion of the
charge is typical:
"The question of the defendants' good faith is the cardinal question
in this case. You are not to be concerned with the religious belief of
the defendants, or any of them. The jury will be called upon to pass
on the question of whether or not the defendants honestly and in
good faith believed the representations which are set forth in the
indictment, and honestly and in good faith believed that the
benefits which they represented would flow from their belief to
those who embraced and followed their teachings, or whether
these representations were mere pretenses without honest belief
on the part of the defendants or any of them, and, were the
representations made for the purpose of procuring money, and
were the mails used for this purpose."
As we have said, counsel for the defense acquiesced in this
treatment of the matter, made no objection to it during the trial,
and indeed treated it without protest as the law of the case
throughout the proceedings prior to the verdict. Respondents did
not change their position before the District Court after verdict and
CONSTI 2 CASES Free Exercise of Religion
contend that the truth or verity of their religious doctrines or beliefs
should have been submitted to the jury. In their motion for new
trial, they did contend, however, that the withdrawal of these
issues from the jury was error because it was, in effect, an
amendment of the indictment. That was also one of their
specifications of errors on appeal. And other errors urged on appeal
included the overruling of the demurrer to the indictment and the
motion to quash, and the
Page 322 U. S. 83
disallowance of proof of the truth of respondents' religious
doctrines or beliefs.
The Circuit Court of Appeals reversed the judgment of conviction
and granted a new trial, one judge dissenting. 138 F.2d 540. In its
view, the restriction of the issue in question to that of good faith
was error. Its reason was that the scheme to defraud alleged in the
indictment was that respondents made the eighteen alleged false
representations, and that, to prove that defendants devised the
scheme described in the indictment,
"it was necessary to prove that they schemed to make some at
least, of the [eighteen] representations . . . and that some, at least,
of the representations which they schemed to make were false."
138 F.2d 545. One judge thought that the ruling of the District Court
was also error because it was "as prejudicial to the issue of honest
belief as to the issue of purposeful misrepresentation." Id., p. 546.
The case is here on a petition for a writ of certiorari which we
granted because of the importance of the question presented.
The United States contends that the District Court withdrew from
the jury's consideration only the truth or falsity of those
representations which related to religious concepts or beliefs, and
that there were representations charged in the indictment which
fell within a different category. * The argument is that this latter
group of
Page 322 U. S. 84
Page 9 of 267
representations was submitted to the jury, that they were adequate
to constitute an offense under the Act, and that they were
supported by the requisite evidence. It is thus sought to bring the
case within the rule of Hall v. United States, 168 U. S. 632, 168 U.
S. 639-640, which held that, where an indictment contained "all the
necessary averments to constitute an offense created by the
statute," a conviction would not be set aside because a "totally
immaterial fact" was averred but not proved. We do not stop to
ascertain the relevancy of that rule to this case, for we are of the
view that all of the representations charged in the indictment which
related at least in part to the religious doctrines or beliefs of
respondents were withheld from the jury. The trial judge did not
differentiate them. He referred in the charge to the "religious
beliefs" and "doctrines taught by the defendants" as matters
withheld from the jury. And, in stating that the issue of good faith
was the "cardinal question" in the case, he charged, as already
noted, that
"The jury will be called upon to pass on the question of whether or
not the defendants honestly and in good faith believed the
representations which are set forth in the indictment."
Nowhere in the charge were any of the separate representations
submitted to the jury. A careful reading of the whole charge leads
us to agree with the Circuit Court of Appeals on this phase of the
case that the only issue submitted to the jury was the question as
stated by the District Court, of respondents' "belief in their
representations and promises."
The United States contends that respondents acquiesced in the
withdrawal from the jury of the truth of their religious
Page 322 U. S. 85
doctrines or beliefs and that their consent bars them from insisting
on a different course once that one turned out to be unsuccessful.
Reliance for that position is sought in Johnson v. United States, 318
U. S. 189. That case stands for the proposition that, apart from
situations involving an unfair trial, an appellate court will not grant
a new trial to a defendant on the ground of improper introduction of
evidence or improper comment by the prosecutor where the
defendant acquiesced in that course and made no objection to it. In
CONSTI 2 CASES Free Exercise of Religion
fairness to respondents, that principle cannot be applied here. The
real objection of respondents is not that the truth of their religious
doctrines or beliefs should have been submitted to the jury. Their
demurrer and motion to quash made clear their position that that
issue should be withheld from the jury on the basis of the First
Amendment. Moreover, their position at all times was, and still is,
that the court should have gone the whole way and withheld from
the jury both that issue and the issue of their good faith. Their
demurrer and motion to quash asked for dismissal of the entire
indictment. Their argument that the truth of their religious
doctrines or beliefs should have gone to the jury when the question
of their good faith was submitted was and is merely an alternative
argument. They never forsook their position that the indictment
should have been dismissed, and that none of it was good.
Moreover, respondents' motion for new trial challenged the
propriety of the action of the District Court in withdrawing from the
jury the issue of the truth of their religious doctrines or beliefs
without also withdrawing the question of their good faith. So we
conclude that the rule of Johnson v. United States, supra, does not
prevent respondents from reasserting now that no part of the
indictment should have been submitted to the jury.
As we have noted, the Circuit Court of Appeals held that the
question of the truth of the representations concerning
Page 322 U. S. 86
respondent's religious doctrines or beliefs should have been
submitted to the jury. And it remanded the case for a new trial. It
may be that the Circuit Court of Appeals took that action because it
did not think that the indictment could be properly construed as
charging a scheme to defraud by means other than
misrepresentations of respondents' religious doctrines or beliefs. Or
that court may have concluded that the withdrawal of the issue of
the truth of those religious doctrines or beliefs was unwarranted
because it resulted in a substantial change in the character of the
crime charged. But, on whichever basis that court rested its action,
we do not agree that the truth or verity of respondents' religious
doctrines or beliefs should have been submitted to the jury.
Whatever this particular indictment might require, the First
Amendment precludes such a course, as the United States seems
to concede. "The law knows no heresy, and is committed to the
Page 10 of 267
support of no dogma, the establishment of no sect." Watson v.
Jones, 13 Wall. 679,80 U. S. 728. The First Amendment has a dual
aspect. It not only "forestalls compulsion by law of the acceptance
of any creed or the practice of any form of worship," but also
"safeguards the free exercise of the chosen form of
religion." Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303.
"Thus, the Amendment embraces two concepts -- freedom to
believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be."
Id., pp. 310 U. S. 303-304. Freedom of thought, which includes
freedom of religious belief, is basic in a society of free men. Board
of Education by Barnette, 319 U. S. 624. It embraces the right to
maintain theories of life and of death and of the hereafter which are
rank heresy to followers of the orthodox faiths. Heresy trials are
foreign to our Constitution. Men may believe what they cannot
prove. They may not be put to the proof of their religious doctrines
or beliefs. Religious experiences which are as real as life to some
may be incomprehensible to others.
Page 322 U. S. 87
Yet the fact that they may be beyond the ken of mortals does not
mean that they can be made suspect before the law. Many take
their gospel from the New Testament. But it would hardly be
supposed that they could be tried before a jury charged with the
duty of determining whether those teachings contained false
representations. The miracles of the New Testament, the Divinity of
Christ, life after death, the power of prayer are deep in the religious
convictions of many. If one could be sent to jail because a jury in a
hostile environment found those teachings false, little indeed would
be left of religious freedom. The Fathers of the Constitution were
not unaware of the varied and extreme views of religious sects, of
the violence of disagreement among them, and of the lack of any
one religious creed on which all men would agree. They fashioned a
charter of government which envisaged the widest possible
toleration of conflicting views. Man's relation to his God was made
no concern of the state. He was granted the right to worship as he
pleased, and to answer to no man for the verity of his religious
views. The religious views espoused by respondents might seem
incredible, if not preposterous, to most people. But if those
CONSTI 2 CASES Free Exercise of Religion
doctrines are subject to trial before a jury charged with finding their
truth or falsity, then the same can be done with the religious beliefs
of any sect. When the triers of fact undertake that task, they enter
a forbidden domain. The First Amendment does not select any one
group or any one type of religion for preferred treatment. It puts
them all in that position. Murdock v. Pennsylvania, 319 U. S. 105. As
stated in Davis v. Beason, 133 U. S. 333, 133 U. S. 342:
"With man's relations to his Maker and the obligations he may think
they impose, and the manner in which an expression shall be made
by him of his belief on those subjects, no interference can be
permitted, provided always the laws of society, designed to secure
its peace and prosperity, and the morals of its people, are not
interfered with."
See Prince
Page 322 U. S. 88
v. Massachusetts, 321 U. S. 158. So we conclude that the District
Court ruled properly when it withheld from the jury all questions
concerning the truth or falsity of the religious beliefs or doctrines of
respondents.
Respondents maintain that the reversal of the judgment of
conviction was justified on other distinct grounds. The Circuit Court
of Appeals did not reach those questions. Respondents may, of
course, urge them here in support of the judgment of the Circuit
Court of Appeals. Langnes v. Green, 282 U. S. 531, 282 U. S. 538-
539; Story Parchment Co. v. Paterson Co., 282 U. S. 555, 282 U. S.
560, 282 U. S. 567-568. But since attention was centered on the
issues which we have discussed, the remaining questions were not
fully presented to this Court either in the briefs or oral argument. In
view of these circumstances, we deem it more appropriate to
remand the cause to the Circuit Court of Appeals so that it may
pass on the questions reserved. Lutcher & Moore Lumber Co. v.
Knight, 217 U. S. 257, 217 U. S. 267-268; Brown v. Fletcher, 237 U.
S. 583. If any questions of importance survive and are presented
here, we will then have the benefit of the views of the Circuit Court
of Appeals. Until that additional consideration is had, we cannot be
sure that it will be necessary to pass on any of the other
constitutional issues which respondents claim to have reserved.
Page 11 of 267
The judgment is reversed, and the cause is remanded to the Circuit
Court of Appeals for further proceedings in conformity to this
opinion.
Reversed.
[No. L-9637. April 30, 1957]
AMERICAN BIBLE SOCIETY, plaintiff and appellant, vs. CITY
OF MANILA, defendant and appellee.
1. 1.STATUTES; SIMULTANEOUS REPEAL AND RE-
ENACTMENT; EFFECT OF REPEAL UPON RIGHTS AND
LIABILITIES WHICH ACCRUED UNDER THE ORIGINAL
STATUTE.—Where the old statute is repealed in its entirety
and by the same enactment re-enacts all or certain
portions of the pre-existing law, the majority view holds
that the rights and liabilities which. have accrued under the
original statute are preserved and may be enforced, since
the re-enactment neutralizes the repeal, therefore
continuing the law in force without interruption. (Crawford,
Statutory Construction, Sec. 322). In the case at bar,
Ordinances Nos. 2529 and 3000 of the City of Manila were
enacted by the Municipal Board of the City of Manila by
virtue of the power granted to it by section 2444,
Subsection (m-2) of the Revised Administrative Code,
superseded on June 18, 1949, by section 18, Subsection (o)
of Republic Act No. 409, known as the Revised Charter of
the City of Manila. The only essential difference between
these two provisions is that while Subsection (m-
2) prescribes that the combined total tax of any dealer or
manufacturer, or both, enumerated under Subsections (m-
1) and (m-2), whether dealing in one or all of the articles
mentioned therein, shall not be in excess of P500 per
annum, the corresponding Section 18, subsection (o) of
Republic Act No. 409, does not contain any limitation as to
the amount of tax or license fee that the retail dealer has
to pay per annum. Hence, and in accordance with the
weight of authorities aforementioned, City ordinances Nos.
2529 and 3000 are still in force and effect.
CONSTI 2 CASES Free Exercise of Religion
1. 2.MUNICIPAL TAX; RETAIL DEALERS IN GENERAL
MERCHANDISE; ORDINANCE PRESCRIBING TAX NEED NOT
BE APPROVED BY THE' PRESIDENT TO BE EFFECTIVE.—The
business of "retail dealers in
387
VOL. 101, APRIL 30, 1957 387
American Bible Society vs. City of Manila
1. general merchandise" is expressly enumerated in subsection
(o), section 18 of Republic Act No. 409: hence. an
ordinance prescribing a municipal tax on said business
does not have to be approved by the President to be
effective, as it is not among those businesses referred to in
subsection (ii) Section 18 of the same Act subject to the
approval of the President.
1. 3.CONSTITUTIONAL LAW; RELIGIOUS
FREEDOM; DlSSEMINATION OF RELIGIOUS INFORMATION,
WHEN MAY BE RESTRAINED; PAYMENT OF LlCENSE FEE,
IMPAIRS FREE EXERCISE OF RELIGION.—The consti-tutional
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." (Tañada and Fernando on the Constitution
of the Philippines, Vol. I, 4th ed., p. 297). In the case at bar,
plaintiff is engaged in the distribution and sales of bibles
and religious articles. The City Treasurer of Manila informed
the plaintiff that it was conducting the business of general
merchandise without providing itself with the necessary
Mayor's permit and municipal license, in violation of
Ordinance No. 3000, as amended, and Ordinance No. 2529,
as amended, and required plaintiff to secure the
corresponding permit and license. Plaintiff protested
against this requirement and claimed that it never made
any profit from the sale of its bibles. Held: It is true the
price asked for the religious articles was in some instances
a little bit higher than the actual cost of the same, but this
cannot mean that plaintiff was engaged in the business or
Page 12 of 267
 occupation of selling said "merchandise" for profit. For this
reasons, the provisions of City Ordinance No. 2529, as
amended, which requires the payment of license fee for
conducting the business of general merchandise, cannot be
applied to plaintiff society, for in doing so, it would impair
its free exercise and enjoyment of its religious profession
and worship, as well as its rights of dissemination of
religious beliefs. Upon the other hand, City Ordinance No.
3000, as amended, which requires the obtention of the
Mayor's permit before any person can engage in any of the
businesses, trades or occupations enumerated therein,
does not impose any charge upon the enjoyment of a right
granted by the Constitution, nor tax the exercise of
religious practices. Hence, it cannot be considered
unconstitutional, even if applied to plaintiff Society. But as
Ordinance No. 2529 is not applicable to plain
388
38 PHILIPPINE REPORTS ANNOTATED
8 demanded that plaintiff deposit and pay under protest the sum of
American Bible Society vs. City of Manila,
1. tiff and the City of Manila is powerless to license or tax the
business of plaintiff society involved herein, for the reasons
above stated, Ordinance No. 3000 is also inapplicable to
said business, trade or occupation of the plaintiff.
APPEAL from a judgment of the Court of First Instance of Manila.
Bayona, J.
The facts are stated in the opinion of the Court.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Nañawa for appellee.
FÉLIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious,
missionary corporation duly registered and doing business in the
Philippines through its Philippine agency established in Manila in
November, 1898, with its principal office at 636 Isaac Peral in said
City. The defendantappellee is a municipal corporation with powers
that are to be exercised in conformity with the provisions of
CONSTI 2 CASES Free Exercise of Religion
Republic Act No. 409, known as the Revised Charter of the City of
Manila.
In the course of its ministry, plaintiff's Philippine agency has
been distributing and selling bibles and/or gospel portions thereof
(except during the Japanese occupation) throughout the Philippines
and translating the same into several Philippine dialects. On May
29, 1953, the acting City Treasurer of the City of Manila informed
plaintiff that it was conducting the business of general merchandise
since November, 1945, without providing itself with the necessary
Mayor's permit and municipal license, in violation of Ordinance No.
3000, as amended, and Ordinances Nos. 2529, 3028 and 3364, and
required plaintiff to secure, within three days, the corresponding
permit and license fees, together with compromise covering the
period from the 4th quarter of 1945 to the 2nd quarter of 1953, in
the total sum of P5,821.45 (Annex A).
389
VOL. 101, APRIL 30, 1957 389
American Bible Society vs. City of Manila
Plaintiff protested against this requirement, but the City Treasurer
P5,891.45, if suit was to be taken in court regarding the same
(Annex B). To avoid the closing of its business as well as f urther
fines and penalties in the premises, on October 24, 1953, plaintiff
paid to the defendant under protest the said permit and license
fees in the aforementioned amount, giving at the same time notice
to the City Treasurer that suit would be taken in court to question
the legality of the ordinances under which, the said fees were being
collected (Annex C), which was done on the same date by filing the
complaint that gave rise to this action. In its complaint plaintiff
prays that judgment be rendered declaring the said Municipal
Ordinance No. 3000, as amended, and Ordinances Nos. 2529, 3028
and 3364 illegal and unconstitutional, and that the defendant be
ordered to refund to the plaintiff the sum of P5,891.45 paid under
protest, together with legal interest thereon, and the costs, plaintiff
further praying for such other relief and remedy as the court may
deem just and equitable.
Defendant answered the complaint, maintaining in turn that said
ordinances were enacted by the Municipal Board of the City of
Manila by virtue of the power granted to it by section 2444,
subsection (m-2) of the Revised Administrative Code, superseded
on June 18, 1949, by section 18, subsection (1) of Republic Act No.
409, known as the Revised Charter of the City of Manila, and
Page 13 of 267
praying that the complaint be dismissed, with costs against Quarter Amoun
plaintiff. This answer was replied by the plaintiff reiterating the
t
unconstitutionality of the often-repeated ordinances.
Before trial the parties submitted the following stipulation of of
facts: Sales
"COME NOW the parties in the above-entitled case, thru their 1947 .....
undersigned attorneys and respectfully submit the following
stipulation of facts: 3rd quarter ....................................................... 14,654.13
1. That the plaintiff sold for the use of the purchasers at its 1947 ......
principal office at 636 Isaac Peral, Manila, Bibles, New Testaments, 4th quarter ....................................................... 12,590.94
390
1947 ......
390 PHILIPPINE REPORTS ANNOTATED
1st quarter ....................................................... 11,143.90
American Bible Society vs. City of Manila
1948 ......
bible portions and bible concordance in English and other foreign
languages imported by it from the United States as well as Bibles, 2nd quarter ....................................................... 14,715.26
New Testaments and bible portions in the local dialects imported 1948 ......
and/or purchased locally; that from the fourth quarter of 1945 to the 3rd quarter ....................................................... 38,333.83
first quarter of 1953 inclusive the sales made by the plaintiff were as 1948 ......
follows: 4th quarter ....................................................... 16,179.90
Quarter Amoun 1948 ......
t 1st quarter ....................................................... 23,975.10
of 1949 ......
Sales 2nd quarter ....................................................... 17,802.08
4th quarter ....................................................... P1,244.21 1949 ......
1945 ..... 3rd quarter ....................................................... 16,640.79
1st quarter ....................................................... 2,206.85 1949 ......
1946 ..... 4th quarter ....................................................... 15,961.38
2nd quarter ....................................................... 1,950.38 1949 ......
1946 ..... 1st quarter ....................................................... 18,562.46
3rd quarter ....................................................... 2,235.99 1950 ......
1946 ...... 2nd quarter ....................................................... 21,816.32
4th quarter ....................................................... 3,256.04 1950 ......
1946 ..... 3rd quarter ....................................................... 25,004.55
1st quarter ....................................................... 13,241.07 1950 ......
1947 ..... 4th quarter ....................................................... 45,287.92
2nd quarter ....................................................... 15,774.55 1950 ......

CONSTI 2 CASES Free Exercise of Religion Page 14 of 267

 Quarter Amoun Bible Society in the United States pay any license fee or sales tax
for the sale of bible therein. Plaintiff further tried to establish that it
t
never made any profit from the sale of its bibles, which are
of disposed of for as low as one third of the cost, and that in order to
Sales maintain its operating cost it obtains substantial remittances from
1st quarter ....................................................... 37,841.21 its New York office and voluntary contributions and gifts from
certain churches, both in the United States and in the Philippines,
1951 ...... which are interested in its missionary work. Regarding plaintiff's
2nd quarter ....................................................... 29,103.98 contention of lack of profit in the sale of bibles, defendant retorts
1951 ...... that the admissions of plaintiff-appellant's lone witness who
testified on cross-examination that bibles bearing the price of 70
3rd quarter ....................................................... 20181.10 cents each from plaintiff-appellant's New York office are sold here
1951 ...... by plaintiff-appellant at P1.30 each; those bearing the price of
4th quarter ....................................................... 22,968.91 $4.50 each are sold here at P10 each; those bearing the price of $7
1951 ...... each are sold here at P15 each; and those bearing the price of $11
each are sold here at P22 each, clearly show that plaintiff's
1st quarter ....................................................... 23,002.65 contention that it never makes any profit from the sale of its bible,
1952 ...... is evidently untenable.
2nd quarter ....................................................... 17,626.96 After hearing the Court rendered judgment, the last part of
which is as follows:
1952 ...... "As may be seen from the repealed section (m-2) of the Revised
3rd quarter ....................................................... 17,921.01 Administrative Code and the repealing portions (o) of section 18 of
1952 ..... Republic Act No. 409, although they seemingly differ in the way the
legislative intent is expressed, yet their meaning is practically the
4th quarter ....................................................... 24 180 72 same for the purpose of taxing the merchandise mentioned in said
1952 ...... legal provisions, and that the taxes to be levied by said ordinances
1st quarter ....................................................... s29,516.21 is in the nature of percentage graduated taxes (Sec. 3 of Ordinance
1953 ...... No. 3000, as amended, and Sec. 1, Group 2, of Ordinance No. 2529,
as amended by Ordinance No. 3364).
2. That the parties hereby reserve the right to present evidence of
392
other facts not herein stipulated.
WHEREFORE, it is respectfully prayed that this case be set for 392 PHILIPPINE REPORTS ANNOTATED
behalf. so the parties may present further evidence on their behalf. American Bible Society vs. City of Manila
(Record on Appeal, pp. 15-16)" IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the
391 opinion and so holds that this case should be dismissed, as it is
VOL. 101, APRIL 30, 1957 391 hereby dismissed, for lack of merits, with costs against the
American Bible Society vs. City of Manila, plaintiff."
Not satisfied with this verdict plaintiff took up the matter to the
When the case was set for hearing, plaintiff proved, among other
Court of Appeals which certified the case to Us for the reason that
things, that it has been in existence in the Philippines since 1899,
the errors assigned to the lower Court involved only questions of
and that its parent society is in New York, United States of America;
law.
that its contiguous real properties located at Isaac Peral are exempt
Appellant contends that the lower Court erred:
from real estate taxes; and that it was never required to pay any
municipal license fee or tax before the war, nor does the American

CONSTI 2 CASES Free Exercise of Religion Page 15 of 267

 1. 1.In holding that Ordinances Nos. 2529 and 3000, as
respectively amended, are not unconstitutional;
2. 2.In holding that subsection m-2 of Section 2444 of the
Revised Administrative Code under which Ordinances Nos.
2529 and 3000 were promulgated, was not repealed by
Section 18 of Republic Act No. 409;
3. 3.In not holding that an ordinance providing for percentage
taxes based on gross sales or receipts, in order to be valid
under the new Charter of the City of Manila, must first be
approved by the President of the Philippines; and
4. 4.In holding that, as the sales made by the plaintiff-
appellant have assumed commercial proportions, it cannot
escape from the operation of said municipal ordinances
under the cloak of religious privilege.
The issues.—As may be seen from the preceding statement of the
case, the issues involved in the present controversy may be
reduced to the following: (1) whether or not the ordinances of the
City of Manila, Nos. 3000, as amended, and 2529, 3028 and 3364,
are constitutional and valid; and (2) whether the provisions of said
ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the
Republic of the Philippines, provides that:
"(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 religion
test shall be required for the exercise of civil or political rights."
393
VOL. 101, APRIL 30, 1957 393
American Bible Society vs. City of Manila
Predicated on this constitutional mandate, plaintiff-appellant
contends that Ordinances Nos. 2529 and 3000, as respectively
amended, are unconstitutional and illegal in so far as its society is
concerned, because they provide for religious censorship and
restrain the free exercise and enjoyment of its religious profession,
to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines.
Before entering into a discussion of the constitutional aspect of
the case, We shall first consider the provisions of the questioned
CONSTI 2 CASES Free Exercise of Religion
ordinances in relation to their application to the sale of bibles, etc.
by appellant. The records show that by letter of May 29, 1953
(Annex A), the City Treasurer required plaintiff to secure a Mayor's
permit in connection with the society's alleged business of
distributing and selling bibles, etc. and to pay permit dues in the
sum of P35 for the period covered in this litigation, plus the sum of
P35 for compromise on account of plaintiffs failure to secure the
permit required by Ordinance No.. 3000 of the City of Manila, as
amended. This Ordinance is of general application and not
particularly directed against institutions like the plaintiff, and it
does not contain any provisions whatsoever prescribing religious
censorship nor restraining the free exercise and enjoyment of any
religious profession. Section 1 of Ordinance No. 3000 reads as
follows:
"SEC. 1. PERMITS NECESSARY.—It shall be unlawful for any person
or entity to conduct or engage in any of the businesses, trades, or
occupations enumerated in Section 3 of this Ordinance or other
businesses, trades, or occupations for which a permit is required
for the proper supervision and enforcement of existing laws and
ordinances governing the sanitation, security, and welfare of the
public and the health of the employees engaged in the business
specified in said section 3 hereof, WITHOUT FIRST HAVING
OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE
NECESSARY LICENSE FROM THE CITY TREASURER."
The business, trade or occupation of the plaintiff involved in this
case is not particularly mentioned in Section
394
394 PHILIPPINE REPORTS ANNOTATED
American Bible Society vs. City of Manila
3 of the Ordinance, and the record does not show that a permit is
required therefor under existing laws and ordinances for the proper
supervision and enforcement of their provisions governing the
sanitation, security and welfare of the public and the health of the
employees engaged in the business of the plaintiff. However,
section 3 of Ordinance 3000 contains item No. 79, which reads as
follows:
"79. All other businesses, trades or occupations not mentioned in
this Ordinance, except those upon which the City is not empowered
to license or to tax .... P5.00"
Therefore, the necessity of the permit is made to depend upon the
power of the City to license or tax said business, trade or
occupation.
Page 16 of 267
 As to the license fees that the Treasurer of the City of Manila
required the society to pay from the 4th quarter of 1945 to the 1st
quarter of 1953 in the sum of P5,821.45, including the sum of P50
as compromise, Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028 prescribes the following:
"SEC. 1. FEES.—Subject to the provisions of section 578 of the
Revised Ordinances of the City of Manila, as amended, there shall
be paid to the City Treasurer for engaging in any of the businesses
or occupations below enumerated, quarterly, license fees based on
gross sales or receipts realized during the preceding quarter in
accordance with the rates herein prescribed: PROVIDED, HOWEVER,
That a person engaged in any business or occupation for the first
time shall pay the initial license fee based on the probable gross
sales or receipts for the first quarter beginning from the date of the
opening of the business as indicated herein for the corresponding
business or occupation.
* * * * * * * 60 of the Revised Administrative Code but in the opinion of the trial
GROUP 2.—Retail dealers in new (not yet used) merchandise,
which dealers are not yet subject to the payment of any municipal
tax, such as (1) retail dealers in general merchandise; (2) retail
dealers exclusively engaged in the sale of * * * books, including
stationery.
* * * * * * *
395
VOL. 101, APRIL 30, 1957 395
American Bible Society vs. City of Manila,
As may be seen, the license fees required to be paid quarterly in
Section 1 of said Ordinance No. 2529, as amended, are not
imposed directly upon any religious institution but upon those
engaged in any of the business or occupations therein enumerated,
such as retail "dealers in general merchandise" which, it is alleged,
cover the business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes
section 2444, subsection (m-2) of said legal body, as amended by
Act No. 3659, approved on December 8, 1929, empowers the
Municipal Board of the City of Manila:
"(M-2) To tax and fix the license fee on (a) dealers in new
automobiles or accessories or both, and (b) retail dealers in new
(not yet used) merchandise, which dealers are not yet subject to
the payment of any municipal tax.
"For the purpose of taxation, these retail dealers shall be
classified as (1) retail dealers in general merchandise, and (2) retail
CONSTI 2 CASES Free Exercise of Religion
dealers exclusively engaged in the sale of (a) textiles * * * (e)
books, including stationery, paper and office supplies, * * *:
PROVIDED, HOWEVER, That the combined total tax of any debtor or
manufacturer, or both, enumerated under these subsections (m-1)
and (m-2), whether dealing in one or all of the articles mentioned
herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED PESOS PER
ANNUM."
and appellee's counsel maintains that City Ordinances Nos. 2529
and 3000, as amended, were enacted in virtue of the power that
said Act No. 3669 conferred upon the City of Manila. Appellant,
however, contends that said ordinances are no longer in force and
effect as the law under which they were promulgated has been
expressly repealed by Section 102 of Republic Act No. 409 passed
on June 18, 1949,known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that
Republic Act No. 409 expressly repealed the provisions of Chapter
Judge, although Section 2444 (m-2) of the former Manila Charter
and section 18 (o) of the new seemingly differ in the way the
legislative intent was expressed, yet their meaning is practically
396
396 PHILIPPINE REPORTS ANNOTATED
American Bible Society vs. City of Manila
the same for the purpose of taxing the merchandise mentioned in
both legal provisions and, consequently, Ordinances Nos. 2529 and
3000, as amended, are to be considered as still in full force and
effect uninterruptedly up to the present.
"Often the legislature, instead of simply amending the preexisting
statute, will repeal the old statute in its entirety and by the same
enactment re-enact all or certain portions of the preexisting law. Of
course, the problem created by this sort of legislative action
involves mainly the effect of the repeal upon rights and liabilities
which accrued under the original statute. Are those rights and
liabilities destroyed or preserved? The authorities are divided as to
the effect of simultaneous repeals and re-enactments. Some
adhere to the view that the rights and liabilities accrued under the
repealed act are destroyed, since the statutes from which they
sprang are actually terminated, even though for only a very short
period of time. Others, and they seem to be in the majority, refuse
to accept this view of the situation, and consequently maintain that
all rights and liabilities which have accrued under the original
statute are preserved and may be enforced, since the re-
Page 17 of 267
enactment neutralizes the repeal, therefore continuing the law in
force without interruption". (Crawford—Statutory Construction, Sec.
322).
Appellant's counsel states that section 18 (o) of Republic Act No.
409 introduces a new and wider concept of taxation and is so
different from the provisions of Section 2444 (m-2) that the former
cannot be considered as a substantial re-enactment of the
provisions of the latter. We have quoted above the provisions of
section 2444 (m-2) of the Revised Administrative Code and We shall
now copy hereunder the provisions of Section 18, subdivision (o) of
Republic Act No. 409, which reads as follows:
"(o) To tax and fix the license fee on dealers in general
merchandise, including importers and indentors, except those
dealers who may be expressly subject to the payment of some
other municipal tax under the provisions of this section.
Dealers in general merchandise shall be classified as (a)
wholesale dealers and (b) retail dealers. For purposes of the tax on
retail dealers, general merchandise shall be classified into four
main classes: namely (1) luxury articles, (2) semi-luxury articles,
(3) essential commodities, and (4) miscellaneous articles. A
separate
397
VOL. 101, APRIL 30, 1957 397
American Bible Society vs. City of Manila
license shall be prescribed for each class but where commodities of
different classes are sold in the same establishment, it shall not be
compulsory for the owner to secure more than one license if he
pays the higher or highest rate of tax prescribed by ordinance.
Wholesale dealers shall pay the license tax as such, as may be
provided by ordinance.
For purposes of this section, the term 'General merchandise'
shall include poultry and livestock, agricultural products, fish and
other allied products."
The only essential difference that We find between these two
provisions that may have any bearing on the case at bar, is that
while subsection (m-2) prescribes that the combined total tax of
any dealer or manufacturer, or both, enumerated under
subsections (m-1) and (m-2), whether dealing in one or all of the
articles mentioned therein, shall not be in excess of P500 per
annum, the corresponding section 18, subsection (o) of Republic
Act No. 409, does not contain any limitation as to the amount of tax
or license fee that the retail dealer has to pay per annum. Hence,
CONSTI 2 CASES Free Exercise of Religion
and in accordance with the weight of the authorities above referred
to that maintain that "all rights and liabilities which have accrued
under the original statute are preserved and may be enforced,,
since the reenactment neutralizes the repeal, therefore continuing
the law in force without interruption", We hold that the questioned
ordinances of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be
valid, must first be approved by the President of the Philippines as
per section 18, subsection (ii) of Republic Act No. 409, which reads
as follows:
"(ii) To tax, license and regulate any business, trade or occupation
being conducted within the City of Manila, not otherwise
enumerated in the preceding subsections, including percentage
taxes based on gross sales or receipts, subject to the approval of
the PRESIDENT, except amusement taxes"
but this requirement of the President's approval was not contained
in section 2444 of the former Charter of the
398
398 PHILIPPINE REPORTS ANNOTATED
American Bible Society vs. City of Manila
City of Manila under which Ordinance No. 2529 was promulgated.
Anyway, as stated by appellee's counsel, the business of "retail
dealers in general merchandise" is expressly enumerated in
subsection (o), section 18 of Republic Act No. 409; hence, an
ordinance prescribing a municipal tax on said business does not
have to be approved by the President to be effective, as it is not
among those referred to in said subsection (ii). Moreover, the
questioned ordinances are still in force, having been promulgated
by the Municipal Board of the City of Manila under the authority
granted to it by law.
The question that now remains to be determined is whether said
ordinances are inapplicable, invalid or unconstitutional if applied to
the alleged business of distribution and sale of bibles to the people
of the Philippines by a religious corporation like the American Bible
Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028, appellant contends that it is
unconstitutional and illegal because it restrains the free exercise
and enjoyment of the religious profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the
Philippines aforequoted, guarantees the freedom of religious
profession and worship. "Religion has been spoken of as 'a
Page 18 of 267
profession of faith to an active power that binds and elevates man
to its Creator' (Aglipay vs. Ruiz, 64 Phil., 201). It has reference to
one's views of his relations to His Creator and to the obligations
they impose of reverence to His being and character, and
obedience to His Will (Davis vs. Beason, 133 U.S., 342). 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". (Tañada
and Fernando on the
399
VOL. 101, APRIL 30, 1957 399
American Bible Society vs. City of Manila
Constitution of the Philippines, Vol. I, 4th ed., p. 297). In the case at
bar the license fee herein involved is imposed upon appellant for its
distribution and sale of bibles and other religious literature:
"In the case of Murdock vs. Pennsylvania, it was held that an
ordinance requiring that a license be obtained before a person
could canvass or solicit orders for goods, paintings, pictures, wares
or merchandise cannot be made to apply to members of Jehovah's
Witnesses who went about from door to door distributing literature
and soliciting people to 'purchase' certain religious books and
pamphlets, all published by the Watch Tower Bible & Tract Society.
The 'price' of the books was twenty-five cents each, the 'price' of
the pamphlets five cents each. It was shown that in making the
solicitations there was a request for additional 'contribution' of
twenty-five cents each for the books and five cents each for the
pamphlets. Lesser sum were accepted, however, and books were
even donated in case interested persons were without funds. On
the above facts the Supreme Court held that it could not be said
that petitioners were engaged in commercial rather than a religious
venture. Their activities could not be described as embraced in the
occupation of selling books and pamphlets. Then the Court
continued:
'We do not mean to say that religious groups and the press are
free from all financial burdens of government. See
Grosjean vs. American Press Co., 297 U.S., 233, 250, 80 L. ed. 660,
668, 56 S. Ct. 444. We have here something quite different, for
example, from a tax on the income of one who engages in religious
activities or a tax on property used or employed in connection with
CONSTI 2 CASES Free Exercise of Religion
those activities. It is one thing to impose a tax on the income or
property of a preacher. It is quite another thing to exact a tax from
him for the privilege of delivering a sermon. The tax imposed by
the City of Jeannette is a flat license tax, payment of which is a
condition of the exercise of these constitutional privileges. The
power to tax the exercise of a privilege is the power to control or
suppress its enjoyment. * * * Those who can tax the exercise of this
religious practice can make its exercise so costly as to deprive it of
the resources necessary for its maintenance. Those who can tax
the privilege of engaging in this form of missionary evangelism can
close all its doors to all those who do not have a full purse.
Spreading religious beliefs in this ancient and honorable manner
would thus be denied the needy. * * * It is contended however that
the fact that the license tax can suppress or control this activity is
unimportant if it does not do so. But that is to disregard the nature
of this tax. It
400
400 PHILIPPINE REPORTS ANNOTATED
American Bible Society vs. City of Manila,
is a license tax—a flat tax imposed on the exercise of a privilege
granted by the Bill of Rights * * * The power to impose a license tax
on the exercise of these freedoms is indeed as potent as the power
of censorship which this Court has repeatedly struck down. * * * It
is not a nominal fee imposed as a regulatory measure to defray the
expenses of policing the activities in question. It is in no way
apportioned. It is flat license tax levied and collected as a condition
to the pursuit of activities whose 'enjoyment is guaranted by the
constitutional liberties of press and religion and inevitably tends to
suppress their exercise. That is almost uniformly recognized as the
inherent vice and evil of this flat license tax.'
Nor could dissemination of religious information be conditioned
upon the approval of an official or manager even if the town were
owned by a corporation as held in the case of Marsh vs. State of
Alabama (326 U.S. 501), or by the United States itself as held in the
case of Tucker vs. Texas(326 U.S. 517). In the former case the
Supreme Court expressed the opinion that the right to enjoy
freedom of the press and religion occupies a preferred position as
against the constitutional right of property owners.
'When we balance the constitutional rights of owners of property
against those of the people to enjoy freedom of press and religion,
as we must here, we remain mindful of the fact that the latter
occupy a preferred position. * * * In our view the circumstance that
Page 19 of 267
the property rights to the premises where the deprivation of
property here involved, took place, were held by others than the
public, is not sufficient to justify the State's permitting a
corporation to govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint by the
application of a State statute.'" (Tañada and Fernando on the
Constitution of the Philippines, Vol. I, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the
National Internal Revenue Code, provides:
"SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS.—The
following organizations shall not be taxed under this Title in respect
to income received by them as such—
"(e) Corporations or associations organized and operated
exclusively for religious, charitable, * * * or educational purposes, *
* *: Provided, however, That the income of whatever kind and
character from any of its properties, real or personal, or from any
activity conducted for profit, regardless of the disposition made of
such income, shall be liable to the tax imposed under this Code;".
401
VOL. 101, APRIL 30, 1957 401
American Bible Society vs. City of Manila
Appellant's counsel claims that the Collector of Internal Revenue
has exempted the plaintiff from this tax and says that such
exemption clearly indicates that the act of distributing and selling
bibles, etc. is purely religious and does not fall under the above
legal provisions.
It may be true that in the case at bar the price asked for the
bibles and other religious pamphlets was in some instances a little
bit higher than the actual cost of the same, but this cannot mean
that appellant was engaged in the business or occupation of selling
said "merchandise" for profit. For this reason We believe that the
provisions of City of Manila Ordinance No. 2529, as amended,
cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and worship
as well as its rights of dissemination of religious beliefs.
With respect to Ordinance No. 3000, as amended, which
requires the obtention of the Mayor's permit before any person can
engage in any of the businesses, trades or occupations enumerated
therein, We do not find that it imposes any charge upon the
enjoyment of a right granted by the Constitution, nor tax the
exercise of religious practices. In the case of Coleman vs. City of
Griffin, 189 S.E. 427, this point was elucidated as follows:
CONSTI 2 CASES Free Exercise of Religion
"An ordinance by the City of Griffin, declaring that the practice of
distributing either by hand or otherwise, circulars, handbooks,
advertising, or literature of any kind, whether said articles are
being delivered free, or whether same are being sold within the city
limits of the City of Griffin, without first obtaining written
permission from the city manager of the City of Griffin, shall be
deemed a nuisance and punishable as an offense against the City
of Griffin, does not deprive defendant of his constitutional right of
the free exercise and enjoyment of religious profession and
worship, even though it prohibits him from introducing and carrying
out a scheme or purpose which he sees fit to claim as a part of his
religious system."
It seems clear, therefore, that Ordinance No. 3000 cannot be
considered unconstitutional, even if applied to plaintiff Society. But
as Ordinance No. 2529 of the City of
402
402 PHILIPPINE REPORTS ANNOTATED
People vs. Nabaluna, et al.
Manila, as amended, is not applicable to plaintiff-appellant and
defendant-appellee is powerless to license or tax the business of
plaintiff Society involved herein for, as stated before, it would
impair plaintiff's right to the free exercise and enjoyment of its
religious profession and worship, as well as its rights of
dissemination of religious beliefs, We find that Ordinance No. 3000,
as amended, is also inapplicable to said business, trade or
occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations,
We hereby reverse the decision appealed from, sentencing
defendant to return to plaintiff the sum of P5,891.45 unduly
collected from it. Without pronouncement as to costs. It is so
ordered.
Bengzon, Padilla, Montemayor, Bautista
Angelo, Labrador, Concepcion, and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.
Judgment reversed.
G.R. No. 190582.  April 8, 2010.*
Page 20 of 267
ANG LADLAD LGBT PARTY represented herein by its Chair,
DANTON REMOTO, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Constitutional Law; Election Law; Party-List System; The
enumeration of marginalized and under-represented sectors is not
exclusive.—As we explicitly ruled in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections, 359 SCRA 698 (2001), “the
enumeration of marginalized and under-represented sectors is not
exclusive.” The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
Same; Same; Same; Aside from Commission on Elections’
(COMELEC’s) moral objection and the belated allegation of non-
existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a party-
list organization under any of the requisites under Republic Act No.
7941 or the guidelines in Ang Bagong Bayani.—We find that Ang
Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC’s
moral objection and the belated allegation of non-existence,
nowhere in the records has the respondent ever found/ruled
that Ang Ladladis not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference, COMELEC claims,
lies in Ang Ladlad’s morality, or lack thereof.
Same; Same; Same; It was grave violation of the non-
establishment clause for the Commission on Elections (COMELEC)
to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.—Our Constitution provides in Article III, Section 5 that “[n]o
law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious
matters.” Clearly, “governmental reliance on religious justification
is inconsis-
_______________
* EN BANC.
33
VOL. 618, APRIL 8, 2010 33
Ang Ladlad LGBT Party vs. Commission on Elections
CONSTI 2 CASES Free Exercise of Religion
tent with this policy of neutrality.” We thus find that it was
grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.
Same; Same; Same; Through the years, homosexual conduct,
and perhaps homosexuals themselves, have borne the brunt of
societal disapproval.—We are not blind to the fact that, through the
years, homosexual conduct, and perhaps homosexuals themselves,
have borne the brunt of societal disapproval. It is not difficult to
imagine the reasons behind this censure—religious beliefs,
convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines
has not seen fit to criminalize homosexual conduct. Evidently,
therefore, these “generally accepted public morals” have not been
convincingly transplanted into the realm of law.
Election Law; Party-List System; Civil Law; “Nuisance,”
Defined.—Article 694 of the Civil Code defines a nuisance as “any
act, omission, establishment, condition of property, or anything
else which shocks, defies, or disregards decency or morality,” the
remedies for which are a prosecution under the Revised Penal Code
or any local ordinance, a civil action, or abatement without judicial
proceedings.
Same; Same; Evidence; A mere blanket invocation of public
morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.—
A violation of Article 201 of the Revised Penal Code, requires proof
beyond reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws is
not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
Same; Same; Moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals
from participation in the party-list system.—We hold that moral
disapproval, without more, is not a sufficient governmental interest
to justify exclusion of homosexuals from participation in the party-
list system. The denial of Ang Ladlad’sregistration on purely moral
grounds amounts more to a statement of dislike and disapproval of
34
3 SUPREME COURT REPORTS ANNOTATED
4
Page 21 of 267
 Ang Ladlad LGBT Party vs. Commission on Elections
homosexuals, rather than a tool to further any substantial
public interest. Respondent’s blanket justifications give rise to the
inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our
equal protection clause.
Constitutional Law; Election Law; Party-List System; Equal
Protection Clause; Recent jurisprudence has affirmed that if a law
neither burdens a fundamental right nor targets a suspect class,
the Supreme Court will uphold the classification as long as it bears
a rational relationship to some legitimate government end.—Recent
jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end. In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, 446 SCRA 299
(2004), we declared that “[i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the
‘rational basis’ test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless
there is a showing of a clear and unequivocal breach of the
Constitution.”
Same; Same; Same; Same; Law of general application should
apply with equal force to Lesbian, Gay, Bisexual and Transgender
(LGBTs), and they deserve to participate in the party-list system on
the same basis as other marginalized and under-represented
sectors.—From the standpoint of the political process, the lesbian,
gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in
the party-list system on the same basis as other marginalized and
under-represented sectors.
Same; Same; Freedom of Expression; Freedom of expression
constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock or disturb.—
Freedom of expression constitutes one of the essential foundations
of a democratic society, and this freedom applies not only to those
that are favorably received but also to those that offend, shock, or
CONSTI 2 CASES Free Exercise of Religion
disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate
35
VOL. 618, APRIL 8, 2010 35
Ang Ladlad LGBT Party vs. Commission on Elections
aim pursued. Absent any compelling state interest, it is not for
the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere
with speech for no better reason than promoting an approved
message or discouraging a disfavored one.
Same; Same; Same; Freedom of Association; Only if a political
party incites violence or puts forward policies that are incompatible
with democracy does it fall outside the protection of the freedom of
association guarantee.—A political group should not be hindered
solely because it seeks to publicly debate controversial political
issues in order to find solutions capable of satisfying everyone
concerned. Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside
the protection of the freedom of association guarantee.
Same; Party-List System; Equal Protection Clause; The
principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons,
regardless of sexual orientation.—The principle of non-
discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to “sex” in Article 26 should be construed to include
“sexual orientation.” Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual
orientation to be prohibited under various international
agreements.
Same; Same; Same; Yogyakarta Principles; Using even the
most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are
—at best—de lege ferenda—and do not constitute binding
obligations on the Philippines.—Using even the most liberal of
lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are—at best—
de lege ferenda—and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international law is
Page 22 of 267
characterized by the “soft law” nomenclature, i.e., international law
is full of principles that promote international cooperation,
harmony, and respect for human
36
3 SUPREME COURT REPORTS ANNOTATED
6
Ang Ladlad LGBT Party vs. Commission on Elections
rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.
PUNO, C.J., Separate Concurring Opinion:
Constitutional Law; Election Law; Party-List System; View that
the assailed Resolutions of the Commission on Elections
(COMELEC) run afoul of the non-establishment clause of the
Constitution.—The assailed Resolutions of the Commission on
Elections (COMELEC) run afoul of the non-establishment clause of
the Constitution. There was cypher effort on the part of the
COMELEC to couch its reasoning in legal—much less constitutional
—terms, as it denied Ang Ladlad’s petition for registration as a
sectoral party principally on the ground that it “tolerates immorality
which offends religious (i.e., Christian and Muslim) beliefs.” To be
sure, the COMELEC’s ruling is completely antithetical to the
fundamental rule that “[t]he 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.”
Same; Same; Same; View that the assailed resolutions of the
Commission on Elections (COMELEC) are violative of the
constitutional directive that no religious test shall be required for
the exercise of civil or political rights.—The assailed resolutions of
the COMELEC are violative of the constitutional directive that no
religious test shall be required for the exercise of civil or
political rights. Ang Ladlad’s right of political participation was
unduly infringed when the COMELEC, swayed by the private biases
and personal prejudices of its constituent members, arrogated unto
itself the role of a religious court or worse, a morality police.
Same; Same; Same; View that the Commission on Elections
(COMELEC) capitalized on Ang Ladlad’s definition of the term
“sexual orientation,” as well as its citation of the number of Filipino
men who have sex with men, as basis for the declaration that the
party espouses and advocates sexual immorality; This position
would deny homosexual and bixesual individuals a fundamental
element of personal identity and a legitimate exercise of personal
CONSTI 2 CASES Free Exercise of Religion
liberty.—The COMELEC capitalized on Ang Ladlad’s definition of the
term “sexual orientation,” as well as its citation of the number of
Filipino men who have sex with men, as basis for the declaration
that the party espouses and advocates sexual immorality. This
position, how-
37
VOL. 618, APRIL 8, 2010 37
Ang Ladlad LGBT Party vs. Commission on Elections
ever, would deny homosexual and bisexual individuals a
fundamental element of personal identity and a legitimate
exercise of personal liberty. For, the “ability to [independently]
define one’s identity that is central to any concept of liberty”
cannot truly be exercised in a vacuum; we all depend on the
“emotional enrichment from close ties with others.”
Same; Same; Same; View that at the heart of liberty is the
right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life.—It has been said that
freedom extends beyond spatial bounds. Liberty presumes an
autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. These matters, involving
the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the due process clause. At the
heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the
State.
Same; Same; Same; View that a classification based on
gender or sexual orientation is a quasi-suspect classification, as to
trigger a heightened level of review.—The ponencia of Mr. Justice
Del Castillo refused to characterize homosexuals and bisexuals as a
class in themselves for purposes of the equal protection clause.
Accordingly, it struck down the assailed Resolutions using the most
liberal basis of judicial scrutiny, the rational basis test, according to
which government need only show that the challenged
classification is rationally related to serving a legitimate state
interest. I humbly submit, however, that a classification based on
gender or sexual orientation is a quasi-suspect classification, as
to trigger a heightened level of review.
Same; Same; Same; View that gay persons are entitled to
heightened constitutional protection despite some recent political
Page 23 of 267
progress.—It would not be difficult to conclude that gay persons are
entitled to heightened constitutional protection despite some
recent political progress. The discrimination that they have suffered
has been so pervasive and severe—even though their sexual
orientation has no bearing at all on their ability to contribute to or
perform in
38
3 SUPREME COURT REPORTS ANNOTATED
8 Same; Same; Same; Congress; View that the Constitution left
Ang Ladlad LGBT Party vs. Commission on Elections
society—that it is highly unlikely that legislative enactments
alone will suffice to eliminate that discrimination.
Same; Same; Same; View that any state action singling les-
bians, gays, bisexuals and trans-genders out for disparate
treatment is subject to heightened judicial scrutiny to ensure that it
is not the product of historical prejudice and stereotyping.—It is
therefore respectfully submitted that any state action singling
lesbians, gays, bisexuals and trans-genders out for disparate
treatment is subject to heightened judicial scrutiny to ensure that it
is not the product of historical prejudice and stereotyping.
Same; Same; Same; View that the position that the Lesbian,
Gay, Bisexual and Transgender (LGBT) community cannot
participate in the party-list system because it is not a “marginalized
and underrepresented sector” is belied by the Supreme Court
ruling in Ang Bagong Bayani-OFW Labor Party vs. COMELEC, where
the Court held that the enumeration of marginalized and
underrepresented sectors is not exclusive.—It has been suggested
that the LGBT community cannot participate in the party-list
system because it is not a “marginalized and underrepresented
sector” enumerated either in the Constitution or Republic Act No.
(RA) 7941. However, this position is belied by our ruling in Ang
Bagong Bayani-OFW Labor Party v. COMELEC, 359 SCRA 698
(2001), where we clearly held that the enumeration of marginalized
and underrepresented sectors in RA 7941 is not exclusive.
CORONA, J., Dissenting Opinion:
Constitutional Law; Election Law; Party-List System; View that
the party-list system is essentially a tool for the advancement of
social justice with the fundamental purpose of affording
opportunity to marginalized and underrepresented sectors to
participate in the shaping of public policy and the crafting of
national laws.—The party-list system is an innovation of the 1987
Constitution. It is essentially a tool for the advancement of social
CONSTI 2 CASES Free Exercise of Religion
justice with the fundamental purpose of affording opportunity to
marginalized and underrepresented sectors to participate in the
shaping of public policy and the crafting of national laws. It is
premised on the proposition that the advancement of the interests
of the marginalized sectors contributes to the advancement of the
common good and of our nation’s democratic ideals.39
VOL. 618, APRIL 8, 2010 39
Ang Ladlad LGBT Party vs. Commission on Elections
the matter of determining the groups or sectors that may qualify as
“marginalized” to the hands of Congress.—The Constitution left the
matter of determining the groups or sectors that may qualify as
“marginalized” to the hands of Congress. Pursuant to this
constitutional mandate, RA 7941 or the Party-List System Act was
enacted in 1995.
Same; Same; Same; View that the Supreme Court stressed
that the party-list system is reserved only for those sectors
marginalized and underrepresented in the past.—In Ang Bagong
Bayani-OFW Labor Party, 359 SCRA 698 (2001), the Court stressed
that the party-list system is reserved only for those sectors
marginalized and underrepresented in the past (e.g., labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers,
professionals and even those in the underground movement who
wish to come out and participate). They are those
sectors traditionally and historically marginalized and
deprived of an opportunity to participate in the formulation of
national policy although their sectoral interests are also
traditionally and historically regarded as vital to the
national interest.
Same; Same; Same; View that the concept of marginalized
and underrepresented sectors under the party-list scheme has
been carefully refined by concrete examples involving sectors
deemed to be significant in our legal tradition.—The concept of
marginalized and underrepresented sectors under the party-list
scheme has been carefully refined by concrete examples involving
sectors deemed to be significant in our legal tradition. They are
essentially sectors with a constitutional bond, that is, specific
sectors subject of specific provisions in the Constitution, namely,
labor, peasant, urban poor, indigenous cultural communities,
women, youth, veterans, fisherfolk, elderly, handicapped, overseas
workers and professionals.
Page 24 of 267
 Same; Same; Same; View that marginalized sectors should be
given a say in governance through the party-list system, not simply
because they desire to say something constructive but because
they deserve to be heard on account of their traditionally and
historically decisive role in Philippine society.—The long-muffled
voices of marginalized sectors must be heard because their
respective interests are intimately and indispensably woven into
the fabric of the na-
40
4 SUPREME COURT REPORTS ANNOTATED
0
Ang Ladlad LGBT Party vs. Commission on Elections
tional democratic agenda. The social, economic and political
aspects of discrimination and marginalization should not be
divorced from the role of a particular sector or group in the
advancement of the collective goals of Philippine society as a
whole. In other words, marginalized sectors should be given a say
in governance through the party-list system, not simply because
they desire to say something constructive but because they
deserve to be heard on account of their traditionally and historically
decisive role in Philippine society.
Same; Same; Same; View that the majority’s decision is
cryptic and wanting when it makes short shrift of the issue of
whether petitioner is a marginalized and underrepresented sector.
—The enumeration of sectors considered as marginalized and
underrepresented in the fundamental law and in the implementing
law (RA 7941) cannot be without significance. To ignore them is to
disregard the texts of the Constitution and of RA 7941. For, indeed,
the very first of Ang Bagong Bayani-OFW Labor Party’s eight
guidelines for screening party-list participants is this: the parties,
sectors or organizations “must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941.” For
this reason, I submit the majority’s decision is cryptic and wanting
when it makes short shrift of the issue of whether petitioner is a
marginalized and underrepresented sector in the following manner.
Same; Same; Same; View that marginalized sectors qualified
to participate in the party-list system but not mentioned in Section
5(2), Article VI are “such other sectors as may be provided by law”
duly enacted by Congress.—Marginalized sectors qualified to
participate in the party-list system but not mentioned in Section
5(2), Article VI are “such other sectors as may be provided by law”
duly enacted by Congress. It is also consistent with the basic canon
CONSTI 2 CASES Free Exercise of Religion
of statutory construction, ejusdem generis, which requires that a
general word or phrase that follows an enumeration of particular
and specific words of the same class, the general word or phrase
should be construed to include, or to be restricted to persons,
things or cases, akin to, resembling, or of the same kind or class as
those specifically mentioned.
Same; Same; Same; View that even assuming that petitioner
was able to show that the community of lesbians, gays, bisexuals
and transsexuals (LGBT) is underrepresented, it cannot be properly
con-
41
VOL. 618, APRIL 8, 2010 41
Ang Ladlad LGBT Party vs. Commission on Elections
sidered as marginalized under the party-list system.—Even
assuming that petitioner was able to show that the community of
lesbians, gays, bisexuals and transsexuals (LGBT) is
underrepresented, it cannot be properly considered as marginalized
under the party-list system. First, petitioner is not included in the
sectors mentioned in Section 5(2), Article VI of the Constitution and
Section 5 of RA 7941. Unless an overly strained interpretation is
resorted to, the LGBT sector cannot establish a close connection to
any of the said sectors. Indeed, petitioner does not even try to
show its link to any of the said sectors. Rather, it represents itself
as an altogether distinct sector with its own peculiar interests and
agenda.
Same; Same; Same; View that only sectors expressly or
closely related to those sectors mentioned in Section 5 of Republic
Act (RA) No. 7941 are qualified to participate in the party-list
system.—In this instance, Congress, in the exercise of its authority
under Section 5(2), Article VI of the Constitution, enacted RA 7941.
Sections 2, 3(d) and (5) of the said law instituted a policy when it
enumerated certain sectors as qualified marginalized and
underrepresented sectors under the party-list system. Respect for
that policy and fidelity to the Court’s duty in our scheme of
government require us to declare that only sectors expressly
mentioned or closely related to those sectors mentioned in Section
5 of RA 7941 are qualified to participate in the party-list system.
Same; Same; Same; View that until and unless Congress
amends the law to include the Lesbian, Gay, Bisexual and
Transgender (LGBTs) and other sectors in the party-list system,
deference to Congress’ determination on the matter is proper.—
The Court is called upon to exercise judicial restraint in this case by
Page 25 of 267
strictly adhering to, rather than expanding, legislative policy on the
matter of marginalized sectors as expressed in the enumeration in
Section 5 of RA 7941. The Court has no power to amend and
expand Sections 2, 3(d) and 5 of RA 7941 in the guise of
interpretation. The Constitution expressly and exclusively vests the
authority to determine “such other [marginalized] sectors” qualified
to participate in the party-list system to Congress. Thus, until and
unless Congress amends the law to include the LGBT and other
sectors in the party-list system, deference to Congress’
determination on the matter is proper.
Same; Same; Same; View that the party-list system was not
designed as a tool to advocate tolerance and acceptance of any
and all
42
4 SUPREME COURT REPORTS ANNOTATED
2 VOL. 618, APRIL 8, 2010
Ang Ladlad LGBT Party vs. Commission on Elections
socially misunderstood sectors.—While bigotry, social
stereotyping and other forms of discrimination must be given no
place in a truly just, democratic and libertarian society, the party-
list system has a well-defined purpose. The party-list system was
not designed as a tool to advocate tolerance and acceptance of any
and all socially misunderstood sectors. Rather, it is a platform for
the realization of the aspirations of marginalized sectors whose
interests are, by nature and history, also the nation’s but which
interests have not been sufficiently brought to public attention
because of these sectors’ underrepresentation.
Same; Same; Same; View that Congress was given by the
Constitution full discretion to determine what sectors may qualify
as marginalized and underrepresented, the Court’s task is to
respect that legislative determination by strictly adhering to it.—
Congress was given by the Constitution full discretion to determine
what sectors may qualify as marginalized and underrepresented.
The Court’s task is to respect that legislative determination by
strictly adhering to it. If we effectively and unduly expand such
congressional determination, we will be dabbling in policy-making,
an act of political will and not of judicial judgment.
ABAD, J., Separate Opinion:
Constitutional Law; Election Law; Party-List System; View that
the underlying policy of Republic Act No. 7941 or The Party-List
System Act is to give the marginalized and underrepresented
sectors of society an opportunity to take a direct part in enacting
CONSTI 2 CASES Free Exercise of Religion
the laws of the land.—The underlying policy of R.A. 7941 or The
Party-List System Act is to give the marginalized and
underrepresented sectors of society an opportunity to take a direct
part in enacting the laws of the land. In Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections (COMELEC), 359 SCRA 698
(2001), the Court laid down guidelines for accreditation, but these
seem to leave the COMELEC like everyone else even more
perplexed and dumbfounded about what organizations, clubs, or
associations can pass for sectoral parties with a right to claim a
seat in the House of Representatives. The Court can, in adjudicating
this case, unravel some of the difficulties.
Same; Same; Same; View that the Commission on Elections
(COMELEC) erred when it denied Ang Ladlad’s petition for sectoral
party accreditation on religious and moral grounds—the COMELEC
43
43
Ang Ladlad LGBT Party vs. Commission on Elections
has never applied these tests on regular candidates for
Congress.—Here, I fully agree that the COMELEC erred when it
denied Ang Ladlad’s petition for sectoral party accreditation on
religious and moral grounds. The COMELEC has never applied these
tests on regular candidates for Congress. There is no reason for it
to apply them on Ang Ladlad. But the ponencia already amply and
lucidly discussed this point.
Same; Same; Same; View that a reading of Ang Bagong Bayani
will show that, based on the Court’s reading, neither the
Constitution nor Republic Act No. 7941 intends the excessively
limited coverage that the Commission on Elections (COMELEC) now
suggests.—The COMELEC’s proposition imposes an unwarranted
restriction which is inconsistent with the purpose and spirit of the
Constitution and the law. A reading of Ang Bagong Bayani will show
that, based on the Court’s reading, neither the Constitution nor R.A.
7941 intends the excessively limited coverage that the COMELEC
now suggests. In fact, the Court said in that case that the list in R.A.
7941 is not exclusive. Thus, while the party-list system is not meant
for all sectors of society, it was envisioned as a social justice tool
for the marginalized and underrepresented in general.
Same; Same; Same; View that Congress did not provide a
definition of the term “marginalized and underrepresented.”—
Congress did not provide a definition of the term “marginalized and
underrepresented.” Nor did the Court dare provide one in its
decision in Ang Bagong Bayani. It is possible, however, to get a
Page 26 of 267
sense of what Congress intended in adopting such term. No doubt,
Congress crafted that term—marginalized and underrepresented—
from its reading of the concrete examples that the Constitution
itself gives of groupings that are entitled to accreditation. These
examples are the labor, the peasant, the urban poor, the
indigenous cultural minorities, the women, and the youth sectors.
Fortunately, quite often ideas are best described by examples of
what they are, which was what those who drafted the 1987
Constitution did, rather than by an abstract description of them.
Same; Same; Same; View that an interpretation that will allow
concretely or specifically defined groups to seek election as a
separate party-list sector by itself will result in riot and redundancy
in the mix of sectoral parties grabbing seats in the House of
Representatives.—An interpretation that will allow concretely or
specifically defined
44
4 SUPREME COURT REPORTS ANNOTATED
4 matter much. That would be a mere shadow of freedom. The
Ang Ladlad LGBT Party vs. Commission on Elections
groups to seek election as a separate party-list sector by itself
will result in riot and redundancy in the mix of sectoral parties
grabbing seats in the House of Representatives. It will defeat
altogether the objectives of the party-list system. If they can
muster enough votes, the country may have a party-list of pedicab
drivers and another of tricycle drivers. There will be an irrational
apportionment of party-list seats in the legislature.
Same; Same; Same; View that applying the universally
accepted estimate that one out of every 10 persons is a Lesbian,
Gay, Bisexual and Transgender (LGBTs) of a certain kind, the
Filipino LGBTs should now stand at about 8.7 million.—In this
case, Ang Ladlad represents men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered persons
(LGBTs). Applying the universally accepted estimate that one out of
every 10 persons is an LGBT of a certain kind, the Filipino LGBTs
should now stand at about 8.7 million. Despite this, however, they
are by and large, subtly if not brutally, excluded from the
mainstream, discriminated against, and persecuted. That the
COMELEC denied Ang Ladlad’s petition on religious and moral
grounds is proof of this discrimination.
Same; Same; Same; View that Ang Ladlad has amply proved
that it meets the requirements for sectoral party accreditation—
their members are in the vulnerable class like the women and the
CONSTI 2 CASES Free Exercise of Religion
youth.—Ang Ladlad has amply proved that it meets the
requirements for sectoral party accreditation. Their members are in
the vulnerable class like the women and the youth. Ang
Ladlad represents a narrow definition of its class (LGBTs) rather
than a concrete and specific definition of a sub-group within the
class (group of gay beauticians, for example). The people that Ang
Ladlad seeks to represent have a national presence.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
F.D. Nicholas B. Pichay, Clara Rita A. Padilla and Ibarra M.
Gutierrez for petitioner.
R.A.V. Saguisag for intervenor Epifanio D. Salonga, Jr.
45
VOL. 618, APRIL 8, 2010 45
Ang Ladlad LGBT Party vs. Commission on Elections
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not
test of its substance is the right to differ as to things that
touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of
Education v. Barnette1
One unavoidable consequence of everyone having the freedom
to choose is that others may make different choices—choices we
would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different, and
the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed,
our democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.
Since ancient times, society has grappled with deep
disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony
among those theoretically opposed is an insurmountable goal. Yet
herein lies the paradox—philosophical justifications about what is
moral are indispensable and yet at the same time powerless to
create agreement. This Court recognizes, however, that practical
solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This
Page 27 of 267
will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
_______________
1 319 U.S. 624, 640-42 (1943).
46
46 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of
Court, with an application for a writ of preliminary mandatory
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated
November 11, 20092 (the First Assailed Resolution) and December
16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the
COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as
the Party-List System Act.4
Ang Ladlad is an organization composed of men and women
who identify themselves as lesbians, gays, bisexuals, or trans-
gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first
applied for registration with the COMELEC in 2006. The application
for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang
Ladladagain filed a Petition5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT
community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and
gender identity; that LGBTs are victims of exclusion, discrimination,
and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang
Ladladcomplied with the 8-point guidelines enunciated by this
Court in Ang Bagong
_______________
2 Rollo, pp. 33-40.
3 Id., at pp. 41-74.
CONSTI 2 CASES Free Exercise of Religion
4 AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES
THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS
THEREFOR (1995).
5 Rollo, pp. 89-101.
47
VOL. 618, APRIL 8, 2010 47
Ang Ladlad LGBT Party vs. Commission on Elections
Bayani-OFW Labor Party v. Commission on Elections.6 Ang
Ladladlaid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform
of governance.7
On November 11, 2009, after admitting the petitioner’s
evidence, the COMELEC (Second Division) dismissed the Petition on
moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation
and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
rela-
_______________
6 412 Phil. 308; 359 SCRA 698 (2001).
7 Ang Ladlad outlined its platform, viz.:
As a party-list organization, Ang Ladlad is willing to research,
introduce, and work for the passage into law of legislative
measures under the following platform of government:
a)  introduction and support for an anti-discrimination bill that
will ensure equal rights for LGBTs in employment and civil life;
b) support for LGBT-related and LGBT-friendly businesses that
will contribute to the national economy;
c) setting up of micro-finance and livelihood projects for poor
and physically challenged LGBT Filipinos;
d)  setting up of care centers that will take care of the medical,
legal, pension, and other needs of old and abandoned LGBTs. These
centers will be set up initially in the key cities of the country; and
Page 28 of 267
 e)  introduction and support for bills seeking the repeal of laws
used to harass and legitimize extortion against the LGBT
community. Rollo, p. 100.
48
48 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
tions with, individuals of a different gender, of the same
gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious beliefs. In
Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for
even their women did change the natural use into that which
is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which
was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women
“ye are indeed a people transgressing beyond bounds.”
(7.81) “And we rained down on them a shower (of brimstone):
Then see what was the end of those who indulged in sin and
crime!” (7:84) “He said: “O my Lord! Help Thou me against
people who do mischief” (29:30).
As correctly pointed out by the Law Department in its Comment
dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality
as indicated in the Petition’s par. 6F: ‘Consensual partnerships
or relationships by gays and lesbians who are already of age’.
It is further indicated in par. 24 of the Petition which waves
for the record: ‘In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit,
license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are
deemed part of the requirement to be complied with for
accreditation.
ANG LADLAD collides with Article 695 of the Civil Code
which defines nuisance as ‘Any act, omission, establishment,
CONSTI 2 CASES Free Exercise of Religion
business, condition of property, or anything else which x x x
(3) shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The
contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided
49
VOL. 618, APRIL 8, 2010 49
Ang Ladlad LGBT Party vs. Commission on Elections
they are not contrary to law, morals, good customs, public
order or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy’ are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as
follows:
Art. 201. Immoral doctrines, obscene publications and
exhibitions, and indecent shows.—The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed
upon:
1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
2.  (a) The authors of obscene literature, published with
their knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment
selling the same;
(b)  Those who, in theaters, fairs, cinematographs or any
other place, exhibit indecent or immoral plays, scenes, acts
or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall
include those which: (1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion;
(4) tend to abet traffic in and use of prohibited drugs; and (5)
are contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to
morals.
Page 29 of 267
 Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it “or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections.”50
50 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
Furthermore, should this Commission grant the petition, we will
be exposing our youth to an environment that does not conform to
the teachings of our faith. Lehman Strauss, a famous bible teacher
and writer in the U.S.A. said in one article that “older practicing
homosexuals are a threat to the youth.” As an agency of the
government, ours too is the State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and
spiritual degradation.”8
When Ang Ladlad sought reconsideration,9 three commissioners
voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad’s Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N.
Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the
tie and speaking for the majority in his Separate Opinion, upheld
the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven its
under-representation and marginalization, it cannot be said
that Ladlad’s expressed sexual orientations per se would benefit
the nation as a whole.
Section 2 of the party-list law unequivocally states that the
purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
_______________
8 Id., at pp. 36-39. Citations omitted. Italics and underscoring in
original text.
CONSTI 2 CASES Free Exercise of Religion
9 Id., at pp. 77-88.
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VOL. 618, APRIL 8, 2010 51
Ang Ladlad LGBT Party vs. Commission on Elections
If entry into the party-list system would depend only on the
ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into the
party-list race. But that is not the intention of the framers of the
law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are
also the nation’s—only that their interests have not been brought
to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will
remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a “special class” of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right,
and that “nothing in the U.S. Constitution discloses a comparable
intent to protect or promote the social or legal equality of
homosexual relations,” as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and
acceptance of LGBT’s is elevated, there can be no denying
that Ladlad constituencies are still males and females, and they
will remain either male or female protected by the same Bill
of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing
on Ladlad Christian or Muslim religious practices. Neither is there
any attempt to any particular religious group’s moral rules
on Ladlad. Rather, what are being adopted as moral parameters
and precepts are generally accepted public morals. They are
Page 30 of 267
possibly religious-based, but as a society, the Philippines 11 Id., at p. 121.
cannot ignore its more than 500 12 Id., at pp. 129-132.
52 53
52 SUPREME COURT REPORTS ANNOTATED VOL. 618, APRIL 8, 2010 53
Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad LGBT Party vs. Commission on Elections
years of Muslim and Christian upbringing, such that some Comment in support of petitioner’s application. 13 Thus, in order to
moral precepts espoused by said religions have sipped [sic] give COMELEC the opportunity to fully ventilate its position, we
into society and these are not publicly accepted moral required it to file its own comment. 14 The COMELEC, through its Law
norms. Department, filed its Comment on February 2, 2010.15
V. Legal Provisions In the meantime, due to the urgency of the petition, we issued a
But above morality and social norms, they have become part of temporary restraining order on January 12, 2010, effective
the law of the land. Article 201 of the Revised Penal Code imposes immediately and continuing until further orders from this Court,
the penalty of prision mayor upon “Those who shall publicly directing the COMELEC to cease and desist from implementing the
expound or proclaim doctrines openly contrary to public morals.” It Assailed Resolutions. 16
penalizes “immoral doctrines, obscene publications and exhibition Also, on January 13, 2010, the Commission on Human Rights
and indecent shows.” “Ang Ladlad” apparently falls under these (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
legal provisions. This is clear from its Petition’s paragraph 6F: attaching thereto its Comment-in-Intervention.17 The CHR opined
“Consensual partnerships or relationships by gays and lesbians who that the denial of Ang Ladlad’s petition on moral grounds violated
are already of age’ It is further indicated in par. 24 of the Petition the standards and principles of the Constitution, the Universal
which waves for the record: ‘In 2007, Men Having Sex with Men or Declaration of Human Rights (UDHR), and the International
MSMs in the Philippines were estimated as 670,000. Moreoever, Covenant on Civil and Political Rights (ICCPR). On January 19, 2010,
Article 694 of the Civil Code defines “nuisance” as any act, we granted the CHR’s motion to intervene.
omission x x x or anything else x x x which shocks, defies or On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
disregards decency or morality Intervene18 which motion was granted on February 2, 2010.19
x x x.” These are all unlawful.”10 The Parties’ Arguments
On January 4, 2010, Ang Ladlad filed this Petition, praying that Ang Ladlad argued that the denial of accreditation, insofar as it
the Court annul the Assailed Resolutions and direct the COMELEC to justified the exclusion by using religious dogma, violated the
grant Ang Ladlad’s application for accreditation. Ang Ladlad also constitutional guarantees against the establishment of religion.
sought the issuance ex parte of a preliminary mandatory injunction Petitioner also claimed that the Assailed Resolutions
against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by _______________
January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor 13 Id., at pp. 151-283.
General (OSG) to file its Comment on behalf of COMELEC not later 14 Id., at p. 284.
than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, 15 Id., at pp. 301-596.
however, the OSG filed a Motion for Extension, requesting that it be 16 Id., at p. 126.
given until January 16, 2010 to Comment. 12Somewhat surprisingly, 17 Id., at pp. 133-160.
the OSG later filed a 18 Id., at pp. 288-291.
19 Id., at p. 296.
_______________ 54
54 SUPREME COURT REPORTS ANNOTATED
10 Id., at pp. 50-54. Emphasis and underscoring supplied.
Ang Ladlad LGBT Party vs. Commission on Elections

CONSTI 2 CASES Free Exercise of Religion Page 31 of 267

contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that
the COMELEC erred in denying petitioner’s application for
registration since there was no basis for COMELEC’s allegations of
immorality. It also opined that LGBTs have their own special
interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the
purported violations of petitioner’s freedom of speech, expression,
and assembly were concerned, the OSG maintained that there had
been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not
have a concrete and genuine national political agenda to benefit
the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is
not among the sectors enumerated by the Constitution and RA
7941, and that petitioner made untruthful statements in its petition
when it alleged its national existence contrary to actual verification
reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements
of the Constitution and Republic
Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration
on the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to any
of the sectors in the enumeration.55
VOL. 618, APRIL 8, 2010 55
Ang Ladlad LGBT Party vs. Commission on Elections
Respondent mistakenly opines that our ruling in Ang Bagong
Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system.
As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 “the enumeration of marginalized and
CONSTI 2 CASES Free Exercise of Religion
under-represented sectors is not exclusive.” The crucial element is
not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was
shown that “save for a few isolated places in the country, petitioner
does not exist in almost all provinces in the country.” 21
_______________
20 Supra note 6.
21  It appears that on September 4, 2009, the Second Division
directed the various COMELEC Regional Offices to verify the
existence, status, and capacity of petitioner. In its Comment,
respondent submitted copies of various reports stating that ANG
LADLAD LGBT or LADLAD LGBT did not exist in the following areas:
Batangas (October 6, 2009); Romblon (October 6, 2009); Palawan
(October 16, 2009); Sorsogon (September 29, 2009); Cavite,
Marinduque, Rizal (October 12, 2009); Basilan, Maguindanao, Lanao
del Sur, Sulu, Tawi Tawi (October 19, 2009); Biliran, Leyte, Southern
Leyte, Samar, Eastern Samar, Northern Samar (October 19, 2009);
Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate,
Sorsogon (October 25, 2009); Ilocos Sur, Ilocos Norte, La Union,
Pangasinan (October 23, 2009); North Cotabato, Sarangani, South
Cotabato, Sultan Kudarat (October 23, 2009); Aklan, Antique, Iloilo
and Negros Occidental (October 25, 2009); Bohol, Cebu, Siquijor
(October 24, 2009); Negros Oriental (October 26, 2009); Cordillera
Adminis-
56
56 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
This argument that “petitioner made untruthful statements in its
petition when it alleged its national existence” is a new one;
previously, the COMELEC claimed that petitioner was “not being
truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections.” Nowhere was this
ground for denial of petitioner’s accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite
Page 32 of 267
curious, considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to the
issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to
procedural due process.
Nonetheless, we find that there has been no misrepresentation.
A cursory perusal of Ang Ladlad’s initial petition shows that it never
claimed to exist in each province of the Philippines. Rather,
petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in
its electronic discussion group. 22 Ang Ladlad also represented itself
to be “a national LGBT umbrella organization with affiliates around
the Philippines composed of the following LGBT networks:”
_______________
trative Region (October 30, 2009); Agusan del Norte, Agusan
del Sur, Dinagat Islands, Surigao del Norte, Surigao del Sur
(October 26, 2009); Cagayan de Oro, Bukidnon, Camiguin, Misamis
Oriental, Lanao del Norte (October 31, 2009); Laguna (November 2,
2009); Occidental Mindoro, Oriental Mindoro (November 13, 2009);
Quezon (November 24, 2009); Davao City, Davao del Sur, Davao
del Norte, Compostela Valley, Davao Oriental (November 19, 2009);
Caloocan, Las Pinas, Makati, Mandaluyong, Manila, Marikina,
Muntinlupa, Navotas, Parañaque, Pasay, Pasig, Pateros, Quezon
City, San Juan, Taguig, Valenzuela (December 16, 2009). Rollo, pp.
323-596.
22 Id., at p. 96.
57
VOL. 618, APRIL 8, 2010 57
Ang Ladlad LGBT Party vs. Commission on Elections
€ Abra Gay Association
€ Aklan Butterfly Brigade (ABB) – Aklan
€ Albay Gay Association
€ Arts Center of Cabanatuan City – Nueva Ecija
€ Boys Legion – Metro Manila
€ Cagayan de Oro People Like Us (CDO PLUS)
€ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
€ Cebu Pride – Cebu City
€ Circle of Friends
CONSTI 2 CASES Free Exercise of Religion
€ Dipolog Gay Association – Zamboanga del Norte
€ Gay, Bisexual, & Transgender Youth Association (GABAY)
€ Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila
€  Gay Men’s Support Group (GMSG) – Metro Manila
€ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
€ Iloilo City Gay Association – Iloilo City
€ Kabulig Writer’s Group – Camarines Sur
€  Lesbian Advocates Philippines, Inc. (LEAP)
€ LUMINA – Baguio City
€ Marikina Gay Association – Metro Manila
€ Metropolitan Community Church (MCC) – Metro Manila
€ Naga City Gay Association – Naga City
€ ONE BACARDI
€ Order of St. Aelred (OSAe) – Metro Manila
€ PUP LAKAN
€ RADAR PRIDEWEAR
€ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
€ San Jose del Monte Gay Association – Bulacan
€ Sining Kayumanggi Royal Family – Rizal
€ Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
€ Soul Jive – Antipolo, Rizal
€ The Link – Davao City
€ Tayabas Gay Association – Quezon
€ Women’s Bisexual Network – Metro Manila
€ Zamboanga Gay Association – Zamboanga City23
_______________
23 Id., at pp. 96-97.
58
58 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
Since the COMELEC only searched for the names ANG
LADLAD LGBT or LADLAD LGBT, it is no surprise that they found
that petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even
exist in Quezon City, which is registered as Ang Ladlad’s principal
place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
Page 33 of 267
accreditation. Indeed, aside from COMELEC’s moral objection and
the belated allegation of non-existence, nowhere in the records has
the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack
thereof.
Religion as the Basis for Refusal
to Accept Ang Ladlad’s Petition
for Registration
Our Constitution provides in Article III, Section 5 that “[n]o law
shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious
matters.”24Clearly, “governmental reliance on religious justification
is inconsistent with this policy of neutrality.” 25 We thus find that it
was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the exclusion
of Ang Ladlad.
_______________
24 BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY 346 (2009).
25 Estrada v. Escritor, 455 Phil. 411; 408 SCRA 1 (2003), citing
Smith, S., “The Rise and Fall of Religious Freedom in Constitutional
Discourse,” 140 UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 149, 160
(1991).
59
VOL. 618, APRIL 8, 2010 59
Ang Ladlad LGBT Party vs. Commission on Elections
Rather than relying on religious belief, the legitimacy of the
Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26
“x x x The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. “Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms.” Otherwise, if
CONSTI 2 CASES Free Exercise of Religion
government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious
belief, i.e., to a “compelled religion,” anathema to religious
freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby
also tacitly disapprove contrary religious or non-religious views that
would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class
citizens.
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is “detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society” and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious
opinions and moral codes with a compelling influence on them; the
human mind endeavors to regulate the temporal and spiritual
institutions of society in a uniform
_______________
26 455 Phil. 411; 408 SCRA 1 (2003).
60
60 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
manner, harmonizing earth with heaven. Succinctly put, a law could
be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine
constitution’s religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that
Page 34 of 267
government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, 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.”27
Public Morals as a Ground to Deny Ang
Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it
has long been transplanted into generally accepted public morals.
The COMELEC argues:
“Petitioner’s accreditation was denied not necessarily because
their group consists of LGBTs but because of the danger it poses to
the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our
civilized society. Any society without a set of moral precepts is in
danger of losing its own existence.”28
We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the
brunt of societal disapproval. It is not difficult to imagine the
reasons behind this censure—religious beliefs, convictions about
the preservation of marriage, family, and
_______________
27 Id., at pp. 588-589; pp. 180-182.
28 Rollo, p. 315.
61
VOL. 618, APRIL 8, 2010 61
Ang Ladlad LGBT Party vs. Commission on Elections
procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines
has not seen fit to criminalize homosexual conduct. Evidently,
therefore, these “generally accepted public morals” have not been
convincingly transplanted into the realm of law. 29
The Assailed Resolutions have not identified any specific overt
immoral act performed by Ang Ladlad. Even the OSG agrees that
“there should have been a finding by the COMELEC that the group’s
CONSTI 2 CASES Free Exercise of Religion
members have committed or are committing immoral acts.” 30 The
OSG argues:
“x x x A person may be sexually attracted to a person of the
same gender, of a different gender, or more than one gender, but
mere attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the “straights” and
the gays.” Certainly this is not the intendment of the law.”31
Respondent has failed to explain what societal ills are sought to
be prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position that
petitioner’s admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We, of
course, do not suggest that the
_______________
29 In Anonymous v. Radam, A.M. No. P-07-2333, December 19,
2007, 541 SCRA 12, citing Concerned Employee v. Mayor, A.M. No.
P-02-1564, 23 November 2004, 443 SCRA 448, we ruled that
immorality cannot be judged based on personal bias, specifically
those colored by particular mores. Nor should it be grounded on
“cultural” values not convincingly demonstrated to have been
recognized in the realm of public policy expressed in the
Constitution and the laws. At the same time, the constitutionally
guaranteed rights (such as the right to privacy) should be observed
to the extent that they protect behavior that may be frowned upon
by the majority.
30 Rollo, pp. 178.
31 Id., at pp. 179-180.
62
62 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of
intentions, situate morality on one end of an argument or another,
without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of morality is robbed of all value.
Page 35 of 267
Clearly then, the bare invocation of morality will not remove an
issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of
our penal and civil laws flimsy, at best; disingenuous, at worst.
Article 694 of the Civil Code defines a nuisance as “any act,
omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality,” the
remedies for which are a prosecution under the Revised Penal Code
or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code,
on the other hand, requires proof beyond reasonable doubt to
support a criminal conviction. It hardly needs to be emphasized
that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability
or culpability.
As such, we hold that moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals
from participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because
of any particular
_______________
32 CIVIL CODE OF THE PHILIPPINES, Art. 699.
63
VOL. 618, APRIL 8, 2010 63
Ang Ladlad LGBT Party vs. Commission on Elections
morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our
Constitution, which provides “nor shall any person be denied equal
protection of the laws,” courts have never interpreted the provision
as an absolute prohibition on classification. “Equality,” said
Aristotle, “consists in the same treatment of similar persons.” 33 The
equal protection clause guarantees that no person or class of
persons shall be deprived of the same protection of laws which is
CONSTI 2 CASES Free Exercise of Religion
enjoyed by other persons or other classes in the same place and in
like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens
a fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end.35 In Central
_______________
33 POLITICS VII. 14.
34 Abakada Guro Party v. Executive Secretary, G.R. No. 168056,
September 1, 2005, 2005, 469 SCRA 1, 139.
35 IN BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY 139-140 (2009), Fr. Joaquin Bernas, S.J. writes:
For determining the reasonableness of classification, later
jurisprudence has developed three kinds of test[s] depending on
the subject matter involved. The most demanding is the strict
scrutiny test which requires the government to show that the
challenged classification serves a compelling state interest and that
the classification is necessary to serve that interest. This [case] is
used in cases involving classifications based on race, national
origin, religion, alienage, denial of the right to vote, interstate
migration, access to courts, and other rights recognized as
fundamental.
Next is the intermediate or middle-tier scrutiny test which
requires government to show that the challenged classification
serves an important state interest and that the classification is at
least substantially related to serving that interest. This is applied to
suspect classifications like gender or illegitimacy.
64
64 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36we
declared that “[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the ‘rational basis’ test,
coupled with a deferential attitude to legislative classifications and
a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution.”37
The COMELEC posits that the majority of the Philippine
population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify
the petitioner. Unfortunately for the respondent, the Philippine
Page 36 of 267
electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is
as the COMELEC describes it, the asserted state interest here—that
is, moral disapproval of an unpopular minority—is not a legitimate
state interest that is sufficient to satisfy rational basis review under
the equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a
disfavored group.
From the standpoint of the political process, the lesbian, gay,
bisexual, and transgender have the same interest in participating in
the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general appli-
_______________
The most liberal is the minimum or rational basis scrutiny
according to which government need only show that the challenged
classification is rationally related to serving a legitimate state
interest. This is the traditional rationality test and it applies to all
subjects other than those listed above.
36 487 Phil. 531, 583; 446 SCRA 299, 370 (2004).
37 Id., at p. 584; p. 370. See also Mid-States Freight Lines v.
Bates, 111 N.Y.S. 2d 568.
65
VOL. 618, APRIL 8, 2010 65
Ang Ladlad LGBT Party vs. Commission on Elections
cation should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other
marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause.38 We are not prepared to
single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence
CONSTI 2 CASES Free Exercise of Religion
to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and
that the COMELEC made “an unwarranted and impermissible
classification not justified by the circumstances of the case.”
Freedom of Expression and Association
Under our system of laws, every group has the right to promote
its agenda and attempt to persuade society of the validity of its
position through normal democratic means. 39 It is in the public
square that deeply held convictions and differing opinions should
be distilled and deliberated upon. As we held in Estrada v.
Escritor:40
_______________
38 The OSG argues that “[w]hile it is true that LGBTs are
immutably males and females, and they are protected by the same
Bill of Rights that applies to all citizens alike, it cannot be denied
that as a sector, LGBTs have their own special interests and
concerns.” Rollo, p. 183.
39 Article III, Section 4 of the Constitution provides that “[n]o
law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.”
40 Supra note 26.
66
66 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
“In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free, every
opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers of
opinion, including opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the
Page 37 of 267
mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies—
including protection of religious freedom “not only for a minority,
however small—not only for a majority, however large—but for
each of us”—the majority imposes upon itself a self-denying
ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.”
Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to
impose its views on the populace. Otherwise stated, the COMELEC
is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored
one.
This position gains even more force if one considers that
homosexual conduct is not illegal in this country. It follows that both
expressions concerning one’s homosexuality and the activity of
forming a political association that supports LGBT individuals are
protected as well.
Other jurisdictions have gone so far as to categorically rule that
even overwhelming public perception that homosexual
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Ang Ladlad LGBT Party vs. Commission on Elections
conduct violates public morality does not justify criminalizing
same-sex conduct.41 European and United Nations judicial
_______________
41 In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme
Court first upheld the constitutionality of a Georgia sodomy law
that criminalized oral and anal sex in private between consenting
adults when applied to homosexuals. Seventeen years later the
Supreme Court directly overruled Bowers in Lawrence v. Texas, 539
U.S. 558 (2003), holding that “Bowers was not correct when it was
decided, and it is not correct today.”
In Lawrence, the US Supreme Court has held that the liberty
protected by the Constitution allows homosexual persons the right
CONSTI 2 CASES Free Exercise of Religion
to choose to enter into intimate relationships, whether or not said
relationships were entitled to formal or legal recognition.
Our prior cases make two propositions abundantly clear. First,
the fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice; neither history nor
tradition could save a law prohibiting miscegenation from
constitutional attack. Second, individual decisions by married
persons, concerning the intimacies of their physical relationship,
even when not intended to produce offspring, are a form of
“liberty” protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to intimate choices
by unmarried as well as married persons.
The present case does not involve minors. It does not involve
persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does not
involve public conduct or prostitution. It does not involve whether
the government must give formal recognition to any relationship
that homosexual persons seek to enter. The case does involve two
adults who, with full and mutual consent from each other, engaged
in sexual practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty under the
Due Process Clause gives them the full right to engage in their
conduct without intervention of the government. “It is a promise of
the Constitution that there is a realm of personal liberty which the
government may not enter.” The Texas statute furthers no
legitimate state
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68 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
decisions have ruled in favor of gay rights claimants on both
_______________
interest which can justify its intrusion into the personal and
private life of the individual.
In similar fashion, the European Court of Human Rights has ruled
that the avowed state interest in protecting public morals did not
justify interference into private acts between homosexuals.
In Norris v. Ireland, the European Court held that laws criminalizing
Page 38 of 267
same-sex sexual conduct violated the right to privacy enshrined in
the European Convention.
The Government are in effect saying that the Court is precluded
from reviewing Ireland’s observance of its obligation not to exceed
what is necessary in a democratic society when the contested
interference with an Article 8 (Art. 8) right is in the interests of the
“protection of morals.” The Court cannot accept such an
interpretation. x x x.
x x x The present case concerns a most intimate aspect of
private life. Accordingly, there must exist particularly serious
reasons before interferences on the part of public authorities can
be legitimate x x x.
x x x Although members of the public who regard homosexuality
as immoral may be shocked, offended or disturbed by the
commission by others of private homosexual acts, this cannot on its
own warrant the application of penal sanctions when it is
consenting adults alone who are involved. (Norris v.
Ireland (judgment of October 26, 1988, Series A no. 142, pp. 20-21,
§ 46); Marangos v. Cyprus (application no. 31106/96, Commission’s
report of 3 December 1997, unpublished)).
The United Nations Human Rights Committee came to a similar
conclusion in Toonen v. Australia (Comm. No. 488/1992 U.N. GAOR
Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/
1992 [1994]), involving a complaint that Tasmanian laws
criminalizing consensual sex between adult males violated the right
to privacy under Article 17 of the International Covenant on Civil
and Political Rights. The Committee held:
x x x it is undisputed that adult consensual sexual activity in
private is covered by the concept of ‘privacy’ x x x any interference
with privacy must be proportional to the end sought and be
necessary in the circumstances of any given case.
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Ang Ladlad LGBT Party vs. Commission on Elections
privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts. 42 To the
extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding
on Philippine courts, may nevertheless have persuasive influence
on the Court’s analysis.
CONSTI 2 CASES Free Exercise of Religion
In the area of freedom of expression, for instance, United States
courts have ruled that existing free speech doctrines protect gay
and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by “something more than
a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.”43
With respect to freedom of association for the advancement of
ideas and beliefs, in Europe, with its vibrant human rights tradition,
the European Court of Human Rights (ECHR) has repeatedly stated
that a political party may campaign for a
_______________
42 See Toonen v. Australia, (Comm. No. 488/1992 U.N. GAOR
Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/1992
(1994)); Dudgeon v. United Kingdom, 45 Eur. H.R. Rep. 52 (1981)
(decision by the European Court of Human Rights, construing the
European Convention on Human Rights and Fundamental
Freedoms); Norris v. Ireland, 13 Eur. Ct. H.R. 186 (1991); Modinos v.
Cyprus, 16 Eur. H.R. Rep. 485 (1993). See also, L. and V. v
Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-I
71; (2003) 37 EHRR 39), where the European Court considered that
Austria’s differing age of consent for heterosexual and homosexual
relations was discriminatory; it ‘embodied a predisposed bias on
the part of a heterosexual majority against a homosexual minority’,
which could not ‘amount to sufficient justification for the differential
treatment any more than similar negative attitudes towards those
of a different race, origin or colour’.
43 See Fricke v. Lynch, 491 F. Supp. 381 (1980) and Gay
Student Services v. Texas A&M University, 737 F. 2d 1317 (1984).
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70 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
change in the law or the constitutional structures of a state if it
uses legal and democratic means and the changes it proposes are
consistent with democratic principles. The ECHR has emphasized
that political ideas that challenge the existing order and whose
realization is advocated by peaceful means must be afforded a
proper opportunity of expression through the exercise of the right
of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the
Page 39 of 267
population.44 A political group should not be hindered solely
because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts forward
policies that are incompatible
_______________
44 Case of the United Macedonian Organisation Ilinden and
Others v. Bulgaria Application No. 5941/00; Judgment of January 20,
2006. Note that in Baczkowski and Others v. Poland, Application No.
1543/06; Judgment of May 3, 2007, the ECHR unanimously ruled
that the banning of an LGBT gay parade in Warsaw was a
discriminatory violation of Article 14 of the ECHR, which provides:
The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.
It also found that banning LGBT parades violated the group’s
freedom of assembly and association. Referring to the hallmarks of
a “democratic society,” the Court has attached particular
importance to pluralism, tolerance and broadmindedness. In that
context, it has held that although individual interests must on
occasion be subordinated to those of a group, democracy does not
simply mean that the views of the majority must always prevail: a
balance must be achieved which ensures the fair and proper
treatment of minorities and avoids any abuse of a dominant
position.
45 Case of Freedom & Democracy Party (OZDEP) v.
Turkey, Application No. 23885/94; Judgment of December 8, 1999.
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Ang Ladlad LGBT Party vs. Commission on Elections
with democracy does it fall outside the protection of the freedom of
association guarantee.46
_______________
CONSTI 2 CASES Free Exercise of Religion
46  Article 11 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention)
provides:
1.  Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right to
form and to join trade unions for the protection of his interests.
2.  No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or public
safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of
others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the
armed forces, of the police or of the administration of the State.
Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953,
as amended by Protocols Nos. 3, 5, 8, and 11 which entered into
force on September 21, 1970, December 20, 1971, January 1, 1990,
and November 1, 1998, respectively.
* Note that while the state is not permitted to discriminate
against homosexuals, private individuals cannot be compelled to
accept or condone homosexual conduct as a legitimate form of
behavior. In Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc. (515 U.S. 557 [1995]), the US Supreme Court
discussed whether anti-discrimination legislation operated to
require the organizers of a private St. Patrick’s Day parade to
include among the marchers an Irish-American gay, lesbian, and
bisexual group. The court held that private citizens organizing a
public demonstration may not be compelled by the state to include
groups that impart a message the organizers do not want to be
included in their demonstration. The court observed:
“[A] contingent marching behind the organization’s
banner would at least bear witness to the fact that some Irish
are gay, lesbian, or bisexual, and the presence of the
organized marchers would suggest their view that people of
their sexual orientations have as much claim to unqualified
social acceptance as heterosexuals x x x. The parade’s
organizers may not
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Page 40 of 267
 We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They
are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal
fervor that relationships between individuals of the same sex are
morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration
the values of other members of the community.
Of course, none of this suggests the impending arrival of a
golden age for gay rights litigants. It well may be that this Decision
will only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that
_______________
believe these facts about Irish sexuality to be so, or they may
object to unqualified social acceptance of gays and lesbians or
have some other reason for wishing to keep GLIB’s message out of
the parade. But whatever the reason, it boils down to the choice of
a speaker not to propound a particular point of view, and that
choice is presumed to lie beyond the government’s power to
control.”
So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]),
the US Supreme Court held that the Boy Scouts of America could
not be compelled to accept a homosexual as a scoutmaster,
because “the Boy Scouts believe that homosexual conduct is
inconsistent with the values it seeks to instill in its youth members;
it will not “promote homosexual conduct as a legitimate form of
behavior.”
When an expressive organization is compelled to associate with
a person whose views the group does not accept, the organization’s
message is undermined; the organization is understood to
embrace, or at the very least tolerate, the views of the persons
linked with them. The scoutmaster’s presence “would, at the very
least, force the organization to send a message, both to the youth
members and the world, that the Boy Scouts accepts homosexual
conduct as a legitimate form of behavior.”
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CONSTI 2 CASES Free Exercise of Religion
Ang Ladlad LGBT Party vs. Commission on Elections
public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality
through this Decision.
The OSG argues that since there has been neither prior restraint
nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
“There was no utterance restricted, no publication censored, or
any assembly denied. [COMELEC] simply exercised its authority to
review and verify the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This lawful exercise
of duty cannot be said to be a transgression of Section 4, Article III
of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive
the members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said denial. In
fact, the right to vote is a constitutionally-guaranteed right which
cannot be limited.
As to its right to be elected in a genuine periodic election,
petitioner contends that the denial of Ang Ladlad’s petition has the
clear and immediate effect of limiting, if not outrightly nullifying the
capacity of its members to fully and equally participate in public life
through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a
right but a privilege subject to limitations imposed by law. x x x” 47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and—as
advanced by the OSG itself—the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been
_______________
47 Rollo, pp. 197-199.
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Page 41 of 267
precluded, because of COMELEC’s action, from publicly expressing
its views as a political party and participating on an equal basis in
the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of
petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in
scope and promise, international human rights law, in particular,
has grown dynamically in its attempt to bring about a more just
and humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international
human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms
may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In particular, we
explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and
the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that
laws of general application relating to elections be applied equally
to all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR,
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Ang Ladlad LGBT Party vs. Commission on Elections
the ICCPR Human Rights Committee has opined that the reference
to “sex” in Article 26 should be construed to include “sexual
orientation.”48 Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be
prohibited under various international agreements. 49
CONSTI 2 CASES Free Exercise of Religion
_______________
48 In Toonen v. Australia, supra note 42, the Human Rights
Committee noted that “in its view the reference to ‘sex’ in Articles
2, paragraph 2, and 26 is to be taken as including sexual
orientation.”
49  The Committee on Economic, Social and Cultural Rights
(CESCR) has dealt with the matter in its General Comments, the
interpretative texts it issues to explicate the full meaning of the
provisions of the Covenant on Economic, Social and Cultural Rights.
In General Comments Nos. 18 of 2005 (on the right to work)
(Committee on Economic, Social and Cultural Rights, General
Comment No. 18: The right to work, E/C.12/GC/18, November 24,
2005), 15 of 2002 (on the right to water) (Committee on Economic,
Social and Cultural Rights, General Comment No. 15: The right to
water, E/C.12/2002/11, November 26, 2002) and 14 of 2000 (on the
right to the highest attainable standard of health) (Committee on
Economic, Social and Cultural Rights, General Comment No. 14:
The right to the highest attainable standard of health,
E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant
proscribes any discrimination on the basis of, inter-alia, sex and
sexual orientation.
The Committee on the Rights of the Child (CRC) has also dealt
with the issue in a General Comment. In its General Comment No. 4
of 2003, it stated that, “State parties have the obligation to ensure
that all human beings below 18 enjoy all the rights set forth in the
Convention [on the Rights of the Child] without discrimination
(Article 2), including with regard to ‘‘race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status.” These grounds also cover
[inter alia] sexual orientation.” (Committee on the Rights of the
Child, General Comment No. 4: Adolescent health and development
in the context of the Convention on the Rights of the Child, July 1,
2003, CRC/GC/2003/4).
The Committee on the Elimination of Discrimination Against
Women (CEDAW), has, on a number of occasions, criticized States
for discrimination on the basis of sexual orientation. For example, it
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76 SUPREME COURT REPORTS ANNOTATED
Ang Ladlad LGBT Party vs. Commission on Elections
The UDHR provides:
Article 21.
Page 42 of 267
 (1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b)  To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to public
service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope
of the right to electoral participation is elaborated by the Human
Rights Committee in its General Comment No. 25 (Participation in
Public Affairs and the Right to Vote) as follows:
“1. Article 25 of the Covenant recognizes and protects the right
of every citizen to take part in the conduct of public affairs, the
right to vote and to be elected and the right to have access to
public service. Whatever form of constitution or government is in
force, the Covenant requires States to adopt such legislative and
other measures as may be necessary to ensure that citizens have
an effective
_______________
also addressed the situation in Kyrgyzstan and recommended
that, “lesbianism be reconceptualized as a sexual orientation and
that penalties for its practice be abolished” (Concluding
Observations of the Committee on the Elimination of Discrimination
Against Women regarding Kyrgyzstan, February 5, 1999, A/54/38 at
par. 128).
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Ang Ladlad LGBT Party vs. Commission on Elections
opportunity to enjoy the rights it protects. Article 25 lies at the core
of democratic government based on the consent of the people and
in conformity with the principles of the Covenant.
xxxx
CONSTI 2 CASES Free Exercise of Religion
15. The effective implementation of the right and the
opportunity to stand for elective office ensures that persons
entitled to vote have a free choice of candidates. Any restrictions
on the right to stand for election, such as minimum age, must be
justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of
that person’s candidacy. States parties should indicate and explain
the legislative provisions which exclude any group or category of
persons from elective office.”50
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of international
law is not the panacea for all social ills. We refer now to the
petitioner’s invocation of the Yogyakarta Principles (the Application
of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),51 which petitioner declares to reflect binding
principles of international law.
_______________
50 General Comment No. 25: The right to participate in public
affairs, voting rights and the right of equal access to public service
(Art. 25) December 16, 1996. CCPR/C/21/Rev.1/Add.7.
51 The Yogyakarta Principles on the Application of International
Human Rights Law in relation to Sexual Orientation and Gender
Identity is a set of international principles relating to sexual
orientation and gender identity, intended to address documented
evidence of abuse of rights of lesbian, gay, bisexual,
and transgender (LGBT) individuals. It contains 29 Principles
adopted by human rights practitioners and experts, together with
recommendations to governments, regional intergovernmental
institutions, civil society, and the United Nations.
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At this time, we are not prepared to declare that
these Yogyakarta Principles contain norms that are obligatory on
the Philippines. There are declarations and obligations outlined in
said Principles which are not reflective of the current state of
Page 43 of 267
international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of
the International Court of Justice.52 Peti-
_______________
52 One example is Principle 3 (The Right to Recognition Before
the Law), which provides:
Everyone has the right to recognition everywhere as a person
before the law. Persons of diverse sexual orientations and gender
identities shall enjoy legal capacity in all aspects of life. Each
person’s self-defined sexual orientation and gender identity is
integral to their personality and is one of the most basic aspects of
self-determination, dignity and freedom. No one shall be forced to
undergo medical procedures, including sex reassignment surgery,
sterilization or hormonal therapy, as a requirement for legal
recognition of their gender identity. No status, such as marriage or
parenthood, may be invoked as such to prevent the legal
recognition of a person’s gender identity. No one shall be subjected
to pressure to conceal, suppress or deny their sexual orientation or
gender identity.
States shall:
a)  Ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation or
gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
b) Take all necessary legislative, administrative and
other measures to fully respect and legally recognise each
person’s self-defined gender identity;
c) Take all necessary legislative, administrative and
other measures to ensure that procedures exist whereby all
State-issued identity papers which indicate a person’s
gender/sex — including birth certificates, passports,
electoral records and other documents — reflect the
person’s profound self-defined gender identity;
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Ang Ladlad LGBT Party vs. Commission on Elections
CONSTI 2 CASES Free Exercise of Religion
tioner has not undertaken any objective and rigorous analysis of
these alleged principles of international law to ascertain their true
status.
We also hasten to add that not everything that society—or a
certain segment of society—wants or demands is automatically a
human right. This is not an arbitrary human intervention that may
be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context of
needs that identifies many social desires as rights in order to
further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human rights,
and is a result of the notion that if “wants” are couched in “rights”
language, then they are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta
Principles, consisting of a declaration formulated by various
international law professors, are—at best—de lege ferenda—and do
not constitute binding obligations on the Philippines. Indeed, so
much of contemporary international law is characterized by the
“soft law” nomenclature, i.e., international law is full of principles
that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.53
_______________
d) Ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person
concerned;
e) Ensure that changes to identity documents will be
recognized in all contexts where the identification or disaggregation
of persons by gender is required by law or policy;
f) Undertake targeted programmes to provide social support
for all persons experiencing gender transitioning or reassignment.
(Emphasis ours)
53 See Pharmaceutical and Health Care Association of the
Philippines v. Secretary of Health, G.R. No. 173034, October 9,
2007, 535 SCRA 265, where we explained that “soft law” does not
fall into any
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80 SUPREME COURT REPORTS ANNOTATED
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Page 44 of 267
 As a final note, we cannot help but observe that the social
issues presented by this case are emotionally charged, societal
attitudes are in flux, even the psychiatric and religious communities
are divided in opinion. This Court’s role is not to impose its own
view of acceptable behavior. Rather, it is to apply the Constitution
and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough
to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions
of the Commission on Elections dated November 11, 2009 and
December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE.
The Commission on Elections is directed to GRANT petitioner’s
application for party-list accreditation.
SO ORDERED.
Carpio, Velasco, Jr., Leonardo-De Castro, Bersamin, Villarama,
Jr., Perez and Mendoza, JJ., concur.
Puno (C.J.), See Separate Opinion.
Corona, J., Please see Dissenting Opinion.
Carpio-Morales, J., I join J. Abad., concurring opinion.
Nachura, J., I join concurring opinion of J. Abad.
Brion, J., I join dissent of J. Corona.
Peralta, J., I join the concurring opoinion of J.
Abad.
Abad, J., I certify that J. Abad write a separate concurring
opinion—Puno, C.J.
_______________
of the categories of international law set forth in Article 38, Chapter
III of the 1946 Statute of the International Court of Justice. It is,
however, an expression of non-binding norms, principles, and
practices that influence state behavior. Certain declarations and
resolutions of the UN General Assembly fall under this category.
——o0o——
Republic of the Philippines
SUPREME COURT
Manila
CONSTI 2 CASES Free Exercise of Religion
EN BANC
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG, represented by their
parents MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father AMOS TANTOG;
JEMILOYAO & JOEL OYAO, represented by their parents MR.
& MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS
DIAMOS, represented by parents MR. & MRS. GODOFREDO
DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by
their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO &
RENAN SEQUINO, represented by their parents MR. & MRS.
LYDIO SEQUINO; NAPTHALE TANACAO, represented by his
parents MR. & MRS. MANUEL TANACAO; PRECILA PINO,
represented by her parents MR. & MRS. FELIPE PINO;
MARICRIS ALFAR, RUWINA ALFAR, represented by their
parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA
ALFAR & GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR,
represented by their parents MR. & MRS. GENEROSO ALFAR;
MARTINO VILLAR, represented by his parents MR. & MRS.
GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA,
represented by their parents MR. & MRS. CESAR GUINITA;
ALVIN DOOP, represented by his parents MR. & MRS.
LEONIDES DOOP; RHILYN LAUDE, represented by her
parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES,
represented by her parents, MR. & MRS. FLORENCIO
MONARES; MERCY MONTECILLO, represented by her parents
MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA,
represented by his parent ILUMINADA TANGAHA; EVELYN,
MARIA & FLORA TANGAHA, represented by their parents
MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG,
represented by his parents, MR. & MRS. PAQUITO
EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN
CUMON, represented by their father RAFAEL CUMON; EVIE
LUMAKANG & JUNAR LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ
AMOR SARSOZO & IGNA MARIE SARSOZO, represented by
their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL
Page 45 of 267
JOSEPH & HENRY JOSEPH, represented by parent ANNIE
JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON,
represented by their parent EMERLITO
TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, respondent.
G.R. No. 95887 March 1, 1993
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS
AMOLO; REDFORD ALSADO, JOEBERT ALSADO & RUDYARD
ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NELIA ALSADO, REU ALSADO &
LILIBETH ALSADO, represented by their parents MR. & MRS.
ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA
CARMELOTES, represented by her parents MR. & MRS.
SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by
her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE
ALSADO, represented by her parents MR. & MRS. JOEL
ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented
by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL
VILLA & MELONEY VILLA, represented by their parents MR.
& MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY
GRACE MAHINAY and MAGDALENE MAHINAY, represented by
their parents MR. & MRS. FELIX MAHINAY; JONALYN
ANTIOLA and JERWIN ANTIOLA, represented by their
parents FELIFE ANTIOLA and ANECITA ANTIOLA; MARIA
CONCEPCION CABUYAO, represented by her parents
WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI
TURNO represented by her parents MANUEL TURNO and
VEVENCIA TURNO; SOLOMON PALATULON, SALMERO
PALATULON and ROSALINDA PALATULON, represented by
their parents MARTILLANO PALATULON and CARMILA
PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and
ANTONIO A. SANGUTAN, respondents.
Felino M. Ganal for petitioners.
CONSTI 2 CASES Free Exercise of Religion
The Solicitor General for respondents.
GRIÑO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and
Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members or a
religious sect known as Jehovah's Witnesses may be expelled from
school (both public and private), for refusing, on account of their
religious beliefs, to take part in the flag ceremony which includes
playing (by a band) or singing the Philippine national anthem,
saluting the Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent
of Schools of Cebu and Manuel F. Biongcog, Cebu District
Supervisor," the petitioners are 43 high school and elementary
school students in the towns of Daan Bantayan, Pinamungajan,
Carcar, and Taburan Cebu province. All minors, they are assisted by
their parents who belong to the religious group known as Jehovah's
Witnesses which claims some 100,000 "baptized publishers" in the
Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of
Schools of Cebu and Antonio A. Sangutan," the petitioners are 25
high school and grade school students enrolled in public schools in
Asturias, Cebu, whose parents are Jehovah's Witnesses. Both
petitions were prepared by the same counsel, Attorney Felino M.
Ganal.
All the petitioners in these two cases were expelled from their
classes by the public school authorities in Cebu for refusing to
salute the flag, sing the national anthem and recite the patriotic
pledge as required by Republic Act No. 1265 of July 11, 1955, and
by Department Order No. 8 dated July 21, 1955 of the Department
of Education, Culture and Sports (DECS) making the flag ceremony
compulsory in all educational institutions. Republic Act No. 1265
provides:
Page 46 of 267
 Sec. 1. All educational institutions shall henceforth 2. Every public and private educational institution
observe daily flag ceremony, which shall be simple shall hold a flag-raising ceremony every morning
and dignified and shall include the playing or singing except when it is raining, in which event the
of the Philippine National anthem. ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of
Sec. 2. The Secretary of Education is hereby the same day. The flag-raising ceremony in the
authorized and directed to issue or cause to be morning shall be conducted in the following manner:
issued rules and regulations for the proper conduct of
the flag ceremony herein provided. a. Pupils and teachers or students and
faculty members who are in school
Sec. 3. Failure or refusal to observe the flag and its premises shall assemble in
ceremony provided by this Act and in accordance formation facing the flag. At command,
with rules and regulations issued by the Secretary of books shall be put away or held in the
Education, after proper notice and hearing, shall left hand and everybody shall come to
subject the educational institution concerned and its attention. Those with hats shall
head to public censure as an administrative uncover. No one shall enter or leave
punishment which shall be published at least once in the school grounds during the
a newspaper of general circulation. ceremony.

In case of failure to observe for the second time the b. The assembly shall sing the
flag-ceremony provided by this Act, the Secretary of Philippine National
Education, after proper notice and hearing, shall Anthem accompanied by the school
cause the cancellation of the recognition or permit of band or without the accompaniment if
the private educational institution responsible for it has none; or the anthem may be
such failure. played by the school band alone. At
the first note of the Anthem, the flag
The implementing rules and regulations in Department Order No. 8 shall be raised briskly. While the flag is
provide: being raised, all persons present shall
stand at attention and execute a
salute. Boys and men with hats shall
RULES AND REGULATIONS FOR CONDUCTING THE salute by placing the hat over the
FLAG CEREMONY IN ALL EDUCATIONAL heart. Those without hat may stand
INSTITUTIONS. with their arms and hands down and
straight at the sides. Those in military
1. The Filipino Flag shall be displayed by all or Boy Scout uniform shall give the
educational institutions, public and private, every salute prescribed by their regulations.
school day throughout the year. It shall be raised at The salute shall be started as the Flag
sunrise and lowered at sunset. The flag-staff must be rises, and completed upon last note of
straight, slightly and gently tapering at the end, and the anthem.
of such height as would give the Flag a commanding
position in front of the building or within the c. Immediately following the singing of
compound. the Anthem, the assembly shall recite

CONSTI 2 CASES Free Exercise of Religion Page 47 of 267

 in unison the following patriotic
pledge (English or vernacular version),
which may bring the ceremony to a
close. This is required of all public
schools and of private schools which
are intended for Filipino students or
whose population is predominantly
Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be,
strong, happy and useful.
In return, I will heed the counsel of my
parents;
I will obey the rules of my school;
I will perform the duties of a patriotic,
law-abiding citizen;
I will serve my country unselfishly and
faithfully;
I will be a true, Filipino in thought, in
word, in deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute
the flag, sing the national anthem, and recite the patriotic pledge
for they believe that those are "acts of worship" or "religious
devotion" (p. 10, Rollo) which they "cannot conscientiously give . . .
to anyone or anything except God" (p. 8, Rollo). They feel bound by
the Bible's command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an
image or idol representing the State (p. 10, Rollo). They think the
action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on the State's power
and invades the sphere of the intellect and spirit which the
Constitution protect against official control (p. 10, Rollo).
CONSTI 2 CASES Free Exercise of Religion
This is not the first time that the question, of whether the children
of Jehovah's Witnesses may be expelled from school for
disobedience of R.A. No. 1265 and Department Order No. 8, series
of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of
Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs.
Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:
The flag is not an image but a symbol of the Republic
of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution
guarantee and protect. Under a system of complete
separation of church and state in the government,
the flag is utterly devoid of any religious significance.
Saluting the flag does not involve any religious
ceremony. The flag salute is no more a religious
ceremony than the taking of an oath of office by a
public official or by a candidate for admission to the
bar.
In requiring school pupils to participate in the flag
salute, the State thru the Secretary of Education is
not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing
a
non-discriminatory school regulation applicable to all
alike whether Christian, Moslem, Protestant or
Jehovah's Witness. The State is merely carrying out
the duty imposed upon it by the Constitution which
charges it with supervision over and regulation of all
educational institutions, to establish and maintain a
complete and adequate system of public education,
and see to it that all schools aim to develop, among
other things, civic conscience and teach the duties of
citizenship.
The children of Jehovah's Witnesses cannot be
exempted from participation in the flag ceremony.
They have no valid right to such exemption.
Page 48 of 267
 Moreover, exemption to the requirement will disrupt
school discipline and demoralize the rest of the
school population which by far constitutes the great
majority.
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption
from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations
promulgated by competent authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by
the Legislature thru Republic Act 1265 to promulgate
said Department Order, and its provisions requiring
the observance of the flag salute, not being a
religious ceremony but an act and profession of love
and allegiance and pledge of loyalty to the fatherland
which the flag stands for, does not violate the
constitutional provision on freedom of religion.
(Balbuna, et al. vs. Secretary of Education, et al., 110
Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been
incorporated in Section 28, Title VI, Chapter 9 of the Administrative
Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official
Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of
Section 28 gives legislative cachet to the ruling in Gerona, thus:
5. Any teacher or student or pupil who refuses to join
or participate in the flag ceremony may be dismissed
after due investigation.
However, the petitioners herein have not raised in issue the
constitutionality of the above provision of the new Administrative
Code of 1987. They have targeted only Republic Act No. 1265 and
the implementing orders of the DECS.
CONSTI 2 CASES Free Exercise of Religion
In 1989, the DECS Regional Office in Cebu received complaints
about teachers and pupils belonging to the Jehovah's Witnesses,
and enrolled in various public and private schools, who refused to
sing the Philippine national anthem, salute the Philippine flag and
recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty.
Marcelo M. Bacalso, Assistant Division Superintendent, recalling this
Court's decision in Gerona, issued Division Memorandum No. 108,
dated November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770)
directing District Supervisors, High School Principals and Heads of
Private Educational institutions as follows:
1. Reports reaching this Office disclose that there are
a number of teachers, pupils, students, and school
employees in public schools who refuse to salute the
Philippine flag or participate in the daily flag
ceremony because of some religious belief.
2. Such refusal not only undermines Republic Act No.
1265 and the DECS Department Order No. 8, Series
of 1955 (Implementing Rules and Regulations) but
also strikes at the heart of the DECS sustained effort
to inculcate patriotism and nationalism.
3. Let it be stressed that any belief that considers the
flag as an image is not in any manner whatever a
justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme
Court of the Philippine says:
The flag is not an image but a symbol
of the Republic of the Philippines, an
emblem of national sovereignty, of
national unity and cohesion and
freedom and liberty which it and the
Constitution guarantee and protect.
(Gerona, et al. vs. Sec. of Education, et
al., 106 Phil. 11.)
4. As regards the claim for freedom of belief, which
an objectionist may advance, the Supreme Court
asserts:
Page 49 of 267
 But between the freedom of belief and
the exercise of said belief, there is
quite a stretch of road to travel. If the
exercise of said religious belief clashes
with the established institutions of
society and with the law, then the
former must yield and give way to the
latter. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)
5. Accordingly, teachers and school employees who
choose not to participate in the daily flag ceremony
or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be
considered removed from the service after due
process.
6. In strong language about pupils and students who
do the same the Supreme Court has this to say:
If they choose not to obey the flag
salute regulation, they merely lost the
benefits of public education being
maintained at the expense of their
fellow Citizens, nothing more.
According to a popular expression,
they could take it or leave it! Having
elected not to comply with the
regulation about the flag salute they
forfeited their right to attend public
schools. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to this
Office a report on those who choose not to
participate in flag ceremony or salute the Philippine
flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis
supplied).
Cebu school officials resorted to a number of ways to persuade the
children of Jehovah's Witnesses to obey the memorandum. In the
Buenavista Elementary School, the children were asked to sign an
CONSTI 2 CASES Free Exercise of Religion
Agreement (Kasabutan) in the Cebuano dialect promising to sing
the national anthem, place their right hand on their breast until the
end of the song and recite the pledge of allegiance to the flag
(Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rolloof
G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio
A. Sangutan, met with the Jehovah's Witnesses' parents, as
disclosed in his letter of October 17, 1990, excerpts from which
reveal the following:
After two (2) fruitless confrontation meetings with the
Jehovah's Witnesses' parents on October 2, 1990 and
yesterday due to their firm stand not to salute the
flag of the Republic of the Philippines during Flag
Ceremony and other occasions, as mandated by law
specifically Republic Act No. 1265, this Office hereby
orders the dropping from the list in the School
Register (BPS Form I) of all teachers, all Jehovah
Witness pupils from Grade I up to Grade VI effective
today.
xxx xxx xxx
This order is in compliance with Division
Memorandum No. 108 s. 1989 dated November 17,
1989 by virtue of Department Order No. 8 s. 1955
dated July 21, 1955 in accordance with Republic Act
No. 1265 and Supreme Court Decision of a case
"Genaro Gerona, et al., Petitioners and Appellants vs.
The Honorable Secretary of Education, et al.,
Respondents and Appellees' dated August 12, 1959
against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F.
Biongcog, ordered the "dropping from the rolls" of students who
"opted to follow their religious belief which is against the Flag
Salute Law" on the theory that "they forfeited their right to attend
public schools." (p. 47, Rollo of G.R. No. 95770.)
Page 50 of 267
 1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In
Charge [sic], Agujo Elementary School with the
information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos,
Grades III and IV pupils respectively from the roll
since they opted to follow their religious belief which
is against the Flag Salute Law (R.A. 1265) and DECS
Order No. 8, series of 1955, having elected not to
comply with the regulation about the flag salute they
forfeited their right to attend public schools (Gerona,
et al. vs. Sec. of Education, et al., 106 Philippines
15). However, should they change their mind to
respect and follow the Flag Salute Law they may be
re-accepted.
(Sgd.)
MANUEL F.
BIONGCO
G from their classes or otherwise
District
Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students
of the Daanbantayan National High School, Agujo Elementary
School, Calape Barangay National High School, Pinamungajan
Provincial High School, Tabuelan Central School, Canasojan
Elementary School, Liboron Elementary School, Tagaytay Primary
School, San Juan Primary School and Northern Central Elementary
School of San Fernando, Cebu, upon order of then Acting Division
Superintendent Marcelo Bacalso, prompted some Jehovah's
Witnesses in Cebu to appeal to the Secretary of Education Isidro
Cariño but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were
similarly expelled because Dr. Pablo Antopina, who succeeded
Susana Cabahug as Division Superintendent of Schools, would not
CONSTI 2 CASES Free Exercise of Religion
recall the expulsion orders of his predecessor. Instead, he verbally
caused the expulsion of some more children of Jehovah's
Witnesses.
On October 31, 1990, the students and their parents filed these
special civil actions for Mandamus, Certiorari and Prohibition
alleging that the public respondents acted without or in excess of
their jurisdiction and with grave abuse of discretion — (1) in
ordering their expulsion without prior notice and hearing, hence, in
violation of their right to due process, their right to free public
education, and their right to freedom of speech, religion and
worship (p. 23, Rollo). The petitioners pray that:
c. Judgment be rendered:
i. declaring null and void the expulsion
or dropping from the rolls of herein
petitioners from their respective
schools;
ii. prohibiting and enjoining respondent
from further barring the petitioners
implementing the expulsion ordered on
petitioners; and
iii. compelling the respondent and all
persons acting for him to admit and
order the re-admission of petitioners to
their respective schools. (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a
temporary restraining order be issued enjoining the respondents
from enforcing the expulsion of the petitioners and to re-admit
them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining
order and a writ of preliminary mandatory injunction commanding
the respondents to immediately re-admit the petitioners to their
respective classes until further orders from this Court (p. 57, Rollo).
Page 51 of 267
The Court also ordered the Secretary of Education and Cebu District
Supervisor Manuel F. Biongcog to be impleaded as respondents in
these cases.
On May 13, 1991, the Solicitor General filed a consolidated
comment to the petitions (p. 98, Rollo) defending the expulsion
orders issued by the public respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's
Witnesses produce rebellious and anti-social school
children and consequently disloyal and mutant
Filipino citizens.
2. There are no new and valid grounds to sustain the
charges of the Jehovah's Witnesses that the DECS'
rules and regulations on the flag salute ceremonies
are violative of their freedom of religion and worship.
3. The flag salute is devoid of any religious
significance; instead, it inculcates respect and love of
country, for which the flag stands.
4. The State's compelling interests being pursued by
the DECS' lawful regulations in question do not
warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies
on the basis of their own self-perceived religious
convictions.
5. The issue is not freedom of speech but
enforcement of law and jurisprudence.
6. State's power to regulate repressive and unlawful
religious practices justified, besides having scriptural
basis.
7. The penalty of expulsion is legal and valid, more
so with the enactment of Executive Order No. 292
(The Administrative Code of 1987).
CONSTI 2 CASES Free Exercise of Religion
Our task here is extremely difficult, for the 30-year old decision of
this court in Gerona upholding the flag salute law and approving
the expulsion of students who refuse to obey it, is not lightly to be
trifled with.
It is somewhat ironic however, that after the Gerona ruling had
received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that the
time has come to re-examine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite
the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, is alien
to the conscience of the present generation of Filipinos who cut
their teeth on the Bill of Rights which guarantees their rights to free
speech ** and the free exercise of religious profession and worship
(Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973
Constitution; Article III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights,
for it involves the relationship of man to his Creator (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).
The right to religious profession and worship has a
two-fold aspect, vis., freedom to believe and freedom
to act on one's belief. The first is absolute as long as
the belief is confined within the realm of thought. The
second is subject to regulation where the belief is
translated into external acts that affect the public
welfare (J. Cruz, Constitutional Law, 1991 Ed., pp.
176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts" or
behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag
ceremony. They quietly stand at attention during the flag ceremony
to show their respect for the right of those who choose to
participate in the solemn proceedings (Annex F, Rollo of G.R. No.
95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not
Page 52 of 267
engage in disruptive behavior, there is no warrant for their
expulsion.
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 vs. 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.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past or
perhaps conducted with very few participants, and
the time will come when we would have citizens
untaught and uninculcated in and not imbued with
reverence for the flag and love of country, admiration
for national heroes, and patriotism — a pathetic,
even tragic situation, and all because a small portion
of the school population imposed its will, demanded
and was granted an exemption. (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the
Jehovah's Witnesses from saluting the flag, singing the national
anthem and reciting the patriotic pledge, this religious group which
admittedly comprises a "small portion of the school population" will
shake up our part of the globe and suddenly produce a nation
"untaught and uninculcated in and unimbued with reverence for the
flag, patriotism, love of country and admiration for national heroes"
(Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the
petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government,
and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation of profession and be taught
the virtues of "patriotism, respect for human rights, appreciation for
national heroes, the rights and duties of citizenship, and moral and
CONSTI 2 CASES Free Exercise of Religion
spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of
the curricula. Expelling or banning the petitioners from Philippine
schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their
religious beliefs, will hardly be conducive to love of country or
respect for dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319
U.S. 624 (1943):
. . . To believe that patriotism will not flourish if
patriotic ceremonies are voluntary and spontaneous
instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions
to free minds. . . . When they [diversity] are so
harmless to others or to the State as those we deal
with here, the price is not too great. But freedom to
differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The
test of its substance is the right to differ as to things
that touch the heart of the existing order.
Furthermore, let it be noted that coerced unity and
loyalty even to the country, . . . — assuming that
such unity and loyalty can be attained through
coercion — is not a goal that is constitutionally
obtainable at the expense of religious liberty. A
desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed.
1042, 1046.)
Moreover, the expulsion of members of Jehovah's Witnesses from
the schools where they are enrolled will violate their right as
Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote the
right of all citizens to quality education . . . and to make such
education accessible to all (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75,
we upheld the exemption of members of the Iglesia ni Cristo, from
the coverage of a closed shop agreement between their employer
Page 53 of 267
and a union because it would violate the teaching of their church
not to join any labor group:
. . . 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 interests" intervenes. (Sherbert vs.
Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct.
1790.)
We hold that a similar exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out
of respect for their religious beliefs, however "bizarre" those beliefs
may seem to others. Nevertheless, their right not to participate in
the flag ceremony does not give them a right to disrupt such
patriotic exercises. Paraphrasing the warning cited by this Court
in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard
must be afforded their right to the free exercise of their religion,
"this should not be taken to mean that school authorities are
powerless to discipline them" if they should commit breaches of the
peace by actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at attention during
the flag ceremony while their classmates and teachers salute the
flag, sing the national anthem and recite the patriotic pledge, we
do not see how such conduct may possibly disturb the peace, or
pose "a grave and present danger 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 (German vs.
Barangan, 135 SCRA 514, 517).
Although the Court upholds in this decision the petitioners' right
under our Constitution to refuse to salute the Philippine flag on
account of their religious beliefs, we hope, nevertheless, that
another foreign invasion of our country will not be necessary in
order for our countrymen to appreciate and cherish the Philippine
flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED.
The expulsion orders issued by the public respondents against the
petitioners are hereby ANNULLED AND SET ASIDE. The temporary
restraining order which was issued by this Court is hereby made
permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., is on leave.
U.S. Supreme Court
Employment Div. v. Smith., 494 U.S. 872 (1990)
Employment Division, Department of

Before we close this decision, it is appropriate to recall the Human Resources of Oregon v. Smith
Japanese occupation of our country in 1942-1944 when every
Filipino, regardless of religious persuasion, in fear of the invader,
saluted the Japanese flag and bowed before every Japanese soldier. No. 88-1213
Perhaps, if petitioners had lived through that dark period of our
history, they would not quibble now about saluting the Philippine Argued Nov. 6, 1989
flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that Decided April 17, 1990
made our hearts pound with pride and joy over the newly-regained
freedom and sovereignty of our nation. 494 U.S. 872

CONSTI 2 CASES Free Exercise of Religion Page 54 of 267

CERTIORARI TO THE SUPREME COURT OF OREGON
Syllabus
Respondents Smith and Black were fired by a private drug
rehabilitation organization because they ingested peyote, a
hallucinogenic drug, for sacramental purposes at a ceremony of
their Native American Church. Their applications for unemployment
compensation were denied by the State of Oregon under a state
law disqualifying employees discharged for work-related
"misconduct." Holding that the denials violated respondents' First
Amendment free exercise rights, the State Court of Appeals
reversed. The State Supreme Court affirmed, but this Court vacated
the judgment and remanded for a determination whether
sacramental peyote use is proscribed by the State's controlled
substance law, which makes it a felony to knowingly or intentionally
possess the drug. Pending that determination, the Court refused to
decide whether such use is protected by the Constitution. On
remand, the State Supreme Court held that sacramental peyote
use violated, and was not excepted from, the state law prohibition,
but concluded that that prohibition was invalid under the Free
Exercise Clause.
Held: The Free Exercise Clause permits the State to prohibit
sacramental peyote use, and thus to deny unemployment benefits
to persons discharged for such use. Pp. 494 U. S. 876-890.
(a) Although a State would be "prohibiting the free exercise [of
religion]" in violation of the Clause if it sought to ban the
performance of (or abstention from) physical acts solely because of
their religious motivation, the Clause does not relieve an individual
of the obligation to comply with a law that incidentally forbids (or
requires) the performance of an act that his religious belief requires
(or forbids) if the law is not specifically directed to religious practice
and is otherwise constitutional as applied to those who engage in
the specified act for nonreligious reasons. See, e.g., Reynolds v.
United States, 98 U. S. 145, 98 U. S. 166-167. The only decisions in
which this Court has held that the First Amendment bars
application of a neutral, generally applicable law to religiously
motivated action are distinguished on the ground that they
involved not the Free Exercise Clause alone, but that Clause in
conjunction with other constitutional
CONSTI 2 CASES Free Exercise of Religion
Page 494 U. S. 873
protections. See, e.g., Cantwell v. Connecticut, 310 U. S. 296, 310
U. S. 304-307; Wisconsin v. Yoder, 406 U. S. 205. Pp. 494 U. S. 876-
882.
(b) Respondents' claim for a religious exemption from the Oregon
law cannot be evaluated under the balancing test set forth in the
line of cases following Sherbert v. Verner, 374 U. S. 398, 374 U. S.
402-403, whereby governmental actions that substantially burden a
religious practice must be justified by a "compelling governmental
interest." That test was developed in a context -- unemployment
compensation eligibility rules -- that lent itself to individualized
governmental assessment of the reasons for the relevant conduct.
The test is inapplicable to an across-the-board criminal prohibition
on a particular form of conduct. A holding to the contrary would
create an extraordinary right to ignore generally applicable laws
that are not supported by "compelling governmental interest" on
the basis of religious belief. Nor could such a right be limited to
situations in which the conduct prohibited is "central" to the
individual's religion, since that would enmesh judges in an
impermissible inquiry into the centrality of particular beliefs or
practices to a faith. Cf. Hernandez v. Commissioner, 490 U. S.
680, 490 U. S. 699. Thus, although it is constitutionally permissible
to exempt sacramental peyote use from the operation of drug laws,
it is not constitutionally required. Pp. 494 U. S. 882-890.
307 Or. 68, 763 P.2d 146, reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST,
C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J.,
filed an opinion concurring in the judgment, in Parts I and II of
which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without
concurring in the judgment, post, p. 494 U. S. 891. BLACKMUN, J.,
filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ.,
joined, post, p. 494 U. S. 907.
Page 494 U. S. 874
Justice SCALIA delivered the opinion of the Court.
Page 55 of 267
This case requires us to decide whether the Free Exercise Clause of
the First Amendment permits the State of Oregon to include
religiously inspired peyote use within the reach of its general
criminal prohibition on use of that drug, and thus permits the State
to deny unemployment benefits to persons dismissed from their
jobs because of such religiously inspired use.
I Employment Security Div., 450 U. S. 707 (1981), the court
Oregon law prohibits the knowing or intentional possession of a
"controlled substance" unless the substance has been prescribed
by a medical practitioner. Ore.Rev.Stat. § 475.992(4) (1987). The
law defines "controlled substance" as a drug classified in Schedules
I through V of the Federal Controlled Substances Act, 21 U.S.C. §§
811-812 (1982 ed. and Supp. V), as modified by the State Board of
Pharmacy. Ore.Rev.Stat. § 475.005(6) (1987). Persons who violate
this provision by possessing a controlled substance listed on
Schedule I are "guilty of a Class B felony." § 475.992(4)(a). As
compiled by the State Board of Pharmacy under its statutory
authority, see Ore.Rev.Stat. § 475.035 (1987), Schedule I contains
the drug peyote, a hallucinogen derived from the plant
Lophophorawilliamsii Lemaire. Ore.Admin. Rule 855-80-021(3)(s)
(1988).
Respondents Alfred Smith and Galen Black were fired from their
jobs with a private drug rehabilitation organization because they
ingested peyote for sacramental purposes at a ceremony of the
Native American Church, of which both are members. When
respondents applied to petitioner Employment Division for
unemployment compensation, they were determined to be
ineligible for benefits because they had been discharged for work-
related "misconduct". The Oregon Court of Appeals reversed that
determination, holding that the denial of benefits violated
respondents' free exercise rights under the First Amendment.
Page 494 U. S. 875
On appeal to the Oregon Supreme Court, petitioner argued that the
denial of benefits was permissible because respondents'
consumption of peyote was a crime under Oregon law. The Oregon
Supreme Court reasoned, however, that the criminality of
respondents' peyote use was irrelevant to resolution of their
CONSTI 2 CASES Free Exercise of Religion
constitutional claim -- since the purpose of the "misconduct"
provision under which respondents had been disqualified was not to
enforce the State's criminal laws, but to preserve the financial
integrity of the compensation fund, and since that purpose was
inadequate to justify the burden that disqualification imposed on
respondents' religious practice. Citing our decisions in Sherbert v.
Verner, 374 U. S. 398(1963), and Thomas v. Review Board, Indiana
concluded that respondents were entitled to payment of
unemployment benefits.Smith v. Employment Div., Dept. of Human
Resources, 301 Or. 209, 217-219, 721 P.2d 445, 449-450 (1986).
We granted certiorari. 480 U.S. 916 (1987).
Before this Court in 1987, petitioner continued to maintain that the
illegality of respondents' peyote consumption was relevant to their
constitutional claim. We agreed, concluding that
"if a State has prohibited through its criminal laws certain kinds of
religiously motivated conduct without violating the First
Amendment, it certainly follows that it may impose the lesser
burden of denying unemployment compensation benefits to
persons who engage in that conduct."
Employment Div., Dept. of Human Resources of Oregon v.
Smith, 485 U. S. 660, 485 U. S. 670(1988) (Smith I). We noted,
however, that the Oregon Supreme Court had not decided whether
respondents' sacramental use of peyote was in fact proscribed by
Oregon's controlled substance law, and that this issue was a matter
of dispute between the parties. Being "uncertain about the legality
of the religious use of peyote in Oregon," we determined that it
would not be "appropriate for us to decide whether the practice is
protected by the Federal Constitution." Id. at 485 U. S. 673.
Accordingly, we
Page 494 U. S. 876
vacated the judgment of the Oregon Supreme Court and remanded
for further proceedings. Id. at 485 U. S. 674.
On remand, the Oregon Supreme Court held that respondents'
religiously inspired use of peyote fell within the prohibition of the
Oregon statute, which "makes no exception for the sacramental
Page 56 of 267
use" of the drug. 307 Or. 68, 72-73, 763 P.2d 146, 148 (1988). It
then considered whether that prohibition was valid under the Free
Exercise Clause, and concluded that it was not. The court therefore
reaffirmed its previous ruling that the State could not deny
unemployment benefits to respondents for having engaged in that
practice.
We again granted certiorari. 489 U.S. 1077 (1989).
II
Respondents' claim for relief rests on our decisions in Sherbert v.
Verner, supra, Thomas v. Review Board, Indiana Employment
Security Div., supra, and Hobbie v. Unemployment Appeals Comm'n
of Florida, 480 U. S. 136 (1987), in which we held that a State could
not condition the availability of unemployment insurance on an
individual's willingness to forgo conduct required by his religion. As
we observed in Smith I, however, the conduct at issue in those
cases was not prohibited by law. We held that distinction to be
critical, for
"if Oregon does prohibit the religious use of peyote, and if that
prohibition is consistent with the Federal Constitution, there is no
federal right to engage in that conduct in Oregon,"
and
"the State is free to withhold unemployment compensation from
respondents for engaging in work-related misconduct, despite its
religious motivation."
485 U.S. at 485 U. S. 672. Now that the Oregon Supreme Court has
confirmed that Oregon does prohibit the religious use of peyote, we
proceed to consider whether that prohibition is permissible under
the Free Exercise Clause.
A
The Free Exercise Clause of the First Amendment, which has been
made applicable to the States by incorporation into
CONSTI 2 CASES Free Exercise of Religion
Page 494 U. S. 877
the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S.
296, 303 (1940), provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof. . . . " U.S. Const. Am. I (emphasis added). The free
exercise of religion means, first and foremost, the right to believe
and profess whatever religious doctrine one desires. Thus, the First
Amendment obviously excludes all "governmental regulation of
religious beliefs as such." Sherbert v. Verner, supra, 374 U.S. at 374
U. S. 402. The government may not compel affirmation of religious
belief, see Torcaso v. Watkins, 367 U. S. 488 (1961), punish the
expression of religious doctrines it believes to be false, United
States v. Ballard,322 U. S. 78, 322 U. S. 86-88 (1944), impose
special disabilities on the basis of religious views or religious
status, see McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode
Island, 345 U. S. 67, 345 U. S. 69 (1953); cf. Larson v. Valente, 456
U. S. 228, 456 U. S. 245 (1982), or lend its power to one or the
other side in controversies over religious authority or dogma, see
Presbyterian Church v. Hull Church, 393 U. S. 440, 393 U. S. 445-
452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 344 U.
S. 95-119 (1952); Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U. S. 696, 426 U. S. 708-725 (1976).
But the "exercise of religion" often involves not only belief and
profession but the performance of (or abstention from) physical
acts: assembling with others for a worship service, participating in
sacramental use of bread and wine, proselytizing, abstaining from
certain foods or certain modes of transportation. It would be true,
we think (though no case of ours has involved the point), that a
state would be "prohibiting the free exercise [of religion]" if it
sought to ban such acts or abstentions only when they are engaged
in for religious reasons, or only because of the religious belief that
they display. It would doubtless be unconstitutional, for example, to
ban the casting of "statues that are to be used
Page 494 U. S. 878
for worship purposes," or to prohibit bowing down before a golden
calf.
Page 57 of 267
Respondents in the present case, however, seek to carry the
meaning of "prohibiting the free exercise [of religion]" one large
step further. They contend that their religious motivation for using
peyote places them beyond the reach of a criminal law that is not
specifically directed at their religious practice, and that is
concededly constitutional as applied to those who use the drug for
other reasons. They assert, in other words, that "prohibiting the
free exercise [of religion]" includes requiring any individual to
observe a generally applicable law that requires (or forbids) the
performance of an act that his religious belief forbids (or requires).
As a textual matter, we do not think the words must be given that
meaning. It is no more necessary to regard the collection of a
general tax, for example, as "prohibiting the free exercise [of
religion]" by those citizens who believe support of organized
government to be sinful than it is to regard the same tax as
"abridging the freedom . . . of the press" of those publishing
companies that must pay the tax as a condition of staying in
business. It is a permissible reading of the text, in the one case as
in the other, to say that, if prohibiting the exercise of religion (or
burdening the activity of printing) is not the object of the tax, but
merely the incidental effect of a generally applicable and otherwise
valid provision, the First Amendment has not been
offended.Compare Citizen Publishing Co. v. United States, 394 U. S.
131, 139 (1969) (upholding application of antitrust laws to
press), with Grosjean v. American Press Co., 297 U. S. 233, 297 U.
S. 250-251 (1936) (striking down license tax applied only to
newspapers with weekly circulation above a specified level); see
generally Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U. S. 575, 460 U. S. 581 (1983).
Our decisions reveal that the latter reading is the correct one. We
have never held that an individual's religious beliefs
Page 494 U. S. 879
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. As described succinctly by Justice
Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.
S. 586, 310 U. S. 594-595 (1940):
CONSTI 2 CASES Free Exercise of Religion
"Conscientious scruples have not, in the course of the long struggle
for religious toleration, relieved the individual from obedience to a
general law not aimed at the promotion or restriction of religious
beliefs. The mere possession of religious convictions which
contradict the relevant concerns of a political society does not
relieve the citizen from the discharge of political responsibilities."
(Footnote omitted.) We first had occasion to assert that principle
in Reynolds v. United States,98 U. S. 145 (1879), where we rejected
the claim that criminal laws against polygamy could not be
constitutionally applied to those whose religion commanded the
practice. "Laws," we said,
"are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. . . . Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the
land, and in effect to permit every citizen to become a law unto
himself."
Id. at 166- 98 U. S. 167.
Subsequent decisions have consistently held 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 on the ground that
the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)."
United States v. Lee, 455 U. S. 252, 455 U. S. 263, n. 3 (1982)
(STEVENS, J., concurring in judgment); see Minersville School Dist.
Bd. of Educ. v. Gobitis, supra, 310 U.S. at 310 U. S. 595(collecting
cases). In Prince v. Massachusetts, 321 U. S. 158 (1944), we held
that a mother could be prosecuted under the child labor laws
Page 494 U. S. 880
for using her children to dispense literature in the streets, her
religious motivation notwithstanding. We found no constitutional
Page 58 of 267
infirmity in "excluding [these children] from doing there what no
other children may do." Id. at 321 U. S. 171. In Braunfeld v.
Brown, 366 U. S. 599 (1961) (plurality opinion), we upheld Sunday
closing laws against the claim that they burdened the religious
practices of persons whose religions compelled them to refrain from
work on other days. In Gillette v. United States, 401 U. S. 437, 401
U. S. 461 (1971), we sustained the military selective service system
against the claim that it violated free exercise by conscripting
persons who opposed a particular war on religious grounds.
Our most recent decision involving a neutral, generally applicable
regulatory law that compelled activity forbidden by an individual's
religion was United States v. Lee, 455 U.S. at455 U. S. 258-261.
There, an Amish employer, on behalf of himself and his employees,
sought exemption from collection and payment of Social Security
taxes on the ground that the Amish faith prohibited participation in
governmental support programs. We rejected the claim that an
exemption was constitutionally required. There would be no way,
we observed, to distinguish the Amish believer's objection to Social
Security taxes from the religious objections that others might have
to the collection or use of other taxes.
"If, for example, a religious adherent believes war is a sin, and if a
certain percentage of the federal budget can be identified as
devoted to war-related activities, such individuals would have a
similarly valid claim to be exempt from paying that percentage of
the income tax. The tax system could not function if denominations
were allowed to challenge the tax system because tax payments
were spent in a manner that violates their religious belief."
Id. at 455 U. S. 260. Cf. Hernandez v. Commissioner, 490 U. S.
680 (1989) (rejecting free exercise challenge to payment of income
taxes alleged to make religious activities more difficult).
Page 494 U. S. 881
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, see
Cantwell v. Connecticut, 310 U.S. at 304, 310 U. S. 307 (invalidating
CONSTI 2 CASES Free Exercise of Religion
a licensing system for religious and charitable solicitations under
which the administrator had discretion to deny a license to any
cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S.
105 (1943) (invalidating a flat tax on solicitation as applied to the
dissemination of religious ideas); Follett v. McCormick, 321 U. S.
573 (1944) (same), or the right of parents, acknowledged in Pierce
v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of
their children, see Wisconsin v. Yoder, 406 U. S. 205(1972)
(invalidating compulsory school attendance laws as applied to
Amish parents who refused on religious grounds to send their
children to school). [Footnote 1]
Page 494 U. S. 882
Some of our cases prohibiting compelled expression, decided
exclusively upon free speech grounds, have also involved freedom
of religion, cf. Wooley v. Maynard, 430 U. S. 705 (1977)
(invalidating compelled display of a license plate slogan that
offended individual religious beliefs); West Virginia Board of
Education v. Barnette, 319 U. S. 624 (1943) (invalidating
compulsory flag salute statute challenged by religious objectors).
And it is easy to envision a case in which a challenge on freedom of
association grounds would likewise be reinforced by Free Exercise
Clause concerns. Cf. Roberts v. United States Jaycees, 468 U. S.
609, 468 U. S. 622 (1983) ("An individual's freedom to speak, to
worship, and to petition the government for the redress of
grievances could not be vigorously protected from interference by
the State [if] a correlative freedom to engage in group effort toward
those ends were not also guaranteed.").
The present case does not present such a hybrid situation, but a
free exercise claim unconnected with any communicative activity or
parental right. Respondents urge us to hold, quite simply, that
when otherwise prohibitable conduct is accompanied by religious
convictions, not only the convictions but the conduct itself must be
free from governmental regulation. We have never held that, and
decline to do so now. There being no contention that Oregon's drug
law represents an attempt to regulate religious beliefs, the
communication of religious beliefs, or the raising of one's children
in those beliefs, the rule to which we have adhered ever
since Reynolds plainly controls.
Page 59 of 267
"Our cases do not at their farthest reach support the proposition
that a stance of conscientious opposition relieves an objector from
any colliding duty fixed by a democratic government."
Gillette v. United States, supra, 401 U.S. at 401 U. S. 461.
B
Respondents argue that, even though exemption from generally
applicable criminal laws need not automatically be extended to
religiously motivated actors, at least the claim for a
Page 494 U. S. 883
religious exemption must be evaluated under the balancing test set
forth in Sherbert v. Verner, 374 U. S. 398 (1963). Under
the Sherbert test, governmental actions that substantially burden a
religious practice must be justified by a compelling governmental
interest. See id.at 374 U. S. 402-403; see also Hernandez v.
Commissioner, supra, 490 U.S. at 490 U. S. 699. Applying that test,
we have, on three occasions, invalidated state unemployment
compensation rules that conditioned the availability of benefits
upon an applicant's willingness to work under conditions forbidden
by his religion. See Sherbert v. Verner, supra; Thomas v. Review
Board, Indiana Employment Div., 450 U. S. 707 (1981); Hobbie v.
Unemployment Appeals Comm'n of Florida, 480 U. S. 136 (1987).
We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment
compensation. Although we have sometimes purported to apply
the Sherbert test in contexts other than that, we have always found
the test satisfied, see United States v. Lee, 455 U. S.
252 (1982); Gillette v. United States, 401 U. S. 437 (1971). In recent
years we have abstained from applying the Sherbert test (outside
the unemployment compensation field) at all. In Bowen v. Roy, 476
U. S. 693 (1986), we declined to apply Sherbert analysis to a
federal statutory scheme that required benefit applicants and
recipients to provide their Social Security numbers. The plaintiffs in
that case asserted that it would violate their religious beliefs to
obtain and provide a Social Security number for their daughter. We
held the statute's application to the plaintiffs valid regardless of
whether it was necessary to effectuate a compelling interest. See
id. at 476 U. S. 699-701. In Lyng v. Northwest Indian Cemetery
CONSTI 2 CASES Free Exercise of Religion
Protective Assn., 485 U. S. 439 (1988), we declined to
apply Sherbert analysis to the Government's logging and road
construction activities on lands used for religious purposes by
several Native American Tribes, even though it was undisputed that
the activities "could have devastating effects on traditional Indian
religious practices," 485 U.S. at 485 U. S. 451.
Page 494 U. S. 884
In Goldman v. Weinberger, 475 U. S. 503 (1986), we rejected
application of the Sherbert test to military dress regulations that
forbade the wearing of yarmulkes. In O'Lone v. Estate of
Shabazz, 482 U. S. 342 (1987), we sustained, without mentioning
the Sherbert test, a prison's refusal to excuse inmates from work
requirements to attend worship services.
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.
The Sherbert test, it must be recalled, was developed in a context
that lent itself to individualized governmental assessment of the
reasons for the relevant conduct. As a plurality of the Court noted
in Roy, a distinctive feature of unemployment compensation
programs is that their eligibility criteria invite consideration of the
particular circumstances behind an applicant's unemployment:
"The statutory conditions [in Sherbert and Thomas] provided that a
person was not eligible for unemployment compensation benefits if,
'without good cause,' he had quit work or refused available work.
The 'good cause' standard created a mechanism for individualized
exemptions."
Bowen v. Roy, supra, 476 U.S. at 476 U. S. 708 (opinion of Burger,
C.J., joined by Powell and REHNQUIST, JJ.). See also Sherbert,
supra, 374 U.S. at 374 U. S. 401 n. 4 (reading state unemployment
compensation law as allowing benefits for unemployment caused
by at least some "personal reasons"). As the plurality pointed out
in Roy, our decisions in the unemployment cases stand for the
proposition that where the State has in place a system of individual
exemptions, it may not refuse to extend that system to cases of
"religious hardship" without compelling reason. Bowen v. Roy,
supra, 476 U.S. at 476 U. S. 708.
Page 60 of 267
Whether or not the decisions are that limited, they at least have
nothing to do with an across-the-board criminal prohibition on a
particular form of conduct. Although, as noted earlier, we have
sometimes used the Sherbert test to analyze free exercise
challenges to such laws, see United States v.
Page 494 U. S. 885
Lee, supra, 455 U.S. at 455 U. S. 257-260; Gillette v. United States,
supra, 401 U.S. at 401 U. S. 462, we have never applied the test to
invalidate one. We conclude today that the sounder approach, and
the approach in accord with the vast majority of our precedents, is
to hold the test inapplicable to such challenges. The government's
ability to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of public
policy, "cannot depend on measuring the effects of a governmental
action on a religious objector's spiritual development." Lyng,
supra, 485 U.S. at 485 U. S. 451. To make an individual's obligation
to obey such a law contingent upon the law's coincidence with his
religious beliefs, except where the State's interest is "compelling" --
permitting him, by virtue of his beliefs, "to become a law unto
himself," Reynolds v. United States, 98 U.S. at 98 U. S. 167 --
contradicts both constitutional tradition and common sense.
[Footnote 2]
The "compelling government interest" requirement seems benign,
because it is familiar from other fields. But using it as the standard
that must be met before the government may accord different
treatment on the basis of race, see, e.g.,
Page 494 U. S. 886
Palmore v. Sidoti, 466 U. S. 429, 466 U. S. 432 (1984), or before the
government may regulate the content of speech, see, e.g., Sable
Communications of California v. FCC, 492 U. S. 115(1989), is not
remotely comparable to using it for the purpose asserted here.
What it produces in those other fields -- equality of treatment, and
an unrestricted flow of contending speech -- are constitutional
norms; what it would produce here -- a private right to ignore
generally applicable laws -- is a constitutional anomaly. [Footnote 3]
CONSTI 2 CASES Free Exercise of Religion
Nor is it possible to limit the impact of respondents' proposal by
requiring a "compelling state interest" only when the conduct
prohibited is "central" to the individual's religion. Cf. Lyng v.
Northwest Indian Cemetery Protective Assn., supra, 485 U.S. at 485
U. S. 474-476 (BRENNAN, J., dissenting). It is no
Page 494 U. S. 887
more appropriate for judges to determine the "centrality" of
religious beliefs before applying a "compelling interest" test in the
free exercise field than it would be for them to determine the
"importance" of ideas before applying the "compelling interest" test
in the free speech field. What principle of law or logic can be
brought to bear to contradict a believer's assertion that a particular
act is "central" to his personal faith? Judging the centrality of
different religious practices is akin to the unacceptable "business of
evaluating the relative merits of differing religious claims." United
States v. Lee, 455 U.S. at 455 U. S. 263n. 2 (STEVENS, J.,
concurring). As we reaffirmed only last Term,
"[i]t is not within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity of particular
litigants' interpretation of those creeds."
Hernandez v. Commissioner, 490 U.S. at 490 U. S. 699. Repeatedly
and in many different contexts, we have warned that courts must
not presume to determine the place of a particular belief in a
religion or the plausibility of a religious claim. See, e.g., Thomas v.
Review Board, Indiana Employment Security Div., 450 U.S. at 450
U. S. 716; Presbyterian Church v. Hull Church, 393 U.S. at 393 U. S.
450; Jones v. Wolf, 443 U. S. 595, 443 U. S. 602-606 (1979); United
States v. Ballard, 322 U. S. 78, 322 U. S. 85-87 (1944). [Footnote 4]
Page 494 U. S. 888
If the "compelling interest" test is to be applied at all, then, it must
be applied across the board, to all actions thought to be religiously
commanded. Moreover, if "compelling interest" really means what
it says (and watering it down here would subvert its rigor in the
other fields where it is applied), many laws will not meet the test.
Any society adopting such a system would be courting anarchy, but
that danger increases in direct proportion to the society's diversity
Page 61 of 267
of religious beliefs, and its determination to coerce or suppress
none of them. Precisely because "we are a cosmopolitan nation
made up of people of almost every conceivable religious
preference," Braunfeld v. Brown, 366 U.S. at 366 U. S. 606, 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 rule
respondents favor would open the prospect of constitutionally
required religious exemptions from civic obligations of almost every
conceivable kind -- ranging from
Page 494 U. S. 889
compulsory military service, see, e.g., Gillette v. United States, 401
U. S. 437 (1971), to the payment of taxes, see, e.g., United States
v. Lee, supra; to health and safety regulation such as manslaughter
and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695
(Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude
v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g.,
Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878
F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312
U. S. 569(1941); to social welfare legislation such as minimum
wage laws, see Susan and Tony Alamo Foundation v. Secretary of
Labor, 471 U. S. 290 (1985), child labor laws, see Prince v.
Massachusetts, 321 U. S. 158 (1944), animal cruelty laws, see, e.g.,
Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp.
1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d
179, appeal dism'd, 336 U.S. 942 (1949), environmental protection
laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and
laws providing for equality of opportunity for the races, see, e.g.,
Bob Jones University v. United States, 461 U. S. 574, 461 U. S. 603-
604 (1983). The First Amendment's protection of religious liberty
does not require this. [Footnote 5]
Page 494 U. S. 890
Values that are protected against government interference through
enshrinement in the Bill of Rights are not thereby banished from
the political process. Just as a society that 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
CONSTI 2 CASES Free Exercise of Religion
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. It is therefore not surprising that a
number of States have made an exception to their drug laws for
sacramental peyote use. See, e.g.,Ariz.Rev.Stat.Ann. § 13-3402(B)
(1) (3) (1989); Colo.Rev.Stat. § 12-22-317(3) (1985); N.M.Stat.Ann. §
30-31-6(D) (Supp.1989). But to say that a nondiscriminatory
religious practice exemption is permitted, or even that it is
desirable, is not to say that it is constitutionally required, and that
the appropriate occasions for its creation can be discerned by the
courts. It may fairly be said that leaving accommodation to the
political process will place at a relative disadvantage those religious
practices that are not widely engaged in; but that unavoidable
consequence of democratic government must be preferred to a
system in which each conscience is a law unto itself or in which
judges weigh the social importance of all laws against the centrality
of all religious beliefs.
****
Because respondents' ingestion of peyote was prohibited under
Oregon law, and because that prohibition is constitutional, Oregon
may, consistent with the Free Exercise Clause, deny respondents
unemployment compensation when their dismissal results from use
of the drug. The decision of the Oregon Supreme Court is
accordingly reversed.
It is so ordered.
VOL. 366, SEPTEMBER 27, 2001 113
Long vs. Basa
G.R. Nos. 134963-64. September 27, 2001.*
ALFREDO LONG and FELIX ALMERIA, petitioners, vs. LYDIA
BASA, ANTHONY SAYHEELIAM and YAO CHEK,
respondents.
G.R. Nos. 135152-53. September 27, 2001.*
LIM CHE BOON, TAN HON KOC, JOSEPH LIM and LIU YEK SEE,
petitioners, vs. LYDIA BASA, ANTHONY SAYHEELIAM and
YAO CHEK, respondents.
Page 62 of 267
 G.R. No. 137135. September 27, 2001.*
LIM CHE BOON, TAN HON KOC, JOSEPH LIM and LIU YEK SEE,
petitioners, vs. LYDIA BASA, ANTHONY SAYHEELIAM and
YAO CHEK, respondents.
Remedial Law; Judgments; The orderly administration of
justice requires that the judgments/resolutions of a court or quasi-
judicial body must reach a point of finality set by the law, rules and
regulations.—In this regard, what we said in Fortich vs. Corona, et
al. bears repeating: “The orderly administration of justice requires
that the judgments/resolutions of a court or quasi-judicial
body must reach a point of finality set by the law, rules and
regulations. The noble purpose is to write finis to disputes once and
for all. This is a fundamental principle in our justice system, without
which there would be no end to litigations. Utmost respect and
adherence to this principle must always be maintained by those
who wield the power of adjudication. Any act which violates such
principle must immediately be struck down.”
Same; Same; The rule on finality of decisions, orders or
resolutions of a judicial, quasi-judicial or administrative body is not
a question of technicality but of substance and merit.—Let it not be
said that the denial of the present petitions, even on this ground
alone, is a mere technicality. In the aforecited case of Fortich vs.
Corona, we held that once a case had been resolved with finality,
vested rights were acquired by the winning party. Consequently,
the rule on finality of decisions, orders or resolutions of a judicial,
quasi-judicial or administrative body is “not a question of techni-
_______________
*
THIRD DIVISION.
114
1 SUPREME COURT REPORTS ANNOTATED
14
Long vs. Basa
cality but of substance and merit,” the underlying
consideration therefor being the protection of the substantive rights
of the winning party.
Constitutional Law; Due Process; It is a well-settled principle in
law that what due process contemplates is freedom from
arbitrariness, what it requires is fairness and justice, substance
rather than the form, being paramount.—Consequently, the
expulsion was not tainted with any arbitrary treatment from the
CONSTI 2 CASES Free Exercise of Religion
members of the Board of Directors who, since 1988 up to August
30, 1993, or approximately five (5) years, have patiently exhorted
and warned the dissident members. This long period of time is
more than adequate an opportunity for the erring members and
their followers to contemplate upon their covenant with the
CHURCH on their duty to protect and promote its Principles of Faith
and not to violate them. It is a well-settled principle in law that
what due process contemplates is freedom from arbitrariness; what
it requires is fairness and justice; substance, rather than the form,
being paramount. What it prohibits is not the absence of previous
notice but the absolute absence thereof. A formal or trial type
hearing is not at all times and in all instances essential.
MELO, J., Dissenting Opinion:
Remedial Law; Courts; Civil courts can review proceedings
undertaken by religious organizations and may interfere with the
internal affairs thereof, as law and justice so require, when the acts
complained of contravene the basic law of the land and violate the
civil rights of its members.—As clearly stated in Lions Club
International, the general rule of non-interference admits of certain
exception: The civil courts can review proceedings undertaken by
religious organizations and may interfere, so to speak, with the
internal affairs thereof, as law and justice so require, when the acts
complained of contravene the basic law of the land and violate the
civil rights of its members. More specifically, where there is fraud,
oppression, or bad faith, and where the action of the leaders of the
organization is capricious, arbitrary, and unjustly discriminatory,
the civil courts may exercise judicial power. The courts will likewise
exercise jurisdiction to grant relief in case property or civil rights
are invaded, although it has also been held that involvement of
property rights does not necessarily authorize judicial intervention,
in the absence of arbitrariness, fraud, and collusion.
PETITIONS for review on certiorari of a decision of the Court of
Appeals.
115
VOL. 366, SEPTEMBER 27, 2001 115
Long vs. Basa
The facts are stated in the opinion of the Court.
Page 63 of 267
 Villanueva, Bernardo & Gabionza for petitioners A. Long and
Almeria.
Sobreviñas, Diaz, Hayudini and Bodegon for petitioners L.C.
Boon, T.H. KOC, J. Lim, L.Y. See.
De Borja, Medialdea, Bello, Guevarra, Serapio & 1. (a)The Old and the New Testaments comprising the Holy
Gerodiascollaborating counsel for petitioners.
Estelito P. Mendoza and Carpio, Villaraza & Cruz for
respondents L. Basa and A. Sayleehiam.
Joaquin Garaygay for respondent Y. Chek.
SANDOVAL-GUTIERREZ, J.:
These are consolidated cases involving a religious corporation
whose Board of Directors had expelled certain members thereof on
purely spiritual or religious grounds since they refused to follow its
teachings and doctrines. The controversy here centers on the
legality of the expulsion.
The facts, as found by the Court of Appeals and as culled from
the voluminous records of these cases, may be stated as follows:
In 1973, a religious group known as ‘The Church In Quezon City
(Church Assembly Hall), Incorporated” (“CHURCH” for brevity),
located at 140 Talayan St., Talayan Village, Quezon City, was
organized as “an entity of the brotherhood in Christ.”1
It was registered in the same year with the Securities and
Exchange Commission (SEC) as a non-stock, non-profit religious
corporation for the administration of its temporalities or the
management of its properties.2
The Articles of Incorporation and By-laws of the CHURCH decree
that its affairs and operation shall be managed by a Board of
_______________
1
Article III, par. 1, By-laws; Annex “M,” Petition; Rollo, Vol. I, p.
176.
2
Par. 6, Articles of Incorporation; Rollo, Vol. II, p. 1030.
116
116 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
Directors consisting of six (6) members, 3 who shall be members of
the CHURCH.4
As a “brotherhood in Christ,” the CHURCH embraced the
“Principles of Faith” that “every member or officer” thereof “shall,
CONSTI 2 CASES Free Exercise of Religion
without mental reservation, adhere strictly to the doctrine, teaching
and faith being observed by the (CHURCH) in proclaiming the
Gospel of Christ, to save lost souls, to lead men in worshipping the
true God, in accordance with the Holy Bible and to believe:
Bible as-inspired by God;
2. (b)The Trinity of the God-Head, which is God the Father, God
the Son and God the Holy Spirit.
3. (c)That Jesus Christ, the only begotten Son of the Living
God, conceived by the Virgin Mary through the Holy Spirit,
and possessing the nature of both God and man, and who
died on the cross to save mankind, was buried, rose again
on the third day, has ascended up to heaven, and will
come back to reign as King someday.
4. (d)That the only way to salvation is solely by trusting on the
shed blood of Jesus and the conviction of the Holy Spirit.” 5
Zealous in upholding and guarding their Christian faith, and to
ensure unity and uninterrupted exercise of their religious belief, the
members of the CHURCH vested upon the Board of Directors the
absolute power “(to preserve and protect the(ir) faith” 6 and
to admit7and expel8 a member of the CHURCH.
Admission for membership in the CHURCH is so exacting. Only
“persons zealous of the Gospel, faithful in Church work and of
sound knowledge of the Truth, as the Board of Directors shall admit
to membership, shall be members of the (CHURCH).”9
________________
3
Par. 7, ibid.; Article IV, pars. 1 & 4, By-laws.
4
Article IV, par. 1, By-laws.
5
Article III (Declaration of Principles of Faith), par. 2, By-laws.
6
Article IV, par. 4 (a), By-laws; Rollo, Vol. I, p. 177.
7
Article VII, pars. 1 & 2, By-laws; Rollo, Vol. I, pp. 179-180.
8
Ibid., par. 4; Rollo, Vol. I, p. 180.
9
Ibid., par. 1.
117
VOL. 366, SEPTEMBER 27, 2001 117
Long vs. Basa
Page 64 of 267
The procedure for the expulsion of an erring or dissident member is
prescribed in Article VII (paragraph 4) of the CHURCH By-laws,
which provides that “If it is brought to the notice of the Board of
Directors that any member has failed to observe any regulations
and By-laws of the Institution (CHURCH) or the conduct of any
member has been dishonorable or improper or otherwise injurious
to the character and interest of the Institution, the Board of
Directors may b(y) resolution without assigning any reason therefor
expel such member from such Institution and he shall then forfeit
his interest, rights and privileges in the Institution.”
As early as 1988, the Board of Directors observed that certain
members of the CHURCH, including petitioners herein, exhibited
“conduct which was dishonorable, improper and injurious to the
character and interest of the (CHURCH)” 10 by “introducing (to the
members) doctrines and teachings which were not based on the
Holy Bible” and the Principles of Faith embraced by the CHURCH. 11
Confronted with this situation, the respondents, as members of
the Board of Directors, and some responsible members of the
CHURCH, advised the petitioners “to correct their ways” 12 and
reminded them “that under the By-laws, this organization is only for
worshipping the true God, not to worship Buddha or men.” 13 The
respondents also warned them that if they persist in their highly
improper conduct, they will be dropped from the membership of the
CHURCH.14
These exhortations and warnings to the erring members were
made during Sunday worship gatherings, “in small group meetings
_______________
10
Transcript of Stenographic Notes (TSN) of the testimony of
Anthony Sayheeliam (member of the Board of Directors) in the SEC-
Perea case, December 1, 1993, pp. 9-10; Annex “2” of
Respondents’ Consolidated Comment; Rollo, Vol. II, pp. 1080-1081.
11
Rollo, Vol. II, p. 899.
12
Ibid., p. 1081.
13
Ibid.
14
Ibid., p. 1082.
118
118 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
CONSTI 2 CASES Free Exercise of Religion
and even one-on-one personal talk with them.” 15 Since
1988,16 these warnings were announced by the members of the
Board “(sometimes once a week (when they) meet together.” 17
But petitioners ignored these repeated admonitions.
Alarmed that petitioners’ conduct will continue to undermine the
integrity of the Principles of Faith of the CHURCH, the Board of
Directors, during its August 30, 1993 regular meeting 18 held for the
purpose of reviewing and updating the membership list of the
CHURCH, removed from the said list certain names of members,
including the names of herein petitioners Joseph Lim, Liu Yek See,
Alfredo Long and Felix Almeria.19 They were removed for espousing
doctrines inimical or injurious to the Principles of Faith of the
CHURCH. The Board also updated the list by removing the names of
those who have migrated to other countries, those deceased and
those whom the CHURCH had lost contact with. 20 The resolution
adopted by the Board in that August 30, 1993 meeting reads in
part:
“Director Anthony Sayheeliam announced that the regular meeting
is to review, update and approve the list of corporate membership.
After due deliberation and upon motion duly made and seconded,
the following resolutions were approved and adopted:
“RESOLVED, AS IT IS HEREBY RESOLVED, that the list of
corporate membership of this Institution as shown on Annex “A” is
hereby reviewed, updated and approved by the Board.
“RESOLVED, FURTHER, AS IT IS HEREBY FURTHER RESOLVED,
that the Board approved that those who are not included in the said
list of corporate membership of this Institution are no longer
considered as a corporate member of this Institution.
_______________
15
Ibid.
16
Ibid., p. 1083.
17
Ibid., p. 1082.
18
Minutes of the August 30, 1993 regular meeting of the Board
of Directors, Rollo, Vol. II, p. 1041.
19
Rollo, Vol. II, p. 1040.
20
See testimony of Anthony Sayheeliam, supra.
119
VOL. 366, SEPTEMBER 27, 2001 119
Long vs. Basa
Page 65 of 267
“RESOLVED, FINALLY, AS IT IS HEREBY RESOLVED, that any or all
previous lists of membership are hereby superseded, revoked
and/or rendered null, void and of no effect.
“There being no further business and no other matter to
transact, the meeting was thereupon adjourned.”21
All the then six (6) members of the Board, namely, Directors Lim
Che Boon, Tan Hon Koc (herein petitioners), Anthony Sayheeliam,
Leandro Basa, Yao Chec and Lydia L. Basa (herein respondents)
“were duly informed” of that meeting. 22 However, Directors Lim Che
Boon and Tan Hon Koc did not appear. 23 Thus, the above-quoted
resolution was signed only by Directors Anthony Sayheeliam,
Leandro Basa, Yao Chec and Lydia L. Basa who composed the
majority of the Board.
The updated membership list approved by the Board on August
30, 1993, together with the minutes of the meeting, were duly filed
with the SEC on September 13, 1993.24
On September 29, 1993, petitioners Lim Che Boon, Tan Hon Koc,
Joseph Lim, Liu Yek See and others questioned their expulsion by
filing with the SEC Securities Investigation and Clearing
Department a petition,25 docketed as SEC Case No. 09-93-4581
(and later a supplemental petition) against Directors Yao Chek,
Leandro Basa, Lydia Basa and Anthony Sayheeliam. It sought
mainly the annulment of the August 30, 1993 membership list and
the reinstatement of the original list on the ground that the
expulsion was made without prior notice and hearing. The case was
assigned to SEC Hearing Officer Manuel Perea (the “Perea case”).
The petition also prayed for the issuance of a temporary
restraining order (TRO) and a writ of preliminary injunction
principally to enjoin the Board of Directors from holding any
election of a
new set of directors among the members named in the August 30,
1993 list of corporate membership.
After conducting a hearing on the application for a writ of
preliminary injunction, SEC Hearing Officer Manuel Perea denied the
same in an order dated February 22, 1994.26 Perea ruled inter
alia that the expulsion was in accordance with the aforequoted
provisions of paragraph 4, Article VII of the CHURCH By-laws,
reasoning that “the notice referred to (in par. 4) is notice to the
Board of Directors of the grounds for expulsion enumerated therein
and not notice to the (erring) members. . . .” 27 Perea’s order further
stated: “It is also clear (from par. 4) that the resolution of expulsion
need not state the reason for expelling a member.” 28
Petitioners elevated Perea’s order of February 22, 1994 to the
SEC en banc via a petition for certiorari, docketed as SEC EB Case
No. 389.29 The SEC, in an en banc decision dated July 11,
1994,30affirmed the Perea ruling and “dismissed for lack of merit”
the petition.
Petitioners did not appeal from the decision of the SEC en
banc.31
Since the said SEC en banc decision pertains only to the
preliminary injunction incident, the SEC, through a hearing panel,
conducted further proceedings to hear and decide the permissive
counterclaim and third-party complaint incorporated in
respondents’ supplemental answer, including their prayer for
injunctive relief to prevent petitioners from interfering and usurping
the functions of the Board of Directors.32
Petitioners subsequently filed motions to dismiss/strike out the
counterclaim and third-party complaint. But the motions were
_______________

_______________ 26
See Annex “A” (assailed decision of the Court of Appeals),
Petition, Rollo, Vol. I, pp. 61-63.
21
Rollo, Vol. II, pp. 1040-1041. 27
Ibid., p. 62.
22
Ibid. See also testimony of Anthony Sayheeliam (TSN, Dec. 1, 28
Ibid.
1993, pp. 6-7); Rollo, Vol. II, pp: 1077-1078, 1026-1027. 29
Ibid., p. 63.
23
Ibid. 30
Annex “2,” Respondents’ Consolidated Comment, Rollo, Vol. II
24
Annexes “D” and “E,” Petition, Rollo, Vol. I, pp. 118-119. pp. 1124-1130.
25
Annex “F,” Petition, Rollo, Vol. I, p. 120. 31
Petition dated October 1, 1998, par. 28.
120 32
Ibid., p. 69.
120 SUPREME COURT REPORTS ANNOTATED 121
Long vs. Basa VOL. 366, SEPTEMBER 27, 2001 121

CONSTI 2 CASES Free Exercise of Religion Page 66 of 267

 Long vs. Basa
denied by the hearing panel in its omnibus order dated October 2,
1995. The said order also declined to act on respondents’ third-
party complaint’s prayer for injunctive relief since “there is a case
pending before another Hearing Officer in SEC Case No. 4994 for
the declaration of nullity of the general membership meeting held
on February 12, 1995.”33
Upon denial of the separate motions for reconsideration of both
parties, the respondents filed with the SEC en banc a petition for
review on certiorari, docketed as SEC EB Case No. 484. A review of
the records show that the issue posed in this case is also the
validity of the questioned expulsion already resolved by the SEC en
banc in its decision dated July 11, 1994 in SEC EB Case No. 389
which had attained finality.
On July 31, 1996, the SEC en banc, by a vote of two to one, with
one Commissioner abstaining, issued an order in SEC EB Case No.
484, setting aside the expulsion of certain members of the CHURCH
approved by its Board of Directors on August 30, 1993 for being
void and ordering the reinstatement of petitioners as members of
the CHURCH.
Promptly, herein respondents Anthony Sayheeliam and Lydia
Basa filed a petition for review with the Court of Appeals, docketed
as CA-G.R. SP No. 41551,34 assailing the July 31, 1996 order.
Respondent Yao Chek, for his part, filed a motion for
reconsideration of the order of July 31, 1996. Upon denial of his
motion, he also filed with the Court of Appeals a petition for review,
docketed as CA-G.R. SP No. 43389. This case was consolidated
with CA-G.R. SP No. 41551.35
On May 29, 1998, the Court of Appeals promulgated its now
assailed decision granting respondents’ consolidated petitions and
reversing the July 31, 1996 order of the SEC en banc in SEC EB
Case No. 484.
______________
33
Assailed Decision of the Court of Appeals, Rollo, p. 70.
34
Annex “DD,” Petition, dated Oct. 1, 1998.
35
Annex “KK,” ibid.
122
122 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
CONSTI 2 CASES Free Exercise of Religion
Petitioners filed a motion for reconsideration but was denied by the
appellate court in a resolution dated August 18, 1998.36
Hence, the present consolidated petitions for review by
Certiorari (G.R. Nos. 134963-64 and G.R. Nos. 135152-53) under
Rule 45 of the 1997 Rules of Civil Procedure, as amended.
The pith issue in the instant cases, as correctly defined by the
Court of Appeals in its challenged decision and resolution, is
whether the expulsion of petitioners Joseph Lim, Liu Yek See,
Alfredo Long and Felix Almeria from the membership of the
CHURCH by its Board of Directors through a resolution issued on
August 30, 1993 is in accordance with law.
Petitioners insist that the expulsion is void since it was rendered
without prior notice to them or, in a constitutional context, without
due process.
On the other hand, respondents assert that the expulsion is in
accordance with the By-laws of the CHURCH.
We rule against the petitioners.
It must be emphasized that the issue of the validity of the
expulsion had long been resolved and declared valid by the SEC en
banc in its decision dated July 11, 1994 in SEC EB Case No. 389.
The decision affirmed the order dated February 22, 1994 of SEC
Hearing Officer Manuel Perea in SEC Case No. 09-93-4581. The
petitioners themselves admitted in their present petition that they
did not appeal anymore from the July 11, 1994 decision of the
SEC en banc,37 thereby rendering the same final and conclusive. As
such, the expulsion order is now inextricably binding on the parties
concerned and can no longer be modified, much less reversed.
What was definitely resolved in the Perea decision and in SEC EB
Case No. 389 was the validity of the expulsion proceedings
conducted by the Board of Directors in its meeting on August 30,
1993 wherein a Resolution updating the membership list of the
CHURCH was approved. On the other hand, the SEC hearing panel
conducted further proceedings only to decide the permissive
_______________
36
Annex “B,” Petition dated Oct. 1, 1998.
37
Petition, ibid., par. 28.
123
VOL. 366, SEPTEMBER 27, 2001 123
Long vs. Basa
Page 67 of 267
counterclaim and third-party complaint incorporated
in respondents’ supplemental answer, including their prayer for
injunctive relief to prevent petitioners from interfering and
usurping the functions of the Board of Directors.
Thus, we find accurate the following findings and conclusion of
the Court of Appeals on this matter:
“. . . . It ought to be recalled that when Hearing Officer Perea
denied the herein respondents’ (now petitioners’) prayer
for in-junctive relief inSEC Case No. 09-93-4581 to stop the
herein petitioners (now respondents) from calling a
membership meeting on the basis of the expurgated list of
membership dated August 30, 1993, they interposed in SEC EB
Case No. 389 a petition to review the order of denial. Then
and there, the SEC en banc rendered its decision dated July
11, 1994 sustaining Hearing Officer Perea on the
ratiocination that the expulsion of members effected on
August 30, 1993 by the board of directors was valid having
been done in accordance with the by-laws of the CHURCH,
and although the herein respondents (now petitioners)
subsequently sought the dismissal of SEC Case No. 09-93-
4581, the order of dismissal explicitly stated that it did not
encompass the herein petitioners’ (now respondents’)
permissive counterclaim and third-party complaint. Thus,
further proceedings were conducted which culminated in
the issuance of the Hearing Panel’s Omnibus Orders dated
October 2, 1995 and January 19, 1996, which were elevated,
this time by the herein petitioners (now respondents), to
the SEC en banc in a petition for review on certiorari
docketed as SEC EB Case No. 484. It was in this latter case that
the SEC en banc handed down its assailed order of July 31, 1996 in
violation of the law of the case that was earlier laid down
with finality in SEC EB Case No. 389.
xxx xxx xxx
“Thusly, the question on the validity of the expulsion of
some of the members of the CHURCH was squarely raised
and frontally resolved in the decision rendered in SEC EB
Case No. 389.”38 (Emphasis ours)
Clearly, the issuance by the SEC en banc of its July 31, 1996 order
in SEC EB Case No. 484, which reopened the very same issue
_______________
38
Assailed Decision of the Court of Appeals, Rollo, pp. 88, 90.
CONSTI 2 CASES Free Exercise of Religion
124
124 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
of the validity of the expulsion proceedings, completely
reversing its final and executory en banc decision of July 11, 1994
(SEC EB Case No. 389), is certainly in gross disregard of the rules
and basic legal precept that accord finality to administrative, quasi-
judicial and judicial determinations.
The Court of Appeals is, therefore, correct in voiding the SEC en
banc orders dated July 31, 1996 and January 29, 1997 in SEC EB
Case No. 484, thereby upholding the expulsion of petitioners and
others by the Board of Directors on August 30, 1993.
In this regard, what we said in Fortich vs. Corona, et al.39 bears
repeating: “The orderly administration of justice requires that the
judgments/resolutions of a court or quasi-judicial body must reach
a point of finality set by the law, rules and regulations. The noble
purpose is to write finis to disputes once and for all. This is a
fundamental principle in our justice system, without which there
would be no end to litigations. Utmost respect and adherence to
this principle must always be maintained by those who wield the
power of adjudication. Any act which violates such principle must
immediately be struck down.”40
Let it not be said that the denial of the present petitions, even
on this ground alone, is a mere technicality. In the aforecited case
of Fortich vs. Corona, we held that once a case had been resolved
with finality, vested rights were acquired by the winning
party.41Consequently, the rule on finality of decisions, orders or
resolutions of a judicial, quasi-judicial or administrative body is “not
a question of technicality but of substance and merit,”42 the
underlying consideration therefor being the protection of the
substantive rights of the winning party. 43 In the succinct words of
Mr. Justice Artemio V. Panganiban in the case of Videogram
Regulatory Board vs. Court of Appeals, et al.,44 “Just as a losing
party has the right to
_______________
39
289 SCRA 624 (1998).
40
Ibid., at p. 651.
41
298 SCRA 679, 693 (1998); 312 SCRA 751, 760 (1999).
42
Ibid., p. 693.
43
Fortich vs. Corona, 312 SCRA 751, 760 (1999).
Page 68 of 267
 44
265 SCRA 50-51, 56 (1996), cited in Fortich vs. Corona, 298
SCRA 679, 693 (1998).
125
VOL. 366, SEPTEMBER 27, 2001 125
Long vs. Basa
file an appeal within the prescribed period, the winning party also
has the correlative right to enjoy the finality of the resolution of
his/her case.”
Be that as it may, we find baseless petitioners’ claim that their-
expulsion was executed without prior notice or due process.
In the first place, the By-laws of the CHURCH, which the
members have expressly adhered to, does not require the Board of
Directors to give prior notice to the erring or dissident members in
cases of expulsion. This is evident from the procedure for expulsion
prescribed in Article VII (paragraph 4) of the By-laws, which reads:
“4. If it is brought to the notice of the Board of Directors that any
member has failed to observe any regulations and By-laws of the
Institution (CHURCH) or the conduct of any member has been
dishonorable or improper or otherwise injurious to the character
and interest of the Institution, the Board of Directors may b(y)
resolution without assigning any reason therefor expel such
member from such Institution and he shall then forfeit his interest,
rights and privileges in the Institution.” (Emphasis ours)
From the above-quoted By-law provision, the only requirements
before a member can be expelled or removed from the
membership of the CHURCH are: (a) the Board of Directors has
been notified that a member has failed to observe any regulations
and By-laws of the CHURCH, or the conduct of any member has
been dishonorable or improper or otherwise injurious to the
character and interest of the CHURCH, and (b) a resolution is
passed by the Board expelling the member concerned, without
assigning any reason therefor.
It is thus clear that a member who commits any of the causes
for expulsion enumerated in paragraph 4 of Article VII may be
expelled by the Board of Directors, through a resolution, without
giving that erring member any notice prior to his expulsion. The
resolution need not even state the reason for such action.
The CHURCH By-law provision on expulsion, as phrased, may
sound unusual and objectionable to petitioners as there is no
requirement of prior notice to be given to an erring member before
he can be expelled. But that is how peculiar the nature of a
religious
CONSTI 2 CASES Free Exercise of Religion
126
126 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
corporation is vis-à-vis an ordinary corporation organized for profit.
It must be stressed that the basis of the relationship between a
religious corporation and its members is the latter’s absolute
adherence to a common religious or spiritual belief. Once this basis
ceases, membership in the religious corporation must also cease.
Thus, generally, there is no room for dissension in a religious
corporation. And where, as here, any member of a religious
corporation is expelled from the membership for espousing
doctrines and teachings contrary to that of his church, the
established doctrine in this jurisdiction is that such action from the
church authorities is conclusive upon the civil courts. As far back in
1918, we held in United States vs. Canete45 that:
“. . . in matters purely ecclesiastical the decisions of the proper
church tribunals are conclusive upon the civil tribunals. A church
member who is expelled from the membership by the church
authorities, or a priest or minister who is by them deprived of his
sacred office, is without remedy in the civil courts, which will not
inquire into the correctness of the decisions of the ecclesiastical
tribunals.”46 (Emphasis ours)
Obviously recognizing the peculiarity of a religious corporation, the
Corporation Code leaves the matter of ecclesiastical discipline to
the religious group concerned.
Section 91 of the Corporation Code, which has been made
explicitly applicable to religious corporations by the second
paragraph of Section 109 of the same Code, states:
“SEC. 91. Termination of membership.—Membership shall
be terminated in the manner and for the causes provided in the
articles of incorporation or the by-laws. Termination of membership
shall have the effect of extinguishing all rights of a member in the
corporation or in its property, unless otherwise provided in the
articles of incorporation or the by-laws.” (Emphasis ours)
Moreover, the petitioners really have no reason to bewail the lack
of prior notice in the By-laws. As correctly observed by the Court of
Appeals, they have waived such notice by adhering to
_______________
45
38 Phil. 253.
46
Ibid., p. 260.
Page 69 of 267
 127
VOL, 366, SEPTEMBER 27, 2001 127
Long vs. Basa
those By-laws. They became members of the CHURCH voluntarily.
They entered into its covenant and subscribed to its rules. By doing
so, they are bound by their consent.47
Even assuming that petitioners’ expulsion falls within the
Constitutional provisions on “prior notice” or “due process,” still we
can not conclude that respondents committed a constitutional
infraction. It bears emphasis that petitioners were given more than
sufficient notice of their impending expulsion, as shown by the
records.
We have narrated earlier the events which led to the questioned
expulsion. From the undisputed testimony of Director Anthony
Sayheeliam (now respondent), it is clear that, as early as 1988, the
respondents-Board of Directors patiently and persistently reminded,
advised and exhorted the erring members, including herein
petitioners, to stop espousing doctrines, teachings and religious
belief diametrically opposed to the Principles of Faith embraced by
the CHURCH. The respondents-Board of Directors further warned
them during Sunday worship gatherings, in small group meetings
and one-on-one talk, that they would face disciplinary action and
be dropped from the membership roll should they continue to
exhibit acts inimical and injurious to the teachings of the Holy Bible
which the CHURCH so zealously upholds.
When they ignored petitioners’ exhortations and warnings, the
erring members should not now complain about their expulsion
from the membership of the CHURCH by the Board of Directors on
August 30, 1993.
The Court of Appeals, whose findings of fact is accorded great
respect as the same is conclusive on us, made a precise
observation on this matter:
“. . . . the petitioners (now respondents) further state that the
Board of Directors, before deciding to purge their list of
membership, gave the erring members sufficient warning of their
impending ouster. Thus:
‘. . . the records of the instant case indisputably show that the
erring members of the corporation, including respondents (now
petitioners) Lim Che Boon, Joseph Lim, Tan Hon
_______________
CONSTI 2 CASES Free Exercise of Religion
47
Ibid., pp. 261-262.
128
128 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
Koc, Liu Yek See, Felix Almeria and Alfredo Long, were given more
than sufficient notice that the perpetration of acts inimical to and
inconsistent with the Articles of Faith of the Corporation will be
subject to disciplinary authority of the Board of Directors:
(Testimony of Anthony Sayheeliam, member of the Board of
Directors)
Q You mentioned that former members of the Corporation were
. dropped or expelled due to violations of the principles of faith
under the Articles of Incorporation and the By-laws, as well
as for conduct which was dishonorable, improper and
injurious to the character and interest of the corporation.
When did the Board first note or observe these violations?
A The Board noticed that since 1988.
.
Q As a member of the Board of Directors, what actions did you
. take after the board observed these violations?
A We warned them and advised them to correct their ways of
. doing these things.
Q As a member of the Board of Directors, what did you say or
. do in order to convince these former members to correct
their ways?
A We told them that under the By-laws this organization is only
. for worshipping the true God, not to worship Buddha or men.
Q You also mentioned that you gave warnings to these errant
. members. As a member of the Board of Directors, what did
you do or say to warn these former members of the
consequences of their acts?
A Especially to the members of the organization, they should
. take all the consequences. Otherwise, they will be dropped.
Q These warnings and statements advising them to correct
. their way, on what occasion were these statements made?
A In a general service, Sunday, and also in small group
Page 70 of 267
 . meetings and even one-on-one, personally talking with them.
Q How often were these warnings or advise to correct made?
. of Faith and not to violate them. It is a well-settled principle in law
A Sometimes once a week we meet together.
Q Since when?
. form, being paramount. What it prohibits is not the absence of
A Since 1988.” (TSN, December 1, 1993, Perea Case, pp. 9-12).
. _______________
From the foregoing testimony of petitioner (now
respondent) Anthony Sayheeliam during the hearing in the
129
VOL. 366, SEPTEMBER 27, 2001 129
Long vs. Basa
Perea Case on 01 December 1993, it
remains undisputed that as early as 1988 private
respondents (now petitioners) and their cohorts knew that
their acts and conduct would be subject to disciplinary
action. In fact, private respondents (now petitioners) never
specifically denied or disputed the testimony of petitioner
(now respondent) Anthony Sayheeliam, whether on the
witness stand or in any pleading in the Perea Case or in the
other cases between the parties, that they have been
repeatedly admonished by the members of the Board of
Directors that the introduction of teachings and doctrines
inconsistent with the Principles of Faith of the Corporation
is punishable with their expulsion (Rollo, CA-G.R. SP No. 41551,
pp. 46-48.
“We find the stance of the petitioners (now respondents)
more persuasive as it is more in accord with Section 91 of
the Corporation Code which mandates that membership in a no-
stock corporation and, for that matter, in a religious corporation
‘shall be terminated in the manner and for the causes
enumerated in the articles of incorporation or by-laws.’ The
respondents (now petitioners) make no protestation that
the CHURCH’S by-law provision on expulsion has not been
complied with . . . .”48 (Emphasis ours)
Consequently, the expulsion was not tainted with any arbitrary
treatment from the members of the Board of Directors who, since
1988 up to August 30, 1993, or approximately five (5) years, have
patiently exhorted and warned the dissident members. This long
CONSTI 2 CASES Free Exercise of Religion
period of time is more than adequate an opportunity for the erring
members and their followers to contemplate upon their covenant
with the CHURCH on their duty to protect and promote its Principles
that what due process contemplates is freedom from arbitrariness;
what it requires is fairness and justice; substance, rather than the
previous notice but the absolute absence thereof. 49 A for-
48
Assailed Decision of the Court of Appeals, Rollo, pp. 78-80.
49
Maglasang vs. Ople, 63 SCRA 511 (1975); Mutuc vs. Court of
Appeals, 190 SCRA 43 (1990).
130
130 SUPREME COURT REPORTS ANNOTATED
Long vs. Basa
mal or trial type hearing is not at all times and in all instances
essential.50
Clearly, although the By-laws of the CHURCH do not require the
Board of Directors to give notice to the dissident petitioners of their
impending expulsion, more than sufficient notice was given to them
before they were expelled by the Board on August 30, 1993.
Petitioners, however, contend that the expelled members were
not actually notified and warned of their impending expulsion. In
support of this, they also cited the following testimony of Anthony
Sayheeliam:
“ATTY. PAULITE:
Q Did you go through the list one by one?
.
A Yes.
.
Q So do you remember how many were expelled because of
. conduct dishonorable, improper, injurious to the corporation?
A At the time we did not count the number. We just talked it
. one by one, discussed . . .
Q Okey, Did you notify them of the grounds for their expulsion?
.
A No.
Page 71 of 267
 . contempt for refusing to comply with the Special Order of this
Q You did not. Did you give them an opportunity to defend
. themselves?
A No.”51 (Emphasis ours)
. In their comment, respondents opposed the petition, claiming
Petitioners’ interpretation of the above-quoted testimony of
Anthony Sayheeliam was out of context. The question and
answer focused on what the Board of Directors did during its
meeting on August 30, 1993 wherein it evaluated each member’s
standing and conduct in the light of the grounds for disciplinary
action as provided in the CHURCH By-laws. This is plain from
the underscored portions of Sayheeliam’s testimony. Thus, what
Sayheeliam was saying is that on that very day of the
expulsion, the Board of Directors did not notify the expelled
members anymore. Obviously, such notice was not made by the
Board of Directors simply because the
_______________
50
Navarro III vs. Damasco, 246 SCRA 260, 265 (1995),
citing Stayfast Philippine Corp. vs. NLRC, 218 SCRA 596 (1993).
51
TSN, November 15, 1993, pp. 51-52.
131
VOL. 366, SEPTEMBER 27, 2001 131
Long vs. Basa
By-laws of the CHURCH does not require the same, as already
discussed earlier.
Incidentally, during the pendency of these cases in this Court,
petitioners filed an application for a TRO/writ of preliminary
injunction dated November 10, 1998, claiming therein that
respondents are denying them access to the premises of the
CHURCH for purposes of exercising their right of worship. Acting on
the application, this Court required the respondents to comment
thereon. In the meantime, it issued a Special Order on December
18, 1998 enjoining the respondents from enforcing the Court of
Appeals’ decision “insofar as petitioners’ rights and privileges as
members of the CHURCH are concerned.” Accordingly, petitioners
were allowed “entry into the CHURCH building of worship
and participate in its religious and social activities.”
On January 29, 1999, petitioners Lim Che Boon, Tan Hon Koc,
Joseph Lim and Liu Yek See filed a petition to cite respondents in
CONSTI 2 CASES Free Exercise of Religion
Court. This was docketed as G.R. No. 137135. Petitioners averred
therein that respondents denied them access to the worship halls
for their special conference involving the spiritual training of some
1,800 college students from Regions I to VI.
that their refusal to lend the worship halls was due to the fact that
the intended special conference is not a religious service/activity of
the CHURCH and the participants are not members of the
CHURCH.Thus, respondents assert that they did not violate the
Special Order of this Court.
We agree with the respondents. The Special Order allows
petitioners entry into the CHURCH building to “participate in
worship or other religious activities” “as members of the
CHURCH.” Clearly, the Special Order does not allow petitioners
unlimited or unrestrained access or use of the premises and
properties of the CHURCH. The intended special conference to be
conducted by petitioners is not a CHURCH activity and the
participants therein are not members of the CHURCH.
WHEREFORE, the present consolidated petitions are DENIED.
The assailed decision of the Court of Appeals dated May 29, 1998
132
Note.—A court has jurisdiction to render a particular judgment
only when the offense charged is within the class of offenses placed
by the law under its jurisdiction. (Pangilinan vs. Court of
Appeals,321 SCRA 51 [1999])
——o0o——
410 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
G.R. No. 124382. August 16, 1999.*
PASTOR DIONISIO V. AUSTRIA, petitioner, vs. HON.
NATIONAL LABOR RELATIONS COMMISSION (Fourth
Division), CEBU CITY, CENTRAL PHILIPPINE UNION
MISSION CORPORATION OF THE SEVENTH-DAY
ADVENTISTS, ELDER HECTOR V. GAYARES, PASTORS
REUBEN MORALDE, OSCAR L. ALOLOR, WILLIAM U.
DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT,
Page 72 of 267
 ISACHAR GARSULA, ELISEO DOBLE, PORFIRIO BALACY,
DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO,
MR. EUFRONIO IBESATE, MRS. TESSIE BALACY, MR.
ZOSIMO KARA-AN, and MR. ELEUTERIO LOBITANA,
respondents.
Labor Law; National Labor Relations
Commission; Jurisdiction; The principle of separation of church and
state finds no application in this case.–Private respondents contend
that by virtue of the doctrine of separation of church and state, the
Labor Arbiter and the NLRC have no jurisdiction to entertain the
complaint filed by petitioner. Since the matter at bar allegedly
involves the discipline of a religious minister, it is to be considered
a purely ecclesiastical affair to which the State has no right to
interfere. The contention of private respondents deserves scant
consideration. The principle of separation of church and state finds
no application in this case. The
_______________
*
FIRST DIVISION.
411
VOL. 312, AUGUST 16, 1999 411
Austria vs. National Labor Relations Commission
rationale of the principle of the separation of church and state
is summed up in the familiar saying, “Strong fences make good
neighbors.– The idea advocated by this principle is to delineate the
boundaries between the two institutions and thus avoid
encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to “render
therefore unto Ceasar the things that are Ceasar’s and unto God
the things that are God’s.– While the State is prohibited from
interfering in purely ecclesiastical affairs, the Church is likewise
barred from meddling in purely secular matters.
Same; Same; Same; Definition of “an Ecclesiastical Affair–; An
ecclesiastical affair involves the relationship between the church
and its members and relate to matters of faith, religious doctrines,
worship and governance of the congregation.–The case at bar does
not concern an ecclesiastical or purely religious affair as to bar the
State from taking cognizance of the same. An ecclesiastical affair is
“one that concerns doctrine, creed, or form of worship of the
church, or the adoption and enforcement within a religious
CONSTI 2 CASES Free Exercise of Religion
association of needful laws and regulations for the government of
the membership, and the power of excluding from such
associations those deemed unworthy of membership. Based on this
definition, an ecclesiastical affair involves the relationship between
the church and its members and relate to matters of faith, religious
doctrines, worship and governance of the congregation. To be
concrete, examples of this so-called ecclesiastical affairs to which
the State cannot meddle are proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and
other activities which attached religious significance. The case at
bar does not even remotely concern any of the abovecited
examples. While the matter at hand relates to the church and its
religious minister it does not ipso facto give the case a religious
significance. Simply stated, what is involved here is the relationship
of the church as an employer and the minister as an employee. It is
purely secular and has no relation whatsoever with the practice of
faith, worship or doctrines of the church.
Same; Same; Same;Same; The State, through the Labor
Arbiter and the National Labor Relations Commission, has the right
to take cognizance of the case and to determine whether the SDA,
as employer, rightfully exercised its management prerogative to
dismiss an employee.–As pointed out by the OSG in its
memorandum, the
412
4 SUPREME COURT REPORTS ANNOTATED
12
Austria vs. National Labor Relations Commission
grounds invoked for petitioner’s dismissal, namely:
misappropriation of denominational funds, willful breach of trust,
serious misconduct, gross and habitual neglect of duties and
commission of an offense against the person of his employer’s duly
authorized representative, are all based on Article 282 of the Labor
Code which enumerates the just causes for termination of
employment. By this alone, it is palpable that the reason for
petitioner’s dismissal from the service is not religious in nature.
Coupled with this is the act of the SDA in furnishing NLRC with a
copy of petitioner’s letter of termination. As aptly stated by the
OSG, this again is an eloquent admission by private respondents
that NLRC has jurisdiction over the case. Aside from these, SDA
admitted in a certification issued by its officer, Mr. Ibesate, that
petitioner has been its employee for twenty-eight (28) years. SDA
even registered petitioner with the Social Security System (SSS) as
Page 73 of 267
its employee. As a matter of fact, the worker’s records of petitioner
have been submitted by private respondents as part of their
exhibits. From all of these it is clear that when the SDA terminated
the services of petitioner, it was merely exercising its management
prerogative to fire an employee which it believes to be unfit for the
job. As such, the State, through the Labor Arbiter and the NLRC,
has the right to take cognizance of the case and to determine
whether the SDA, as employer, rightfully exercised its management
prerogative to dismiss an employee. This is in consonance with the
mandate of the Constitution to afford full protection to labor.
Same; Same; Same; Same; Under the Labor Code, the
provision which governs the dismissal of employees, is
comprehensive enough to include religious corporations.–Under the
Labor Code, the provision which governs the dismissal of
employees, is comprehensive enough to include religious
corporations, such as the SDA, in its coverage. Article 278 of the
Labor Code on post-employment states that “the provisions of this
Title shall apply to all establishments or undertakings, whether for
profit or not.– Obviously, the cited article does not make any
exception in favor of a religious corporation. This is made more
evident by the fact that the Rules Implementing the Labor Code,
particularly, Section 1, Rule 1, Book VI on the Termination of
Employment and Retirement, categorically includes religious
institutions in the coverage of the law.
Same; Dismissal; In termination cases, the settled rule is that
the burden of proving that the termination was for a valid or
authorized cause rests on the employer.–In termination cases, the
settled
413
VOL. 312, AUGUST 16, 1999 413
Austria vs. National Labor Relations Commission
rule is that the burden of proving that the termination was for
a valid or authorized cause rests on the employer. Thus, private
respondents must not merely rely on the weaknesses of petitioner’s
evidence but must stand on the merits of their own defense.
Same; Same; Requisites for a Valid Dismissal.–The issue being
the legality of petitioner’s dismissal, the same must be measured
against the requisites for a valid dismissal, namely: (a) the
employee must be afforded due process, i.e., he must be given an
opportunity to be heard and to defend himself; and, (b) the
dismissal must be for a valid cause as provided in Article 282 of the
Labor Code. Without the concurrence of this twin requirements, the
CONSTI 2 CASES Free Exercise of Religion
termination would, in the eyes of the law, be illegal. Before the
services of an employee can be validly terminated, Article 277 (b)
of the Labor Code and Section 2, Rule XXIII, Book V of the Rules
Implementing the Labor Code further require the employer to
furnish the employee with two (2) written notices, to wit: (a) a
written notice served on the employee specifying the ground or
grounds for termination, and giving to said employee reasonable
opportunity within which to explain his side; and, (b) a written
notice of termination served on the employee indicating that upon
due consideration of all the circumstances, grounds have been
established to justify his termination.
Same; Same; Same; Non-compliance therewith is fatal
because these requirements are conditions sine qua non before
dismissal may be validly effected.–The first notice, which may be
considered as the proper charge, serves to apprise the employee of
the particular acts or omissions for which his dismissal is sought.
The second notice on the other hand seeks to inform the employee
of the employer’s decision to dismiss him. This decision, however,
must come only after the employee is given a reasonable period
from receipt of the first notice within which to answer the charge
and ample opportunity to be heard and defend himself with the
assistance of a representative, if he so desires. This is in
consonance with the express provision of the law on the protection
to labor and the broader dictates of procedural due process. Non-
compliance therewith is fatal because these requirements are
conditions sine qua non before dismissal may be validly effected.
Same; Same; Breach of trust must be willful.–Settled is the rule
that under Article 282 (c) of the Labor Code, the breach of trust
must be willful. A breach is willful if it is done intentionally, know-
414
4 SUPREME COURT REPORTS ANNOTATED
14
Austria vs. National Labor Relations Commission
ingly and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly, heedlessly
or inadvertently. It must rest on substantial grounds and not on the
employer’s arbitrariness, whims, caprices or suspicion; otherwise,
the employee would eternally remain at the mercy of the employer.
It should be genuine and not simulated. This ground has never
been intended to afford an occasion for abuse, because of its
subjective nature.
Page 74 of 267
 Same; Same; Misconduct; For misconduct to be considered
serious it must be of such grave and aggravated character and not
merely trivial or unimportant.–Misconduct has been defined as
improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction
of duty, willful in character, and implies wrongful intent and not
mere error in judgment. For misconduct to be considered serious it
must be of such grave and aggravated character and not merely
trivial or unimportant. Based on this standard, we believe that the
act of petitioner in banging the attache case on the table, throwing
the telephone and scattering the books in the office of Pastor
Buhat, although improper, cannot be considered as grave enough
to be considered as serious misconduct.
Same; Same; Same; Where a penalty less punitive would
suffice, whatever missteps may have been committed by the
worker ought not be visited with a consequence so severe such as
dismissal from employment.–The cited actuation of petitioner does
not justify the ultimate penalty of dismissal from employment.
While the Constitution does not condone wrongdoing by the
employee, it nevertheless urges a moderation of the sanctions that
may be applied to him in light of the many disadvantages that
weigh heavily on him like an albatross on his neck. Where a penalty
less punitive would suffice, whatever missteps may have been
committed by the worker ought not be visited with a consequence
so severe such as dismissal from employment. For the foregoing
reasons, we believe that the minor infraction committed by
petitioner does not merit the ultimate penalty of dismissal.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
415
VOL. 312, AUGUST 16, 1999 415
Austria vs. National Labor Relations Commission
Raul T. Montesino for petitioner.
Gemeno M. Ymballa for private respondents.
KAPUNAN, J.:
Subject of the instant petition for certiorari under Rule 65 of the
Rules of Court is the Resolution 1 of public respondent National
Labor Relations Commission (the “NLRC–), rendered on 23 January
CONSTI 2 CASES Free Exercise of Religion
1996, in NLRC Case No. V-0120-93, entitled “Pastor Dionisio V.
Austria vs. Central Philippine Union Mission Corporation of Seventh
Day Adventists, et al.,– which dismissed the case for illegal
dismissal filed by the petitioner against private respondents for lack
of jurisdiction.
Private Respondent Central Philippine Union Mission Corporation
of the Seventh Day Adventists (hereinafter referred to as the
“SDA–) is a religious corporation duly organized and existing under
Philippine law and is represented in this case by the other private
respondents, officers of the SDA. Petitioner, on the other hand, was
a Pastor of the SDA until 31 October 1991, when his services were
terminated.
The records show that petitioner Pastor Dionisio V. Austria
worked with the SDA for twenty eight (28) years from 1963 to
1991.2 He began his work with the SDA on 15 July 1963 as a
literature evangelist, selling literature of the SDA over the island of
Negros. From then on, petitioner worked his way up the ladder and
got promoted several times. In January, 1968, petitioner became
the Assistant Publishing Director in the West Visayan Mission of the
SDA. In July, 1972, he was elevated to the position of Pastor in the
West Visayan Mission covering the island of Panay, and the
provinces of Romblon and Guimaras. Petitioner held the same
position up to 1988. Finally, in 1989, petitioner was promoted as
District Pastor of
_______________
1
Penned by Presiding Commissioner Irenea E. Ceniza and
concurred in by Commissioner Amorito V. Cañete. Commissioner
Bernabe S. Batuhan dissented. Records, Vol. 1, p. 901.
2
Exhibit “B– for petitioner, Id., at 467.
416
416 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
the Negros Mission of the SDA and was assigned at Sagay,
Balintawak and Toboso, Negros Occidental, with twelve (12)
churches under his jurisdiction. In January, 1991, petitioner was
transferred to Bacolod City. He held the position of district pastor
until his services were terminated on 31 October 1991.
On various occasions from August up to October, 1991,
petitioner received several communications 3 from Mr. Eufronio
Ibesate, the treasurer of the Negros Mission asking him to admit
Page 75 of 267
accountability and responsibility for the church tithes and offerings
collected by his wife, Mrs. Thelma Austria, in his district which
amounted to P15,078.10, and to remit the same to the Negros
Mission.
In his written explanation dated 11 October 1991,4 petitioner
reasoned out that he should not be made accountable for the
unremitted collections since it was private respondents Pastor
Gideon Buhat and Mr. Eufronio Ibesate who authorized his wife to
collect the tithes and offerings since he was very sick to do the
collecting at that time.
Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner
went to the office of Pastor Buhat, the president of the Negros
Mission. During said call, petitioner tried to persuade Pastor Buhat
to convene the Executive Committee for the purpose of settling the
dispute between him and the private respondent, Pastor David
Rodrigo. The dispute between Pastor Rodrigo and petitioner arose
from an incident in which petitioner assisted his friend, Danny
Diamada, to collect from Pastor Rodrigo the unpaid balance for the
repair of the latter’s motor vehicle which he failed to pay to
Diamada.5 Due to the assistance of petitioner in collecting Pastor
Rodrigo’s debt, the latter harbored ill-feelings against petitioner.
When news reached petitioner that Pastor Rodrigo was about to file
a complaint against him with the Negros Mission, he immedi-
________________
3
Exhibits “5,– “6,– “7,– “8,– and “9– for private respondents, Id.,
at 355-359.
4
Exhibit “M– for petitioner, Id., at 252.
5
Decision of the Labor Arbiter, Id., at 489, 531.
417
VOL. 312, AUGUST 16, 1999 417
Austria vs. National Labor Relations Commission
ately proceeded to the office of Pastor Buhat on the date
abovementioned and asked the latter to convene the Executive
Committee. Pastor Buhat denied the request of petitioner since
some committee members were out of town and there was no
quorum. Thereafter, the two exchanged heated arguments.
Petitioner then left the office of Pastor Buhat. While on his way out,
petitioner overheard Pastor Buhat saying, “Pastor daw inisog na ina
iya (Pastor you are talking tough).– 6 Irked by such remark,
petitioner returned to the office of Pastor Buhat, and tried to
CONSTI 2 CASES Free Exercise of Religion
overturn the latter’s table, though unsuccessfully, since it was
heavy. Thereafter, petitioner banged the attache case of Pastor
Buhat on the table, scattered the books in his office, and threw the
phone.7 Fortunately, private respondents Pastors Yonilo Leopoldo
and Claudio Montaño were around and they pacified both Pastor
Buhat and petitioner.
On 17 October 1991, petitioner received a letter 8 inviting him
and his wife to attend the Executive Committee meeting at the
Negros Mission Conference Room on 21 October 1991, at nine in
the morning. To be discussed in the meeting were the non-
remittance of church collection and the events that transpired on
16 October 1991. A fact-finding committee was created to
investigate petitioner. For two (2) days, from October 21 and 22,
the fact-finding committee conducted an investigation of petitioner.
Sensing that the result of the investigation might be one-sided,
petitioner immediately wrote Pastor Rueben Moralde, president of
the SDA and chairman of the fact-finding committee, requesting
that certain members of the fact-finding committee be excluded in
the investigation and resolution of the case. 9 Out of the six (6)
members requested to inhibit themselves from the investigation
and decision-making, only two (2) were actually excluded, namely:
Pastor Buhat and Pastor Rodrigo. Subsequently, on 29 Octo-
_______________
6
Id., at 532.
7
Ibid.
8
Exhibit “H– for petitioner, Id., at 247.
9
Exhibit “C– for petitioner, Id., at 239.
418
418 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
ber 1991, petitioner received a letter of dismissal 10 citing
misappropriation of denominational funds, willful breach of trust,
serious misconduct, gross and habitual neglect of duties, and
commission of an offense against the person of employer’s duly
authorized representative, as grounds for the termination of his
services.
Reacting against the adverse decision of the SDA, petitioner
filed a complaint11 on 14 November 1991, before the Labor Arbiter
for illegal dismissal against the SDA and its officers and prayed for
Page 76 of 267
reinstatement with backwages and benefits, moral and exemplary Petitioner filed a motion for reconsideration of the abovenamed
damages and other labor law benefits. decision. On 18 July 1995, the NLRC issued a Resolution reversing
On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered a its original decision. The dispositive portion of the resolution reads:
decision in favor of petitioner, the dispositive portion of which reads WHEREFORE, premises considered, Our decision dated August 26,
thus: 1994 is VACATED and the decision of the Labor Arbiter dated
WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL February 15, 1993 is REINSTATED.
PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY SO ORDERED.14
ADVENTISTS (CPUMCSDA) and its officers, respondents herein, are In view of the reversal of the original decision of the NLRC, the SDA
hereby ordered to immediately reinstate complainant Pastor filed a motion for reconsideration of the above resolution. Notable
Dionisio Austria to his former position as Pastor of Brgy. Taculing, in the motion for reconsideration filed by private respondents is
Progreso and Banago, Bacolod City, without loss of seniority and their invocation, for the first time on appeal, that the Labor Arbiter
other rights and backwages in the amount of ONE HUNDRED has no jurisdiction over the complaint filed by petitioner due to the
FIFTEEN THOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00) constitutional provision on the separation of church and state since
without deductions and qualifications. the case allegedly involved an ecclesiastical affair to which the
Respondent CPUMCSDA is further ordered to pay complainant State cannot interfere.
the following: The NLRC, without ruling on the merits of the case, reversed
A. 13th month pay - P21,060.00 itself once again, sustained the argument posed by private
respondents and, accordingly, dismissed the complaint of
B. Allowance - P 4,770.83 petitioner. The dispositive portion of the NLRC resolution
C. Service Incentive Leave Pay - P 3,461.85
D. Moral Damages - P50,000.00 _______________

E. Exemplary Damages - P25,000.00 13

Decision of the NLRC, Id., at 611, 618.
14
F. Attorney’s Fee - P22,012.27 Resolution of the NLRC, Id., at 789, 796.
SO ORDERED.12 420
420 SUPREME COURT REPORTS ANNOTATED
______________ Austria vs. National Labor Relations Commission
10 dated 23 January 1996, subject of the present petition, is as
Exhibit “E– for petitioner, Id., at 241. follows:
11
Records, Vol. 1, p. 1. WHEREFORE, in view of all the foregoing, the instant motion for
12
Decision of the Labor Arbiter, Id., at 489, 536. reconsideration is hereby granted. Accordingly, this case is hereby
419 DISMISSED for lack of jurisdiction.
VOL. 312, AUGUST 16, 1999 419 SO ORDERED.15
Austria vs. National Labor Relations Commission Hence, the recourse to this Court by petitioner.
The SDA, through its officers, appealed the decision of the Labor After the filing of the petition, the Court ordered the Office of the
Arbiter to the National Labor Relations Commission, Fourth Division, Solicitor General (the “OSG–) to file its comment on behalf of public
Cebu City. In a decision, dated 26 August 1994, the NLRC vacated respondent NLRC. Interestingly, the OSG filed a manifestation and
the findings of the Labor Arbiter. The decretal portion of the NLRC motion in lieu of comment 16 setting forth its stand that it cannot
decision states: sustain the resolution of the NLRC. In its manifestation, the OSG
WHEREFORE, the Decision appealed from is hereby VACATED and a submits that the termination of petitioner from his employment
new one ENTERED dismissing this case for want of merit. may be questioned before the NLRC as the same is secular in
SO ORDERED.13

CONSTI 2 CASES Free Exercise of Religion Page 77 of 267

nature, not ecclesiastical. After the submission of memoranda of all
the parties, the case was submitted for decision.
The issues to be resolved in this petition are:
1. 1)Whether or not the Labor Arbiter/NLRC has jurisdiction to
try and decide the complaint filed by petitioner against the
SDA;
2. 2)Whether or not the termination of the services of
petitioner is an ecclesiastical affair, and, as such, involves
the separation of church and state; and
3. 3)Whether or not such termination is valid.
The first two issues shall be resolved jointly, since they are related.
Private respondents contend that by virtue of the doctrine of
separation of church and state, the Labor Arbiter and the NLRC
have no jurisdiction to entertain the complaint filed by petitioner.
Since the matter at bar allegedly involves the dis-
_______________
15
Id., at 901, 903.
16
Rollo, p. 188.
421
VOL. 312, AUGUST 16, 1999 421
Austria vs. National Labor Relations Commission
cipline of a religious minister, it is to be considered a purely
ecclesiastical affair to which the State has no right to interfere.
The contention of private respondents deserves scant
consideration. The principle of separation of church and state finds
no application in this case.
The rationale of the principle of the separation of church and
state is summed up in the familiar saying, “Strong fences make
good neighbors.–17 The idea advocated by this principle is to
delineate the boundaries between the two institutions and thus
avoid encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive
jurisdictions.18 The demarcation line calls on the entities to “render
therefore unto Ceasar the things that are Ceasar’s and unto God
the things that are God’s.– 19 While the State is prohibited from
interfering in purely ecclesiastical affairs, the Church is likewise
barred from meddling in purely secular matters. 20
CONSTI 2 CASES Free Exercise of Religion
The case at bar does not concern an ecclesiastical or purely
religious affair as to bar the State from taking cognizance of the
same. An ecclesiastical affair is “one that concerns doctrine, creed,
or form of worship of the church, or the adoption and enforcement
within a religious association of needful laws and regulations for the
government of the membership, and the power of excluding from
such associations those deemed unworthy of membership. 21 Based
on this definition, an ecclesiastical affair involves the relationship
between the church and its members and relate to matters of faith,
religious doctrines, worship and governance of the congregation. To
be concrete, examples of this so-called ecclesiastical affairs to
which the State cannot meddle are proceedings for excommu-
_______________
17
ISAGANI A. CRUZ, PHILIPPINE POLITICAL LAW (1998), p. 68.
18
Ibid.
19
Id.
20
Id.
21
BLACK’S LAW DICTIONARY, Fifth Edition (1979), p. 460.
422
422 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
nication, ordinations of religious ministers, administration of
sacraments and other activities which attached religious
significance. The case at bar does not even remotely concern any
of the abovecited examples. While the matter at hand relates to the
church and its religious minister it does not ipso facto give the case
a religious significance. Simply stated, what is involved here is the
relationship of the church as an employer and the minister as an
employee. It is purely secular and has no relation whatsoever with
the practice of faith, worship or doctrines of the church. In this
case, petitioner was not excommunicated or expelled from the
membership of the SDA but was terminated from employment.
Indeed, the matter of terminating an employee, which is purely
secular in nature, is different from the ecclesiastical act of expelling
a member from the religious congregation.
As pointed out by the OSG in its memorandum, the grounds
invoked for petitioner’s dismissal, namely: misappropriation of
denominational funds, willful breach of trust, serious misconduct,
gross and habitual neglect of duties and commission of an offense
against the person of his employer’s duly authorized
Page 78 of 267
representative, are all based on Article 282 of the Labor Code which
enumerates the just causes for termination of employment. 22 By
this alone, it is palpable that the reason for petitioner’s dismissal
from the service is not religious in nature. Coupled with this is the
act of the SDA in furnishing NLRC with a copy of petitioner’s letter
of termination. As aptly stated by the OSG, this again is an
eloquent admission by private respondents that NLRC has
jurisdiction over the case. Aside from these, SDA admitted in a
certification23 issued by its officer, Mr. Ibesate, that petitioner has
been its employee for twenty-eight (28) years. SDA even registered
petitioner with the Social Security System (SSS) as its employee. As
a matter of fact, the worker’s records of petitioner have been
submitted by private respondents as part of their exhibits. From all
of these it is clear that when the SDA
_______________
22
Rollo, p. 233.
23
Exhibit “B– for petitioner, Records, Vol. 1, p. 238.
423
VOL. 312, AUGUST 16, 1999 423
Austria vs. National Labor Relations Commission
terminated the services of petitioner, it was merely exercising its
management prerogative to fire an employee which it believes to
be unfit for the job. As such, the State, through the Labor Arbiter
and the NLRC, has the right to take cognizance of the case and to
determine whether the SDA, as employer, rightfully exercised its
management prerogative to dismiss an employee. This is in
consonance with the mandate of the Constitution to afford full
protection to labor.
Under the Labor Code, the provision which governs the dismissal
of employees, is comprehensive enough to include religious
corporations, such as the SDA, in its coverage. Article 278 of the
Labor Code on post-employment states that “the provisions of this
Title shall apply to all establishments or undertakings, whether for
profit or not.– Obviously, the cited article does not make any
exception in favor of a religious corporation. This is made more
evident by the fact that the Rules Implementing the Labor Code,
particularly, Section 1, Rule 1, Book VI on the Termination of
Employment and Retirement, categorically includes religious
institutions in the coverage of the law, to wit:
CONSTI 2 CASES Free Exercise of Religion
Section 1. Coverage.–This Rule shall apply to all establishments and
undertakings, whether operated for profit or not, including
educational, medical, charitable and religious institutions and
organizations, in cases of regular employment with the exception of
the Government and its political subdivisions including
government-owned or controlled corporations. 24
With this clear mandate, the SDA cannot hide behind the mantle of
protection of the doctrine of separation of church and state to avoid
its responsibilities as an employer under the Labor Code.
Finally, as correctly pointed out by petitioner, private
respondents are estopped from raising the issue of lack of
jurisdiction for the first time on appeal. It is already too late in the
day for private respondents to question the jurisdiction of the
________________
24
Emphasis supplied.
424
424 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
NLRC and the Labor Arbiter since the SDA had fully participated in
the trials and hearings of the case from start to finish. The Court
has already ruled that the active participation of a party against
whom the action was brought, coupled with his failure to object to
the jurisdiction of the court or quasijudicial body where the action is
pending, is tantamount to an invocation of that jurisdiction and a
willingness to abide by the resolution of the case and will bar said
party from later on impugning the court or body’s
jurisdiction.25Thus, the active participation of private respondents in
the proceedings before the Labor Arbiter and the NLRC mooted the
question on jurisdiction.
The jurisdictional question now settled, we shall now proceed to
determine whether the dismissal of petitioner was valid.
At the outset, we note that as a general rule, findings of fact of
administrative bodies like the NLRC are binding upon this Court. A
review of such findings is justified, however, in instances when the
findings of the NLRC differ from those of the labor arbiter, as in this
case.26 When the findings of NLRC do not agree with those of the
Labor Arbiter, this Court must of necessity review the records to
determine which findings should be preferred as more comformable
to the evidentiary facts.27
Page 79 of 267
 We turn now to the crux of the matter. In termination cases, the
settled rule is that the burden of proving that the termination was
for a valid or authorized cause rests on the employer. 28 Thus,
private respondents must not merely rely
________________
25
Maneja vs. NLRC and Manila Midtown Hotel, G.R. No. 124013,
June 5, 1998, 290 SCRA 603, citing Marquez vs. Secretary of
Labor, 171 SCRA 337 (1989).
26
Lim, et al. vs. NLRC, et al., G.R. No. 124630, February 19,
1999, 303 SCRA 432.
27
Arboleda vs. NLRC and Manila Electric Company, G.R. No.
119509, February 11, 1999, 303 SCRA 38, citing Tanala vs.
NLRC, 252 SCRA 314 (1996).
28
Id., citing Gesulgon vs. NLRC, 219 SCRA 561 (1993).
425
VOL. 312, AUGUST 16, 1999 425
Austria vs. National Labor Relations Commission
on the weaknesses of petitioner’s evidence but must stand on the
merits of their own defense. The issue being the legality of
petitioner’s dismissal, the same must be measured against the
requisites for a valid dismissal, namely: (a) the employee must be
afforded due process, i.e., he must be given an opportunity to be
heard and to defend himself; and, (b) the dismissal must be for a
valid cause as provided in Article 282 of the Labor Code. 29 Without
the concurrence of this twin requirements, the termination would,
in the eyes of the law, be illegal.30
Before the services of an employee can be validly terminated,
Article 277 (b) of the Labor Code and Section 2, Rule XXIII, Book V
of the Rules Implementing the Labor Code further require the
employer to furnish the employee with two (2) written notices, to
wit: (a) a written notice served on the employee specifying the
ground or grounds for termination, and giving to said employee
reasonable opportunity within which to explain his side; and, (b) a
written notice of termination served on the employee indicating
that upon due consideration of all the circumstances, grounds have
been established to justify his termination.
The first notice, which may be considered as the proper charge,
serves to apprise the employee of the particular acts or omissions
for which his dismissal is sought. 31 The second notice on the other
hand seeks to inform the employee of the employer’s decision to
CONSTI 2 CASES Free Exercise of Religion
dismiss him.32 This decision, however, must come only after the
employee is given a reasonable period from receipt of the first
notice within which to answer the charge and ample opportunity to
be heard and defend himself with the assistance of a
representative, if he so desires.33 This
_______________
29
Id., citing Pizza Hut/Progressive Dev’t. Corp. vs. NLRC, 252
SCRA 531 (1996).
30
Salaw vs. NLRC, 202 SCRA 7, 12 (1991) citing San Miguel
Corporation vs. NLRC, 173 SCRA 314 (1989).
31
Tiu vs. NLRC, 215 SCRA 540, 551 (1992).
32
Ibid.
33
Id.
426
426 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
is in consonance with the express provision of the law on the
protection to labor and the broader dictates of procedural due
process.34 Non-compliance therewith is fatal because these
requirements are conditions sine qua non before dismissal may be
validly effected.35
Private respondent failed to substantially comply with the above
requirements. With regard to the first notice, the letter, 36 dated 17
October 1991, which notified petitioner and his wife to attend the
meeting on 21 October 1991, cannot be construed as the written
charge required by law. A perusal of the said letter reveals that it
never categorically stated the particular acts or omissions on which
petitioner’s impending termination was grounded. In fact, the letter
never even mentioned that petitioner would be subject to
investigation. The letter merely mentioned that petitioner and his
wife were invited to a meeting wherein what would be discussed
were the alleged unremitted church tithes and the events that
transpired on 16 October 1991. Thus, petitioner was surprised to
find out that the alleged meeting turned out to be an investigation.
From the tenor of the letter, it cannot be presumed that petitioner
was actually on the verge of dismissal. The alleged grounds for the
dismissal of petitioner from the service were only revealed to him
when the actual letter of dismissal was finally issued. For this
reason, it cannot be said that petitioner was given enough
opportunity to properly prepare for his defense. While admittedly,
Page 80 of 267
private respondents complied with the second requirement, the
notice of termination, this does not cure the initial defect of lack of
the proper written charge required by law.
In the letter of termination, 37 dated 29 October 1991, private
respondents enumerated the following as grounds for the dismissal
of petitioner, namely: misappropriation of denomi-
_______________
34
Id., at 552.
35
Id., citing Metro Port Service, Inc. v. NLRC, 171 SCRA
190 (1989).
36
Exhibit “H– for petitioner, Records, Vol. 1, p. 247.
37
Exhibit “E– for petitioner, Id., at 241.
427
VOL. 312, AUGUST 16, 1999 427
Austria vs. National Labor Relations Commission
national funds, willful breach of trust, serious misconduct, gross
and habitual neglect of duties, and commission of an offense
against the person of employer’s duly authorized representative.
Breach of trust and misappropriation of denominational funds refer
to the alleged failure of petitioner to remit to the treasurer of the
Negros Mission tithes, collections and offerings amounting to
P15,078.10 which were collected by his wife, Mrs. Thelma Austria,
in the churches under his jurisdiction. On the other hand, serious
misconduct and commission of an offense against the person of the
employer’s duly authorized representative pertain to the 16
October 1991 incident wherein petitioner allegedly committed an
act of violence in the office of Pastor Gideon Buhat. The final
ground invoked by private respondents is gross and habitual
neglect of duties allegedly committed by petitioner.
We cannot sustain the validity of dismissal based on the ground
of breach of trust. Private respondents allege that they have lost
their confidence in petitioner for his failure, despite demands, to
remit the tithes and offerings amounting to P15,078.10, which were
collected in his district. A careful study of the voluminous records of
the case reveals that there is simply no basis for the alleged loss of
confidence and breach of trust. Settled is the rule that under Article
282 (c) of the Labor Code, the breach of trust must be willful. A
breach is willful if it is done intentionally, knowingly and purposely,
without justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently. 38 It must rest
CONSTI 2 CASES Free Exercise of Religion
on substantial grounds and not on the employer’s arbitrariness,
whims, caprices or suspicion; otherwise, the employee would
eternally remain at the mercy of the employer. 39 It should be
genuine and not simulated. 40 This ground has never been intended
to afford an occasion for abuse, because of its subjective nature.
The records show that there
________________
38
Atlas Consolidated Mining & Dev’t. Corp. vs. NLRC and Isabelo
O. Villacencio, G.R. No. 122033, May 21, 1998, 290 SCRA 479.
39
Ibid.
40
Id.
428
428 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
were only six (6) instances when petitioner personally collected and
received from the church treasurers the tithes, collections, and
donations for the church.41 The stenographic notes on the
testimony of Naomi Geniebla, the Negros Mission Church Auditor
and a witness for private respondents, show that Pastor Austria was
able to remit all his collections to the treasurer of the Negros
Mission.42
Though private respondents were able to establish that
petitioner collected and received tithes and donations several
times, they were not able to establish that petitioner failed to remit
the same to the Negros Mission, and that he pocketed the amount
and used it for his personal purpose. In fact, as admitted by their
own witness, Naomi Geniebla, petitioner remitted the amounts
which he collected to the Negros Mission for which corresponding
receipts were issued to him. Thus, the allegations of private
respondents that petitioner breached their trust have no leg to
stand on.
In a vain attempt to support their claim of breach of trust,
private respondents try to pin on petitioner the alleged non-
remittance of the tithes collected by his wife. This argument
deserves little consideration. First of all, as proven by convincing
and substantial evidence consisting of the testimonies of the
witnesses for private respondents who are church treasurers, it was
Mrs. Thelma Austria who actually collected the tithes and donations
from them, and, who failed to remit the same to the treasurer of
the Negros Mission. The testimony of these church treasurers were
Page 81 of 267
corroborated and confirmed by Ms. Geniebla and Mr. Ibesate,
officers of the SDA. Hence, in the absence of conspiracy and
collusion, which private respondents failed to demonstrate,
between petitioner and his wife, petitioner cannot be made
accountable for the alleged infraction committed by his wife. After
all, they still have separate and distinct personalities. For this
reason, the
_______________
41
Exhibits “47,– “49,– “50,– “51,– “52,– and “53– for private
respondents, Records, Vol. 1, pp. 398, 400-403.
42
TSN, June 22, 1992, pp. 198-199; August 18, 1992, pp. 189-
191, 198-201.
429
VOL. 312, AUGUST 16, 1999 429
Austria vs. National Labor Relations Commission
Labor Arbiter found it difficult to see the basis for the alleged loss of
confidence and breach of trust. The Court does not find any cogent
reason, therefore, to digress from the findings of the Labor Arbiter
which is fully supported by the evidence on record.
With respect to the grounds of serious misconduct and
commission of an offense against the person of the employer’s duly
authorized representative, we find the same unmeritorious and, as
such, do not warrant petitioner’s dismissal from the service.
Misconduct has been defined as improper or wrong conduct. It is
the transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies
wrongful intent and not mere error in judgment. 43 For misconduct to
be considered serious it must be of such grave and aggravated
character and not merely trivial or unimportant. 44 Based on this
standard, we believe that the act of petitioner in banging the
attache case on the table, throwing the telephone and scattering
the books in the office of Pastor Buhat, although improper, cannot
be considered as grave enough to be considered as serious
misconduct. After all, as correctly observed by the Labor Arbiter,
though petitioner committed damage to property, he did not
physically assault Pastor Buhat or any other pastor present during
the incident of 16 October 1991. In fact, the alleged offense
committed upon the person of the employer’s representatives was
never really established or proven by private respondents. Hence,
there is no basis for the allegation that petitioner’s act constituted
CONSTI 2 CASES Free Exercise of Religion
serious misconduct or that the same was an offense against the
person of the employer’s duly authorized representative. As such,
the cited actuation of petitioner does not justify the ultimate
penalty of dismissal from employment. While the Constitution does
not condone wrongdoing by the employee, it nevertheless urges a
modera-
_______________
43
Alma Cosep, et al. vs. NLRC and Premiere Development
Bank, G.R. No. 124966, June 16, 1998, 290 SCRA 704.
44
Ibid.
430
430 SUPREME COURT REPORTS ANNOTATED
Austria vs. National Labor Relations Commission
tion of the sanctions that may be applied to him in light of the
many disadvantages that weigh heavily on him like an albatross on
his neck.45 Where a penalty less punitive would suffice, whatever
missteps may have been committed by the worker ought not be
visited with a consequence so severe such as dismissal from
employment.46 For the foregoing reasons, we believe that the minor
infraction committed by petitioner does not merit the ultimate
penalty of dismissal.
The final ground alleged by private respondents in terminating
petitioner, gross and habitual neglect of duties, does not require an
exhaustive discussion. Suffice it to say that all private respondents
had were allegations but not proof. Aside from merely citing the
said ground, private respondents failed to prove culpability on the
part of petitioner. In fact, the evidence on record shows otherwise.
Petitioner’s rise from the ranks disclose that he was actually a hard-
worker. Private respondents’ evidence,47 which consisted of
petitioner’s Worker’s Reports, revealed how petitioner travelled to
different churches to attend to the faithful under his care. Indeed,
he labored hard for the SDA, but, in return, he was rewarded with a
dismissal from the service for a non-existent cause. In view of the
foregoing, we sustain the finding of the Labor Arbiter that petitioner
was terminated from service without just or lawful cause. Having
been illegally dismissed, petitioner is entitled to reinstatement to
his former position without loss of seniority right 48 and the payment
of full back-
_______________
Page 82 of 267
 45
Gandara Mill Supply and Milagros Sy vs. NLRC and Silvestre
Germano, G.R. No. 126703, December 29, 1998, 300 SCRA
702 citing Diosdado de Vera vs. NLRC, 191 SCRA 633 (1990).
46
PLDT vs. NLRC and Enrique Gabriel, G.R. No. 106947, February
11, 1999, 303 SCRA 9, citing Madlos vs. NLRC, 254 SCRA
248 (1996).
47
Exhibits “44–-“46– for private respondents, Records, Vol. 1, pp.
395-397.
48
Salaw vs. NLRC,supra note 30 citing Santos vs. NLRC, 154
SCRA 166 (1987).
431
VOL. 312, AUGUST 16, 1999 431
Austria vs. National Labor Relations Commission
wages without any deduction corresponding to the period from his
illegal dismissal up to the actual reinstatement. 49
WHEREFORE, the petition for certiorari is GRANTED. The
challenged Resolution of public respondent National Labor Relations
Commission, rendered on 23 January 1996, is NULLIFIED and SET
ASIDE. The Decision of the Labor Arbiter, dated 15 February 1993,
is REINSTATED and hereby AFFIRMED.SO ORDERED.
Davide, Jr. (C.J.), Puno, Pardo and Ynares-Santiago,
JJ.,concur.
Petition granted; Challenged resolution nullified and set aside.
Note.–The burden of proof to establish the validity of the
dismissal of an employee lies on the employer. (Gonpu Services
Corporation vs. National Labor Relations Commission, 266 SCRA
657 [1997])
––o0o––
_______________
49
Joaquin Servidad vs. NLRC, 265 SCRA 61, 71 (1996).
VOL. 236, SEPTEMBER 1, 1994 197
Centeno vs. Villalon-Pornillos
G.R. No. 113092. September 1, 1994.*
MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALON-
PORNILLOS, Presiding Judge of the Regional Trial Court
CONSTI 2 CASES Free Exercise of Religion
of Malolos, Bulacan, Branch 10, and THE PEOPLE OF THE
PHILIPPINES, respondents.
Constitutional Law; Statutory Construction; Solicitation Permit
Law; It is an elementary rule of statutory construction that the
express mention of one person, thing, act, or consequence
excludes all others.—Indeed, it is an elementary rule of statutory
construction that the express mention of one person, thing, act, or
consequence excludes all others. This rule is expressed in the
familiar maxim “expressio unius est exclusio alterius.” Where a
statute, by its terms, is expressly limited to certain matters, it may
not, by interpretation or construction, be extended to others. The
rule proceeds from the premise that the legislature would not have
made specified enumerations in a statute had the intention been
not to restrict its meaning and to confine its terms to those
expressly mentioned.
Same; Same; Same; Framers of Presidential Decree No. 1564
never intended to include solicitations for religious purposes within
its
_________________
*
SECOND DIVISION.
198
1 SUPREME COURT REPORTS ANNOTATED
98
Centeno vs. Villalon-Pornillos
coverage.—That these legislative enactments specifically
spelled out “charitable” and “religious” in an enumeration, whereas
Presidential Decree No. 1564 merely stated “charitable or public
welfare purposes,” only goes to show that the framers of the law in
question never intended to include solicitations for religious
purposes within its coverage. Otherwise, there is no reason why it
would not have so stated expressly.
Same; Same; Same; The term “charitable” should be strictly
construed so as to exclude solicitation for “religious” purposes.—On
the other hand, to subsume the “religious” purpose of the
solicitation within the concept of “charitable” purpose which under
Presidential Decree No. 1564 requires a prior permit from the
Department of Social Services and Development, under pain of
penal liability in the absence thereof, would be prejudicial to
petitioner. Accordingly, the term “charitable” should be strictly
construed so as to exclude solicitations for “religious” purposes.
Page 83 of 267
Thereby, we adhere to the fundamental doctrine underlying
virtually all penal legislations that such interpretation should be
adopted as would favor the accused.
Same; Same; Same; It is a well-entrenched rule that penal
laws are to be construed strictly against the State and liberally in
favor of the accused.—For, it is a well-entrenched rule that penal
laws are to be construed strictly against the State and liberally in
favor of the accused. They are not to be extended or enlarged by
implications, intendments, analogies or equitable considerations.
They are not to be strained by construction to spell out a new
offense, enlarge the field of crime or multiply felonies.
Same; Same; Same; “Charitable” and “religious,” which are
integral parts of an enumeration using the disjunctive “OR” should
be given different, distinct, and disparate meanings.—Furthermore,
in the provisions of the Constitution and the statutes mentioned
above, the enu-merations therein given which include the words
“charitable” and “reli-gious” make use of the disjunctive “or.” In its
elementary sense, “or” as used in a statute is a disjunctive article
indicating an alternative. It often connects a series of words or
propositions indicating a choice of either. When “or” is used, the
various members of the enumeration are to be taken separately.
Accordingly, “charitable” and “religious,” which are integral parts of
an enumeration using the disjunctive “or” should be given different,
distinct, and disparate meanings. There is no compelling
consideration why the same treatment or usage of these words
cannot be made applicable to the questioned provisions of
Presidential Decree No. 1564.
199
VOL. 236, SEPTEMBER 1, 1994 19
9
Centeno vs. Villalon-Pornillos
Same; Freedom of Religion; The constitutional inhibition of
legislation on the subject of religion has a double aspect.—The
constitutional inhibition of legislation on the subject of religion has
a double aspect. On the one hand, it forestalls compulsion by law of
the acceptance of any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose
cannot be restricted by law. On the other hand, it safeguards the
free exercise of the chosen form of religion.
Same; Same; Even the exercise of religion may be regulated,
at some slight inconvenience, in order that the State may protect
CONSTI 2 CASES Free Exercise of Religion
its citizens from injury.—Whence, even the exercise of religion may
be regulated, at some slight inconvenience, in order that the State
may protect its citizens from injury. Without doubt, a State may
protect its citizens from fraudulent solicitation by requiring a
stranger in the community, before permitting him publicly to solicit
funds for any purpose, to establish his identity and his authority to
act for the cause which he purports to represent. The State is
likewise free to regulate the time and manner of solicitation
generally, in the interest of public safety, peace, comfort, or
convenience.
Same; Same; Same; It does not follow, therefore, from the
constitutional guaranties of the free exercise of religion that
everything which may be so called can be tolerated.—It does not
follow, therefore, from the constitutional guaranties of the free
exercise of religion that everything which may be so called can be
tolerated. It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one interfering
with the “free exercise” of religion merely because it also
incidentally has a detrimental effect on the adherents of one or
more religion.
Same; Same; Same; Same; The State has authority under the
exercise of its police power to determine whether or not there shall
be restrictions on soliciting by unscrupulous persons or for
unworthy causes or for fraudulent purposes.—Even with numerous
regulative laws in existence, it is surprising how many operations
are carried on by persons and associations who, secreting their
activities under the guise of benevolent purposes, succeed in
cheating and defrauding a generous public. It is in fact amazing
how profitable the fraudulent schemes and practices are to people
who manipulate them. The State has authority under the exercise
of its police power to determine whether or not there shall be
restrictions on soliciting by unscrupulous persons or for unworthy
causes or for fraudulent purposes.
200
2 SUPREME COURT REPORTS ANNOTATED
00
Centeno vs. Villalon-Pornillos
Same; Same; Same; Same; Solicitation for religious purposes
may be subject to proper regulation by the State in the exercise of
police power.—To conclude, solicitation for religious purposes may
be subject to proper regulation by the State in the exercise of police
power. However, in the case at bar, considering that solicitations
Page 84 of 267
intended for a religious purpose are not within the coverage of
Presidential Decree No. 1564, as earlier demonstrated, petitioner
cannot be held criminally liable therefor.
MENDOZA, J., Concurring Opinion:
Constitutional Law; Statutory Construction; Solicitation of
contributions for the construction of a church is not solicitation for
“charitable or public welfare purpose” but for a religious purpose,
and a religious purpose is not necessarily a charitable or public
welfare purpose.—Solicitation of contributions for the construction
of a church is not solicitation for “charitable or public welfare
purpose” but for a religious purpose, and a religious purpose is not
necessarily a charitable or public welfare purpose. A fund campaign
for the construction or repair of a church is not like fund drives for
needy families or victims of calamity or for the construction of a
civic center and the like.
Same; Same; To require a government permit before
solicitation for religious purpose may be allowed is to lay a prior
restraint on the free exercise of religion.—To require a government
permit before solicitation for religious purpose may be allowed is to
lay a prior restraint on the free exercise of religion. Such restraint, if
allowed, may well justify requiring a permit before a church can
make Sunday collections or enforce tithing.
PETITION for review of a decision of the Regional Trial Court of
Malolos, Bulacan, Br. 10.
The facts are stated in the opinion of the Court.
Santiago V. Marcos, Jr. for petitioner.
REGALADO, J.:
It is indeed unfortunate that a group of elderly men, who were
moved by their desire to devote their remaining years to the
service of their Creator by forming their own civic organization for
that purpose, should find themselves enmeshed in a criminal case
for making a solicitation from a community member allegedly
201
VOL. 236, SEPTEMBER 1, 1994 201
Centeno vs. Villalon-Pornillos
CONSTI 2 CASES Free Exercise of Religion
without the required permit from the Department of Social Welfare
and Development.
The records of this case reveal that sometime in the last quarter
of 1985, the officers of a civic organization known as the Samahang
Katandaan ng Nayon ng Tikay launched a fund drive for the
purpose of renovating the chapel of Barrio Tikay, Malolos, Bulacan.
Petitioner Martin Centeno, the chairman of the group, together with
Vicente Yco, approached Judge Adoracion G. Angeles, a resident of
Tikay, and solicited from her a contribution of P1,500.00. It is
admitted that the solicitation was made without a permit from the
Department of Social Welfare and Development.
As a consequence, based on the complaint of Judge Angeles, an
information1 was filed against petitioner Martin Centeno, together
with Religio Evaristo and Vicente Yco, for violation of Presidential
Decree No. 1564, or the Solicitation Permit Law, before the
Municipal Trial Court of Malolos, Bulacan, Branch 2, and docketed as
Criminal Case No. 2602. Petitioner filed a motion to quash the
information2 on the ground that the facts alleged therein do not
constitute an offense, claiming that Presidential Decree No. 1564
only covers solicitations made for charitable or public welfare
purposes, but not those made for a religious purpose such as the
construction of a chapel. This was denied3 by the trial court, and
petitioner’s motion for reconsideration having met the same fate,
trial on the merits ensued.
On December 29, 1992, the said trial court rendered
judgment4finding accused Vicente Yco and petitioner Centeno
guilty beyond reasonable doubt and sentencing them to each pay a
fine of P200.00. Nevertheless, the trial court recommended that the
accused be pardoned on the basis of its finding that they acted in
good faith, plus the fact that it believed that the latter should not
have been criminally liable were it not for the existence of
Presidential Decree No. 1564 which the court opined it had the duty
to apply in the instant case.
Both accused Centeno and Yco appealed to the Regional Trial
Court of Malolos, Bulacan, Branch 10. However, accused Yco
__________________
1
Annex A, Petition; Rollo, 25.
2
Annex B, id., ibid., 20.
3
Annex D, id., ibid., 34.
4
Annex G, id., ibid., 40.
202
Page 85 of 267

202 SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
subsequently withdrew his appeal, hence the case proceeded only
with respect to petitioner Centeno. On May 21, 1993, respondent
Judge Villalon-Pornillos affirmed the decision of the lower court but
modified the penalty, allegedly because of the perversity of the act
committed which caused damage and prejudice to the
complainant, by sentencing petitioner Centeno to suffer an
increased penalty of imprisonment of 6 months and a fine of
P1,000.00, without subsidiary imprisonment in case of
insolvency.5 The motion for reconsideration of the decision was
denied by the court.6
Thus it is that a fine of P200.00 imposed as a penalty by the
lowest court in the judicial hierarchy eventually reached this
highest tribunal, challenged on the sole issue of whether
solicitations for religious purposes are within the ambit of
Presidential Decree No. 1564. Quantitatively, the financial sanction
is a nominal imposition but, on a question of principle, it is not a
trifling matter. This Court is gratified that it can now grant this case
the benefit of a final adjudication.
Petitioner questions the applicability of Presidential Decree No.
1564 to solicitations for contributions intended for religious
purposes with the submissions that (1) the term “religious purpose”
is not expressly included in the provisions of the statute, hence
what the law does not include, it excludes; (2) penal laws are to be
construed strictly against the State and liberally in favor of the
accused; and (3) to subject to State regulation solicitations made
for a religious purpose would constitute an abridgment of the right
to freedom of religion guaranteed under the Constitution.
Presidential Decree No. 1564 (which amended Act No. 4075,
otherwise known as the Solicitation Permit Law), provides as
follows:
“Sec. 2. Any person, corporation, organization, or association
desiring to solicit or receive contributions for charitable or public
welfare purposes shall first secure a permit from the Regional
Offices of the Department of Social Services and Development as
provided in the Integrated Reorganization Plan. Upon the filing of a
written application for a permit in the form prescribed by the
Regional Offices of the
_______________
CONSTI 2 CASES Free Exercise of Religion
5
Annex H, id., ibid., 44.
6
Annex J, id., ibid., 64.
203
VOL. 236, SEPTEMBER 1, 1994 203
Centeno vs. Villalon-Pornillos
Department of Social Services and Development, the Regional
Director or his duly authorized representative may, in his discretion,
issue a permanent or temporary permit or disapprove the
application. In the interest of the public, he may in his discretion
renew or revoke any permit issued under Act 4075.”
The main issue to be resolved here is whether the phrase
“charitable purposes” should be construed in its broadest sense so
as to include a religious purpose. We hold in the negative.
I. Indeed, it is an elementary rule of statutory construction that
the express mention of one person, thing, act, or consequence
excludes all others. This rule is expressed in the familiar maxim
“expressio unius est exclusio alterius.” Where a statute, by its
terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to others. The rule
proceeds from the premise that the legislature would not have
made specified enumerations in a statute had the intention been
not to restrict its meaning and to confine its terms to those
expressly mentioned.7
It will be observed that the 1987 Constitution, as well as several
other statutes, treat the words “charitable” and “religious”
separately and independently of each other. Thus, the word
“charitable” is only one of three descriptive words used in Section
28(3), Article VI of the Constitution which provides that “charitable
institutions, churches and parsonages x x x, and all lands,
buildings, and improvements, actually, directly, and exclusively
used for religious, charitable, or educational purposes shall be
exempt from taxation.” There are certain provisions in statutes
wherein these two terms are likewise dissociated and individually
mentioned, as for instance, Sections 26 (e) (corporations exempt
from income tax) and 28 (8) (E) (exclusions from gross income) of
the National Internal Revenue Code; Section 88 (purposes for the
organization of non-stock corporations) of the Corporation Code;
and Section 234 (b) (exemptions from real property tax) of the
Local Government Code.
That these legislative enactments specifically spelled out
“charitable” and “religious” in an enumeration, whereas Presi-
Page 86 of 267
__________________
7
Commissioner of Customs vs. Court of Tax Appeals, et al., G.R.
Nos. 48886-88, July 21, 1993, 224 SCRA 665.
204
204 SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
dential Decree No. 1564 merely stated “charitable or public welfare
purposes,” only goes to show that the framers of the law in
question never intended to include solicitations for religious
purposes within its coverage. Otherwise, there is no reason why it
would not have so stated expressly.
All contributions designed to promote the work of the church are
“charitable” in nature, since religious activities depend for their
support on voluntary contributions. 8 However, “religious purpose” is
not interchangeable with the expression “charitable purpose.”
While it is true that there is no religious purpose which is not also a
charitable purpose, yet the converse is not equally true, for there
may be a “charitable” purpose which is not “religious” in the legal
sense of the term.9 Although the term “charitable” may include
matters which are “religious,” it is a broader term and includes
matters which are not “religious,” and, accordingly, there is a
distinction between “charitable purpose” and “religious purpose,”
except where the two terms are obviously used synonymously, or
where the distinction has been done away with by statute. 10 The
word “charitable,” therefore, like most other words, is capable of
different significations. For example, in the law, exempting
charitable uses from taxation, it has a very wide meaning, but
under Presidential Decree No. 1564 which is a penal law, it cannot
be given such a broad application since it would be prejudicial to
petitioners.
To illustrate, the rule is that tax exemptions are generally
construed strictly against the taxpayer. However, there are cases
wherein claims for exemption from tax for “religious purposes”
have been liberally construed as covered in the law granting tax
exemptions for “charitable purposes.” Thus, the term “charitable
purposes,” within the meaning of a statute providing that the
succession of any property passing to or for the use of any
institution for purposes only of public charity shall not be subject to
succession tax, is deemed to include religious purposes. 11 A gift for
“religious purposes” was considered as a bequest for “charitable
CONSTI 2 CASES Free Exercise of Religion
_______________
8
Scobey vs. Beckman, 41 N.E. 2d 84.
9
See Adye vs. Smith, 26 Am. Rep. 424.
10
See Read vs. McLean, 200 So. 109.
11
In re Seaman’s Estate, 139 N.E. 2d 17.
205
VOL. 236, SEPTEMBER 1, 1994 205
Centeno vs. Villalon-Pornillos
use” as regards exemption from inheritance tax.12
On the other hand, to subsume the “religious” purpose of the
solicitation within the concept of “charitable” purpose which under
Presidential Decree No. 1564 requires a prior permit from the
Department of Social Services and Development, under pain of
penal liability in the absence thereof, would be prejudicial to
petitioner. Accordingly, the term “charitable” should be strictly
construed so as to exclude solicitations for “religious” purposes.
Thereby, we adhere to the fundamental doctrine underlying
virtually all penal legislations that such interpretation should be
adopted as would favor the accused.
For, it is a well-entrenched rule that penal laws are to be
construed strictly against the State and liberally in favor of the
accused. They are not to be extended or enlarged by implications,
intendments, analogies or equitable considerations. They are not to
be strained by construction to spell out a new offense, enlarge the
field of crime or multiply felonies. Hence, in the interpretation of a
penal statute, the tendency is to subject it to careful scrutiny and to
construe it with such strictness as to safeguard the rights of the
accused. If the statute is ambiguous and admits of two reasonable
but contradictory constructions, that which operates in favor of a
party accused under its provisions is to be preferred.
The principle is that acts in and of themselves innocent and
lawful cannot be held to be criminal unless there is a clear and
unequivocal expression of the legislative intent to make them such.
Whatever is not plainly within the provisions of a penal statute
should be regarded as without its intendment. 13
The purpose of strict construction is not to enable a guilty
person to escape punishment through a technicality but to provide
a precise definition of forbidden acts. 14 The word “charitable” is a
matter of description rather than of precise definition, and each
case involving a determination of that which is charitable must be
Page 87 of 267
decided on its own particular facts and circumstances. 15 The law
does not operate in vacuo nor should its applicability be
_________________
12
In re Clark’s Estate, 159 A. 500.
13
Martin, Statutory Construction, 1979 ed., 183.
14
Gaanan vs. Intermediate Appellate Court, et al., G.R. No. L-
69809, October 16, 1986, 145 SCRA 112.
15
Topeka Presbyterian Manor, Inc. vs. Board, 402 P. ed 802.
206
206 SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
determined by circumstances in the abstract.
Furthermore, in the provisions of the Constitution and the
statutes mentioned above, the enumerations therein given which
include the words “charitable” and “religious” make use of the
disjunctive “or.” In its elementary sense, “or” as used in a statute is
a disjunctive article indicating an alternative. It often connects a
series of words or propositions indicating a choice of either. When
“or” is used, the various members of the enumeration are to be
taken separately.16 Accordingly, “charitable” and “religious,” which
are integral parts of an enumeration using the disjunctive “or”
should be given different, distinct, and disparate meanings. There
is no compelling consideration why the same treatment or usage of
these words cannot be made applicable to the questioned
provisions of Presidential Decree No. 1564.
II. Petitioner next avers that solicitations for religious purposes
cannot be penalized under the law for, otherwise, it will constitute
an abridgment or restriction on the free exercise clause guaranteed
under the Constitution.
It may be conceded that the construction of a church is a social
concern of the people and, consequently, solicitations appurtenant
thereto would necessarily involve public welfare. Prefatorily, it is
not implausible that the regulatory powers of the State may, to a
certain degree, extend to solicitations of this nature. Considering,
however, that such an activity is within the cloak of the free
exercise clause under the right to freedom of religion guaranteed
by the Constitution, it becomes imperative to delve into the
efficaciousness of a statutory grant of the power to regulate the
exercise of this constitutional right and the allowable restrictions
which may possibly be imposed thereon.
CONSTI 2 CASES Free Exercise of Religion
The constitutional inhibition of legislation on the subject of
religion has a double aspect. On the one hand, it forestalls
compulsion by law of the acceptance of any creed or the practice of
any form of worship. Freedom of conscience and freedom to adhere
to such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus,
the constitution embraces two concepts, that is,
_______________
16
Martin, op. cit., 81.
207
VOL. 236, SEPTEMBER 1, 1994 207
Centeno vs. Villalon-Pornillos
freedom to believe and freedom to act. The first is absolute but, in
the nature of things, the second cannot be. Conduct remains
subject to regulation for the protection of society. The freedom to
act must have appropriate definitions to preserve the enforcement
of that protection. In every case, the power to regulate must be so
exercised, in attaining a permissible end, as not to unduly infringe
on the protected freedom.17
Whence, even the exercise of religion may be regulated, at
some slight inconvenience, in order that the State may protect its
citizens from injury. Without doubt, a State may protect its citizens
from fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to
regulate the time and manner of solicitation generally, in the
interest of public safety, peace, comfort, or convenience.18
It does not follow, therefore, from the constitutional guaranties
of the free exercise of religion that everything which may be so
called can be tolerated.19 It has been said that a law advancing a
legitimate governmental interest is not necessarily invalid as one
interfering with the “free exercise” of religion merely because it
also incidentally has a detrimental effect on the adherents of one or
more religion.20 Thus, the general regulation, in the public interest,
of solicitation, which does not involve any religious test and does
not unreasonably obstruct or delay the collection of funds, is not
open to any constitutional objection, even though the collection be
for a religious purpose. Such regulation would not constitute a
Page 88 of 267
prohibited previous restraint on the free exercise of religion or
interpose an inadmissible obstacle to its exercise. 21
Even with numerous regulative laws in existence, it is surprising
how many operations are carried on by persons and associations
who, secreting their activities under the guise of benevolent
purposes, succeed in cheating and defrauding a generous public. It
is in fact amazing how profitable the fraudulent
__________________
17
Cantwell vs. Connecticut, 301 U.S. 296 (1940).
18
Id., loc. cit.
19
16 Am. Jur. 2d, Constitutional Law, 283.
20
Ibid, id., 282.
21
Cantwell vs. Connecticut, supra.
208
208 SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
schemes and practices are to people who manipulate them. The
State has authority under the exercise of its police power to
determine whether or not there shall be restrictions on soliciting by
unscrupulous persons or for unworthy causes or for fraudulent
purposes. That solicitation of contributions under the guise of
charitable and benevolent purposes is grossly abused is a matter of
common knowledge. Certainly the solicitation of contributions in
good faith for worthy purposes should not be denied, but
somewhere should be lodged the power to determine within
reasonable limits the worthy from the unworthy. 22 The objectionable
practices of unscrupulous persons are prejudicial to worthy and
proper charities which naturally suffer when the confidence of the
public in campaigns for the raising of money for charity is lessened
or destroyed.23 Some regulation of public solicitation is, therefore,
in the public interest.24
To conclude, solicitation for religious purposes may be subject to
proper regulation by the State in the exercise of police power.
However, in the case at bar, considering that solicitations intended
for a religious purpose are not within the coverage of Presidential
Decree No. 1564, as earlier demonstrated, petitioner cannot be
held criminally liable therefor.
As a final note, we reject the reason advanced by respondent
judge for increasing the penalty imposed by the trial court,
premised on the supposed perversity of petitioner’s act which
CONSTI 2 CASES Free Exercise of Religion
thereby caused damage to the complainant. It must be here
emphasized that the trial court, in the dispositive portion of its
decision, even recommended executive clemency in favor of
petitioner and the other accused after finding that the latter acted
in good faith in making the solicitation from the complainant, an
observation with which we fully agree. After all, mistake upon a
doubtful and difficult question of law can be the basis of good faith,
especially for a layman.
There is likewise nothing in the findings of respondent judge
which would indicate, impliedly or otherwise, that petitioner and his
co-accused acted abusively or malevolently. This could be reflective
upon her objectivity, considering that the complainant
______________
22
Id., loc. cit.
23
City of Seattle vs. Rogers, 106 P. 2d 598.
24
Commonwealth vs. Creighton, et al., 170 A. 720.
209
VOL. 236, SEPTEMBER 1, 1994 209
Centeno vs. Villalon-Pornillos
in this case is herself a judge of the Regional Trial Court at Kalookan
City. It bears stressing at this point that a judge is required to so
behave at all times as to promote public confidence in the integrity
and impartiality of the judiciary,25 should be vigilant against any
attempt to subvert its independence, and must resist any pressure
from whatever source.26
WHEREFORE, the decision appealed from is hereby REVERSED
and SET ASIDE, and petitioner Martin Centeno is ACQUITTED of
the offense charged, with costs de oficio.
SO ORDERED.
Narvasa (C.J., Chairman) and Puno, J., concur.
Padilla, J., I join Mr. Justice Mendoza in his concurring
opinion.
Mendoza, J., See separate concurring opinion.
U.S. Supreme Court
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Page 89 of 267
Wisconsin v. Yoder
No. 70-110
Argued December 8, 1971
Decided May 15, 1972
406 U.S. 205
CERTIORARI TO THE SUPREME COURT OF WISCONSIN
Syllabus
Respondents, members of the Old Order Amish religion and the
Conservative Amish Mennonite Church, were convicted of violating
Wisconsin's compulsory school attendance law (which requires a
child's school attendance until age 16) by declining to send their
children to public or private school after they had graduated from
the eighth grade. The evidence showed that the Amish provide
continuing informal vocational education to their children designed
to prepare them for life in the rural Amish community. The evidence
also showed that respondents sincerely believed that high school
attendance was contrary to the Amish religion and way of life, and
that they would endanger their own salvation and that of their
children by complying with the law. The State Supreme Court
sustained respondents' claim that application of the compulsory
school attendance law to them violated their rights under the Free
Exercise Clause of the First Amendment, made applicable to the
States by the Fourteenth Amendment.
Held:
1. The State's interest in universal education is not totally free from
a balancing process when it impinges on other fundamental rights,
such as those specifically protected by the Free Exercise Clause of
the First Amendment and the traditional interest of parents with
respect to the religious upbringing of their children. Pp. 406 U. S.
213-215.
CONSTI 2 CASES Free Exercise of Religion
2. Respondents have amply supported their claim that enforcement
of the compulsory formal education requirement after the eighth
grade would gravely endanger if not destroy the free exercise of
their religious beliefs. Pp. 406 U. S. 215-219
3. Aided by a history of three centuries as an identifiable religious
sect and a long history as a successful and self-sufficient segment
of American society, the Amish have demonstrated the sincerity of
their religious beliefs, the interrelationship of belief with their mode
of life, the vital role that belief and daily conduct play in the
continuing survival of Old Order Amish communities, and the
hazards presented by the State's enforcement of a statute
generally valid as to others. Beyond this, they have
Page 406 U. S. 206
carried the difficult burden of demonstrating the adequacy of their
alternative mode of continuing informal vocational education in
terms of the overall interest that the State relies on in support of its
program of compulsory high school education. In light of this
showing, and weighing the minimal difference between what the
State would require and what the Amish already accept, it was
incumbent on the State to show with more particularity how its
admittedly strong interest in compulsory education would be
adversely affected by granting an exemption to the Amish. Pp. 406
U. S. 212-29, 406 U. S. 234-236.
4. The State's claim that it is empowered, as parens patriae, to
extend the benefit of secondary education to children regardless of
the wishes of their parents cannot be sustained against a free
exercise claim of the nature revealed by this record, for the Amish
have introduced convincing evidence that accommodating their
religious objections by forgoing one or two additional years of
compulsory education will not impair the physical or mental health
of the child, or result in an inability to be self-supporting or to
discharge the duties and responsibilities of citizenship, or in any
other way materially detract from the welfare of society. Pp. 406 U.
S. 229-234.
49 Wis.2d 430, 182 N.W.2d 539, affirmed.
Page 90 of 267
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. STEWART, J., filed a concurring opinion, in which BRENNAN,
J., joined, post, p. 406 U. S. 237. WHITE, J., filed a concurring
opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 406 U.
S. 237. DOUGLAS, J., filed an opinion dissenting in part, post, p. 406
U. S. 241. POWELL and REHNQUIST, JJ., took no part in the
consideration or decision of the case.
Page 406 U. S. 207
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
On petition of the State of Wisconsin, we granted the writ of
certiorari in this case to review a decision of the Wisconsin
Supreme Court holding that respondents' convictions of violating
the State's compulsory school attendance law were invalid under
the Free Exercise Clause of the First Amendment to the United
States Constitution, made applicable to the States by the
Fourteenth Amendment. For the reasons hereafter stated, we affirm
the judgment of the Supreme Court of Wisconsin.
Respondents Jonas Yoder and Wallace Miller are members of the
Old Order Amish religion, and respondent Adin Yutzy is a member of
the Conservative Amish Mennonite Church. They and their families
are residents of Green County, Wisconsin. Wisconsin's compulsory
school attendance law required them to cause their children to
attend public or private school until reaching age 16, but the
respondents declined to send their children, ages 14 and 15, to
public school after they completed the eighth grade. [Footnote 1]
The children were not enrolled in any private school, or within any
recognized exception to the compulsory attendance law, [Footnote
2] and they are conceded to be subject to the Wisconsin statute.
Page 406 U. S. 208
On complaint of the school district administrator for the public
schools, respondents were charged, tried, and convicted of
violating the compulsory attendance law in Green County Court,
and were fined the sum of $5 each. [Footnote 3] Respondents
defended on the ground that the application
CONSTI 2 CASES Free Exercise of Religion
Page 406 U. S. 209
of the compulsory attendance law violated their rights under the
First and Fourteenth Amendments. [Footnote 4] The trial testimony
showed that respondents believed, in accordance with the tenets of
Old Order Amish communities generally, that their children's
attendance at high school, public or private, was contrary to the
Amish religion and way of life. They believed that, by sending their
children to high school, they would not only expose themselves to
the danger of the censure of the church community, but, as found
by the county court, also endanger their own salvation and that of
their children. The State stipulated that respondents' religious
beliefs were sincere.
In support of their position, respondents presented as expert
witnesses scholars on religion and education whose testimony is
uncontradicted. They expressed their opinions on the relationship
of the Amish belief concerning school attendance to the more
general tenets of their religion, and described the impact that
compulsory high school attendance could have on the continued
survival of Amish communities as they exist in the United States
today. The history of the Amish
Page 406 U. S. 210
sect was given in some detail, beginning with the Swiss Anabaptists
of the 16th century, who rejected institutionalized churches and
sought to return to the early, simple, Christian life deemphasizing
material success, rejecting the competitive spirit, and seeking to
insulate themselves from the modern world. As a result of their
common heritage, Old Order Amish communities today are
characterized by a fundamental belief that salvation requires life in
a church community separate and apart from the world and worldly
influence. This concept of life aloof from the world and its values is
central to their faith.
A related feature of Old Order Amish communities is their devotion
to a life in harmony with nature and the soil, as exemplified by the
simple life of the early Christian era that continued in America
during much of our early national life. Amish beliefs require
members of the community to make their living by farming or
closely related activities. Broadly speaking, the Old Order Amish
Page 91 of 267
religion pervades and determines the entire mode of life of its
adherents. Their conduct is regulated in great detail by
the Ordnung, or rules, of the church community. Adult baptism,
which occurs in late adolescence, is the time at which Amish young
people voluntarily undertake heavy obligations, not unlike the Bar
Mitzvah of the Jews, to abide by the rules of the church community.
[Footnote 5]
Amish objection to formal education beyond the eighth grade is
firmly grounded in these central religious concepts. They object to
the high school, and higher education generally, because the
values they teach
Page 406 U. S. 211
are in marked variance with Amish values and the Amish way of
life; they view secondary school education as an impermissible
exposure of their children to a "worldly" influence in conflict with
their beliefs. The high school tends to emphasize intellectual and
scientific accomplishments, self-distinction, competitiveness,
worldly success, and social life with other students. Amish society
emphasizes informal "learning through doing;" a life of "goodness,"
rather than a life of intellect; wisdom, rather than technical
knowledge; community welfare, rather than competition; and
separation from, rather than integration with, contemporary worldly
society.
Formal high school education beyond the eighth grade is contrary
to Amish beliefs not only because it places Amish children in an
environment hostile to Amish beliefs, with increasing emphasis on
competition in class work and sports and with pressure to conform
to the styles, manners, and ways of the peer group, but also
because it takes them away from their community, physically and
emotionally, during the crucial and formative adolescent period of
life. During this period, the children must acquire Amish attitudes
favoring manual work and self-reliance and the specific skills
needed to perform the adult role of an Amish farmer or housewife.
They must learn to enjoy physical labor. Once a child has learned
basic reading, writing, and elementary mathematics, these traits,
skills, and attitudes admittedly fall within the category of those
best learned through example and "doing," rather than in a
classroom. And, at this time in life, the Amish child must also grow
CONSTI 2 CASES Free Exercise of Religion
in his faith and his relationship to the Amish community if he is to
be prepared to accept the heavy obligations imposed by adult
baptism. In short, high school attendance with teachers who are
not of the Amish faith -- and may even be hostile to it -- interposes
a serious barrier to the integration of the Amish child into
Page 406 U. S. 212
the Amish religious community. Dr. John Hostetler, one of the
experts on Amish society, testified that the modern high school is
not equipped, in curriculum or social environment, to impart the
values promoted by Amish society.
The Amish do not object to elementary education through the first
eight grades as a general proposition, because they agree that
their children must have basic skills in the "three R's" in order to
read the Bible, to be good farmers and citizens, and to be able to
deal with non-Amish people when necessary in the course of daily
affairs. They view such a basic education as acceptable because it
does not significantly expose their children to worldly values or
interfere with their development in the Amish community during
the crucial adolescent period. While Amish accept compulsory
elementary education generally, wherever possible. they have
established their own elementary schools, in many respects like the
small local schools of the past. In the Amish belief, higher learning
tends to develop values they reject as influences that alienate man
from God.
On the basis of such considerations, Dr. Hostetler testified that
compulsory high school attendance could not only result in great
psychological harm to Amish children, because of the conflicts it
would produce, but would also, in his opinion, ultimately result in
the destruction of the Old Order Amish church community as it
exists in the United States today. The testimony of Dr. Donald A.
Erickson, an expert witness on education, also showed that the
Amish succeed in preparing their high school age children to be
productive members of the Amish community. He described their
system of learning through doing the skills directly relevant to their
adult roles in the Amish community as "ideal," and perhaps
superior to ordinary high school education. The evidence also
showed that the Amish have an excellent
Page 92 of 267
Page 406 U. S. 213
record as law-abiding and generally self-sufficient members of
society.
Although the trial court, in its careful findings, determined that the
Wisconsin compulsory school attendance law, "does interfere with
the freedom of the Defendants to act in accordance with their
sincere religious belief," it also concluded that the requirement of
high school attendance until age 16 was a "reasonable and
constitutional" exercise of governmental power, and therefore
denied the motion to dismiss the charges. The Wisconsin Circuit
Court affirmed the convictions. The Wisconsin Supreme Court,
however, sustained respondents' claim under the Free Exercise
Clause of the First Amendment, and reversed the convictions. A
majority of the court was of the opinion that the State had failed to
make an adequate showing that its interest in "establishing and
maintaining an educational system overrides the defendants' right
to the free exercise of their religion." 49 Wis.2d 430, 447, 182
N.W.2d 539, 547 (1971).
I was an equally firm, even if less explicit, prohibition against the
There is no doubt as to the power of a State, having a high
responsibility for education of its citizens, to impose reasonable
regulations for the control and duration of basic education.See,
e.g., Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S.
534 (1925). Providing public schools ranks at the very apex of the
function of a State. Yet even this paramount responsibility was,
in Pierce, made to yield to the right of parents to provide an
equivalent education in a privately operated system. There, the
Court held that Oregon's statute compelling attendance in a public
school from age eight to age 16 unreasonably interfered with the
interest of parents in directing the rearing of their offspring,
including their education in church-operated schools. As that case
suggests, the values of parental direction of the religious
upbringing
Page 406 U. S. 214
and education of their children in their early and formative years
have a high place in our society. See also Ginsberg v. New York, 390
CONSTI 2 CASES Free Exercise of Religion
U. S. 629, 390 U. S. 639 (1968); Meyer v. Nebraska,262 U. S.
390 (1923); cf. Rowan v. Post Office Dept., 397 U. S. 728 (1970).
Thus, a State's interest in universal education, however highly we
rank it, is not totally free from a balancing process when it impinges
on fundamental rights and interests, such as those specifically
protected by the Free Exercise Clause of the First Amendment, and
the traditional interest of parents with respect to the religious
upbringing of their children so long as they, in the words
of Pierce, "prepare [them] for additional obligations." 268 U.S.
at268 U. S. 535.
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
acknowledgment of the need for universal formal education, the
Religion Clauses had specifically and firmly fixed the right to free
exercise of religious beliefs, and buttressing this fundamental right
establishment of any religion by government. 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 invalidation of
financial aid to parochial schools by government grants for a salary
subsidy for teachers is but one example of the extent to which
courts have gone in this regard, notwithstanding that such aid
programs were legislatively determined to be in the public interest
and the service of sound educational policy by States and by
Congress. Lemon v.
Page 406 U. S. 215
Kurtzman, 403 U. S. 602 (1971); Tilton v. Richardson, 403 U. S.
672 (1971). See also Everson v. Board of Education, 330 U. S.
1, 330 U. S. 18 (1947).
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
Page 93 of 267
exercise of religion. We can accept it as settled, therefore, that,
however strong the State's interest in universal compulsory
education, it is by no means absolute to the exclusion or
subordination of all other interests. E.g., Sherbert v. Verner, 374 U.
S. 398 (1963); McGowan v. Maryland, 366 U. S. 420, 366 U. S.
459 (1961) (separate opinion of Frankfurter, J.); Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 165 (1944).
II
We come then to the quality of the claims of the respondents
concerning the alleged encroachment of Wisconsin's compulsory
school attendance statute on their rights and the rights of their
children to the free exercise of the religious beliefs they and their
forebears have adhered to for almost three centuries. In evaluating
those claims, we must be careful to determine whether the Amish
religious faith and their mode of life are, as they claim, inseparable
and interdependent. A way of life, however virtuous and admirable,
may not be interposed as a barrier to reasonable state regulation of
education if it is based on purely secular considerations; to have
the protection of the Religion Clauses, the claims must be rooted in
religious belief. Although a determination of what is a "religious"
belief or practice entitled to constitutional protection may present a
most delicate question, [Footnote 6] the very concept of ordered
liberty precludes
Page 406 U. S. 216
allowing every person to make his own standards on matters of
conduct in which society as a whole has important interests. Thus,
if the Amish asserted their claims because of their subjective
evaluation and rejection of the contemporary secular values
accepted by the majority, much as Thoreau rejected the social
values of his time and isolated himself at Walden Pond, their claims
would not rest on a religious basis. Thoreau's choice was
philosophical and personal, rather than religious, and such belief
does not rise to the demands of the Religion Clauses.
Giving no weight to such secular considerations, however, we see
that the record in this case abundantly supports the claim that the
traditional way of life of the Amish is not merely a matter of
personal preference, but one of deep religious conviction, shared
CONSTI 2 CASES Free Exercise of Religion
by an organized group, and intimately related to daily living. That
the Old Order Amish daily life and religious practice stem from their
faith is shown by the fact that it is in response to their literal
interpretation of the Biblical injunction from the Epistle of Paul to
the Romans, "be not conformed to this world. . . ." This command is
fundamental to the Amish faith. Moreover, for the Old Order Amish,
religion is not simply a matter of theocratic belief. As the expert
witnesses explained, the Old Order Amish religion pervades and
determines virtually their entire way of life, regulating it with the
detail of the Talmudic diet through the strictly enforced rules of the
church community.
The record shows that the respondents' religious beliefs and
attitude toward life, family, and home have remained constant --
perhaps some would say static -- in a period of unparalleled
progress in human knowledge generally and great changes in
education. [Footnote 7] The respondents
Page 406 U. S. 217
freely concede, and indeed assert as an article of faith, that their
religious beliefs and what we would today call "lifestyle" have not
altered in fundamentals for centuries. Their way of life in a church-
oriented community, separated from the outside world and
"worldly" influences, their attachment to nature, and the soil, is a
way inherently simple and uncomplicated, albeit difficult to
preserve against the pressure to conform. Their rejection of
telephones, automobiles, radios, and television, their mode of
dress, of speech, their habits of manual work do indeed set them
apart from much of contemporary society; these customs are both
symbolic and practical.
As the society around the Amish has become more populous,
urban, industrialized, and complex, particularly in this century,
government regulation of human affairs has correspondingly
become more detailed and pervasive. The Amish mode of life has
thus come into conflict increasingly with requirements of
contemporary society exerting a hydraulic insistence on conformity
to majoritarian standards. So long as compulsory education laws
were confined to eight grades of elementary basic education
imparted in a nearby rural schoolhouse, with a large proportion of
students of the Amish faith, the Old Order Amish had little basis to
Page 94 of 267
fear that school attendance would expose their children to the
worldly influence they reject. But modern compulsory secondary
education in rural areas is now largely carried on in a consolidated
school, often remote from the student's home and alien to his daily
home life. As the record so strongly shows, the values and
programs of the modern secondary school are in sharp conflict with
the fundamental mode of life mandated by the Amish religion;
modern laws requiring compulsory secondary education have
accordingly engendered great concern and conflict. [Footnote 8]
Page 406 U. S. 218
The conclusion is inescapable that secondary schooling, by
exposing Amish children to worldly influences in terms of attitudes,
goals, and values contrary to beliefs, and by substantially
interfering with the religious development of the Amish child and
his integration into the way of life of the Amish faith community at
the crucial adolescent stage of development, contravenes the basic
religious tenets and practice of the Amish faith, both as to the
parent and the child.
The impact of the compulsory attendance law on respondents'
practice of the Amish religion is not only severe, but inescapable,
for the Wisconsin law affirmatively compels them, under threat of
criminal sanction, to perform acts undeniably at odds with
fundamental tenets of their religious beliefs. See Braunfeld v.
Brown, 366 U. S. 599, 366 U. S. 605 (1961). Nor is the impact of the
compulsory attendance law confined to grave interference with
important Amish religious tenets from a subjective point of view. It
carries with it precisely the kind of objective danger to the free
exercise of religion that the First Amendment was designed to
prevent. As the record shows, compulsory school attendance to age
16 for Amish children carries with it a very real threat of
undermining the Amish community and religious practice as they
exist today; they must either abandon belief and be assimilated
into society at large or be forced to migrate to some other and
more tolerant region. [Footnote 9]
Page 406 U. S. 219
In sum, the unchallenged testimony of acknowledged experts in
education and religious history, almost 300 years of consistent
CONSTI 2 CASES Free Exercise of Religion
practice, and strong evidence of a sustained faith pervading and
regulating respondents' entire mode of life support the claim that
enforcement of the State's requirement of compulsory formal
education after the eighth grade would gravely endanger, if not
destroy, the free exercise of respondents' religious beliefs.
III
Neither the findings of the trial court nor the Amish claims as to the
nature of their faith are challenged in this Court by the State of
Wisconsin. Its position is that the State's interest in universal
compulsory formal secondary education to age 16 is so great that it
is paramount to the undisputed claims of respondents that their
mode of preparing their youth for Amish life, after the traditional
elementary education, is an essential part of their religious belief
and practice. Nor does the State undertake to meet the claim that
the Amish mode of life and education is inseparable from and a
part of the basic tenets of their religion -- indeed, as much a part of
their religious belief and practices as baptism, the confessional, or
a sabbath may be for others.
Wisconsin concedes that, under the Religion Clauses, religious
beliefs are absolutely free from the State's control, but it argues
that "actions," even though religiously grounded, are outside the
protection of the First Amendment. [Footnote 10] But our decisions
have rejected the idea that
Page 406 U. S. 220
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. See, e.g., Gillette v. United
States, 401 U. S. 437 (1971); Braunfeld v. Brown, 366 U. S.
599 (1961); Prince v. Massachusetts, 321 U. S.
158 (1944); Reynolds v. United States, 98 U. S. 145(1879). 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,
Page 95 of 267
even under regulations of general applicability. E.g., Sherbert v.
Verner, 374 U. S. 398(1963); Murdock v. Pennsylvania, 319 U. S.
105 (1943); Cantwell v. Connecticut, 310 U. S. 296,310 U. S. 303-
304 (1940). 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. Cf.
Lemon v. Kurtzman, 403 U.S.S. at 403 U. S. 612.
Nor can this case be disposed of on the grounds that Wisconsin's
requirement for school attendance to age 16 applies uniformly to
all citizens of the State and does not, on its face, discriminate
against religions or a particular religion, or that it is motivated by
legitimate secular concerns. A regulation neutral on its face may, in
its application, nonetheless offend the constitutional requirement
for governmental neutrality if it unduly burdens the free exercise of
religion. Sherbert v. Verner, supra; cf. Walz v. Tax Commission, 397
U. S. 664 (1970). The Court must not ignore the danger that an
exception
Page 406 U. S. 221
from a general obligation of citizenship on religious grounds may
run afoul of the Establishment Clause, but that danger cannot be
allowed to prevent any exception, no matter how vital it may be to
the protection of values promoted by the right of free exercise. By
preserving doctrinal flexibility and recognizing the need for a
sensible and realistic application of the Religion Clauses,
"we have been able to chart a course that preserved the autonomy
and freedom of religious bodies while avoiding any semblance of
established religion. This is a 'tight rope,' and one we have
successfully traversed."
Walz v. Tax Commission, supra, at 397 U. S. 672.
We turn, then, to the State's broader contention that its interest in
its system of compulsory education is so compelling that even the
established religious practices of the Amish must give way. Where
fundamental claims of religious freedom are at stake, however, we
cannot accept such a sweeping claim; despite its admitted validity
in the generality of cases, we must searchingly examine the
CONSTI 2 CASES Free Exercise of Religion
interests that the State seeks to promote by its requirement for
compulsory education to age 16, and the impediment to those
objectives that would flow from recognizing the claimed Amish
exemption. See, e.g., Sherbert v. Verner, supra; Martin v. City of
Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S.
147 (1939).
The State advances two primary arguments in support of its system
of compulsory education. It notes, as Thomas Jefferson pointed out
early in our history, that some degree of education is necessary to
prepare citizens to participate effectively and intelligently in our
open political system if we are to preserve freedom and
independence. Further, education prepares individuals to be self-
reliant and self-sufficient participants in society. We accept these
propositions.
Page 406 U. S. 222
However, the evidence adduced by the Amish in this case is
persuasively to the effect that an additional one or two years of
formal high school for Amish children in place of their long-
established program of informal vocational education would do
little to serve those interests. Respondents' experts testified at trial,
without challenge, that the value of all education must be assessed
in terms of its capacity to prepare the child for life. It is one thing to
say that compulsory education for a year or two beyond the eighth
grade may be necessary when its goal is the preparation of the
child for life in modern society as the majority live, but it is quite
another if the goal of education be viewed as the preparation of the
child for life in the separated agrarian community that is the
keystone of the Amish faith. See Meyer v. Nebraska, 262 U.S.
at 262 U. S. 400.
The State attacks respondents' position as one fostering
"ignorance" from which the child must be protected by the State.
No one can question the State's duty to protect children from
ignorance, but this argument does not square with the facts
disclosed in the record. Whatever their idiosyncrasies as seen by
the majority, this record strongly shows that the Amish community
has been a highly successful social unit within our society, even if
apart from the conventional "mainstream." Its members are
productive and very law-abiding members of society; they reject
Page 96 of 267
public welfare in any of its usual modern forms. The Congress itself
recognized their self-sufficiency by authorizing exemption of such
groups as the Amish from the obligation to pay social security
taxes. [Footnote 11]
Page 406 U. S. 223
It is neither fair nor correct to suggest that the Amish are opposed
to education beyond the eighth grade level. What this record shows
is that they are opposed to conventional formal education of the
type provided by a certified high school because it comes at the
child's crucial adolescent period of religious development. Dr.
Donald Erickson, for example, testified that their system of
"learning by doing" was an "ideal system" of education in terms of
preparing Amish children for life as adults in the Amish community,
and that "I would be inclined to say they do a better job in this than
most of the rest of us do." As he put it,
"These people aren't purporting to be learned people, and it seems
to me the self-sufficiency of the community is the best evidence I
can point to -- whatever is being done seems to function well.
[Footnote 12]"
We must not forget that, in the Middle Ages, important values of
the civilization of the Western World were preserved by members of
religious orders who isolated themselves from all worldly influences
against great obstacles. There can be no assumption that today's
majority is
Page 406 U. S. 224
"right," and the Amish and others like them are "wrong." A way of
life that is odd or even erratic but interferes with no rights or
interests of others is not to be condemned because it is different.
The State, however, supports its interest in providing an additional
one or two years of compulsory high school education to Amish
children because of the possibility that some such children will
choose to leave the Amish community, and that, if this occurs, they
will be ill-equipped for life. The State argues that, if Amish children
leave their church, they should not be in the position of making
CONSTI 2 CASES Free Exercise of Religion
their way in the world without the education available in the one or
two additional years the State requires. However, on this record,
that argument is highly speculative. There is no specific evidence of
the loss of Amish adherents by attrition, nor is there any showing
that, upon leaving the Amish community, Amish children, with their
practical agricultural training and habits of industry and self-
reliance, would become burdens on society because of educational
shortcomings. Indeed, this argument of the State appears to rest
primarily on the State's mistaken assumption, already noted, that
the Amish do not provide any education for their children beyond
the eighth grade, but allow them to grow in "ignorance." To the
contrary, not only do the Amish accept the necessity for formal
schooling through the eighth grade level, but continue to provide
what has been characterized by the undisputed testimony of expert
educators as an "ideal" vocational education for their children in
the adolescent years.
There is nothing in this record to suggest that the Amish qualities of
reliability, self-reliance, and dedication to work would fail to find
ready markets in today's society. Absent some contrary evidence
supporting the
Page 406 U. S. 225
State's position, we are unwilling to assume that persons
possessing such valuable vocational skills and habits are doomed
to become burdens on society should they determine to leave the
Amish faith, nor is there any basis in the record to warrant a finding
that an additional one or two years of formal school education
beyond the eighth grade would serve to eliminate any such
problem that might exist.
Insofar as the State's claim rests on the view that a brief additional
period of formal education is imperative to enable the Amish to
participate effectively and intelligently in our democratic process, it
must fall. The Amish alternative to formal secondary school
education has enabled them to function effectively in their day-to-
day life under self-imposed limitations on relations with the world,
and to survive and prosper in contemporary society as a separate,
sharply identifiable and highly self-sufficient community for more
than 200 years in this country. In itself, this is strong evidence that
they are capable of fulfilling the social and political responsibilities
Page 97 of 267
of citizenship without compelled attendance beyond the eighth
grade at the price of jeopardizing their free exercise of religious
belief. [Footnote 13] When Thomas Jefferson emphasized the need
for education as a bulwark of a free people against tyranny, there is
nothing to indicate he had in mind compulsory education through
any fixed age beyond a basic education. Indeed, the Amish
communities singularly parallel and reflect many of the virtues of
Jefferson's ideal of the "sturdy yeoman" who would form the basis
of what he considered as the
Page 406 U. S. 226
ideal of a democratic society. [Footnote 14] Even their idiosyncratic
separateness exemplifies the diversity we profess to admire and
encourage.
The requirement for compulsory education beyond the eighth grade
is a relatively recent development in our history. Less than 60 years
ago, the educational requirements of almost all of the States were
satisfied by completion of the elementary grades, at least where
the child was regularly and lawfully employed. [Footnote 15] The
independence
Page 406 U. S. 227
and successful social functioning of the Amish community for a
period approaching almost three centuries and more than 200
years in this country are strong evidence that there is, at best, a
speculative gain, in terms of meeting the duties of citizenship, from
an additional one or two years of compulsory formal education.
Against this background, it would require a more particularized
showing from the State on this point to justify the severe
interference with religious freedom such additional compulsory
attendance would entail.
We should also note that compulsory education and child labor laws
find their historical origin in common humanitarian instincts, and
that the age limits of both laws have been coordinated to achieve
their related objectives. [Footnote 16] In the context of this case,
such considerations,
CONSTI 2 CASES Free Exercise of Religion
Page 406 U. S. 228
if anything, support rather than detract from, respondents' position.
The origins of the requirement for school attendance to age 16, an
age falling after the completion of elementary school but before
completion of high school, are not entirely clear. But, to some
extent, such laws reflected the movement to prohibit most child
labor under age 16 that culminated in the provisions of the Federal
Fair Labor Standards Act of 1938. [Footnote 17] It is true, then, that
the 16-year child labor age limit may, to some degree, derive from
a contemporary impression that children should be in school until
that age. But, at the same time, it cannot be denied that,
conversely, the 16-year education limit reflects, in substantial
measure, the concern that children under that age not be employed
under conditions hazardous to their health, or in work that should
be performed by adults.
The requirement of compulsory schooling to age 16 must therefore
be viewed as aimed not merely at providing educational
opportunities for children, but as an alternative to the equally
undesirable consequence of unhealthful child labor displacing adult
workers, or, on the other hand, forced idleness. [Footnote 18] The
two kinds of statutes -- compulsory school attendance and child
labor laws -- tend to keep children of certain ages off the labor
market and in school; this regimen, in turn, provides opportunity to
prepare for a livelihood of a higher order than that which children
could pursue without education, and protects their health in
adolescence.
In these terms, Wisconsin's interest in compelling the school
attendance of Amish children to age 16 emerges as somewhat less
substantial than requiring such attendance
Page 406 U. S. 229
for children generally. For, while agricultural employment is not
totally outside the legitimate concerns of the child labor laws,
employment of children under parental guidance and on the family
farm from age 14 to age 16 is an ancient tradition that lies at the
periphery of the objectives of such laws. [Footnote 19] There is no
intimation that the Amish employment of their children on family
farms is in any way deleterious to their health, or that Amish
Page 98 of 267
parents exploit children at tender years. Any such inference would
be contrary to the record before us. Moreover, employment of
Amish children on the family farm does not present the undesirable
economic aspects of eliminating jobs that might otherwise be held
by adults.
IV
Finally, the State, on authority of Prince v. Massachusetts, argues
that a decision exempting Amish children from the State's
requirement fails to recognize the substantive right of the Amish
child to a secondary education, and fails to give due regard to the
power of the State as parens patriae to extend the benefit of
secondary education to children regardless of the wishes of their
parents. Taken at its broadest sweep, the Court's language
in Prince might be read to give support to the State's position.
However, the Court was not confronted in Princewith a situation
comparable to that of the Amish as revealed in this record; this is
shown by the
Page 406 U. S. 230
Court's severe characterization of the evils that it thought the
legislature could legitimately associate with child labor, even when
performed in the company of an adult. 321 U.S. at321 U. S. 169-
170. The Court later took great care to confine Prince to a narrow
scope in Sherbert v. Verner, when it stated:
"On the other hand, the Court has rejected challenges under the
Free Exercise Clause to governmental regulation of certain overt
acts prompted by religious beliefs or principles, for 'even when the
action is in accord with one's religious convictions, [it] is not totally
free from legislative restrictions.' Braunfeld v. Brown, 366 U. S.
599, 366 U. S. 603. The conduct or actions so regulated have
invariably posed some substantial threat to public safety, peace or
order. See, e.g., Reynolds v. United States, 98 U. S. 145; Jacobson v.
Massachusetts, 197 U. S. 11; Prince v. Massachusetts, 321 U. S.
158. . . ."
374 U.S. at 374 U. S. 402-403.
CONSTI 2 CASES Free Exercise of Religion
This case, of course, is not one in which any harm to the physical or
mental health of the child or to the public safety, peace, order, or
welfare has been demonstrated or may be properly inferred.
[Footnote 20] The record is to the contrary, and any reliance on
that theory would find no support in the evidence.
Contrary to the suggestion of the dissenting opinion of MR. JUSTICE
DOUGLAS, our holding today in no degree depends on the assertion
of the religious interest of the child, as contrasted with that of the
parents. It is the parents who are subject to prosecution here for
failing to cause their children to attend school, and it
Page 406 U. S. 231
is their right of free exercise, not that of their children, that must
determine Wisconsin's power to impose criminal penalties on the
parent. The dissent argues that a child who expresses a desire to
attend public high school in conflict with the wishes of his parents
should not be prevented from doing so. There is no reason for the
Court to consider that point, since it is not an issue in the case. The
children are not parties to this litigation. The State has at no point
tried this case on the theory that respondents were preventing their
children from attending school against their expressed desires, and,
indeed, the record is to the contrary. [Footnote 21] The state's
position from the outset has been that it is empowered to apply its
compulsory attendance law to Amish parents in the same manner
as to other parents -- that is, without regard to the wishes of the
child. That is the claim we reject today.
Our holding in no way determines the proper resolution of possible
competing interests of parents, children, and the State in an
appropriate state court proceeding in which the power of the State
is asserted on the theory that Amish parents are preventing their
minor children from attending high school despite their expressed
desires to the contrary. Recognition of the claim of the State in such
a proceeding would, of course, call into question traditional
concepts of parental control over the religious upbringing and
education of their minor children recognized in this Court's past
decisions. It is clear that such an intrusion by a State into family
decisions in the area of religious training would give rise to grave
questions of religious freedom comparable to those raised here
Page 99 of 267
Page 406 U. S. 232
and those presented in Pierce v. Society of Sisters, 268 U. S.
510 (1925). On this record, we neither reach nor decide those
issues.
The State's argument proceeds without reliance on any actual
conflict between the wishes of parents and children. It appears to
rest on the potential that exemption of Amish parents from the
requirements of the compulsory education law might allow some
parents to act contrary to the best interests of their children by
foreclosing their opportunity to make an intelligent choice between
the Amish way of life and that of the outside world. The same
argument could, of course, be made with respect to all church
schools short of college. There is nothing in the record or in the
ordinary course of human experience to suggest that non-Amish
parents generally consult with children of ages 14-16 if they are
placed in a church school of the parents' faith.
Indeed, it seems clear that, if the State is empowered, as parens
patriae, to "save" a child from himself or his Amish parents by
requiring an additional two years of compulsory formal high school
education, the State will, in large measure, influence, if not
determine, the religious future of the child. Even more markedly
than in Prince, therefore, this case involves the fundamental
interest of parents, as contrasted with that of the State, to guide
the religious future and education of their children. The history and
culture of Western civilization reflect a strong tradition of parental
concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition. If
not the first, perhaps the most significant statements of the Court
in this area are found in Pierce v. Society of Sisters,in which the
Court observed:
"Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it
entirely plain that the Act
Page 406 U. S. 233
of 1922 unreasonably interferes with the liberty of parents and
guardians to direct the upbringing and education of children under
CONSTI 2 CASES Free Exercise of Religion
their control. As often heretofore pointed out, rights guaranteed by
the Constitution may not be abridged by legislation which has no
reasonable relation to some purpose within the competency of the
State. The fundamental theory of liberty upon which all
governments in this Union repose excludes any general power of
the State to standardize its children by forcing them to accept
instruction from public teachers only. The child is not the mere
creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and
prepare him for additional obligations."
268 U.S. at 268 U. S. 534-535.
The duty to prepare the child for "additional obligations," referred
to by the Court, must be read to include the inculcation of moral
standards, religious beliefs, and elements of good
citizenship. Pierce, of course, recognized that, where nothing more
than the general interest of the parent in the nurture and education
of his children is involved, it is beyond dispute that the State acts
"reasonably" and constitutionally in requiring education to age 16
in some public or private school meeting the standards prescribed
by the State.
However read, the Court's holding in Pierce stands as a charter of
the rights of parents to direct the religious upbringing of their
children. And, when the interests of parenthood are combined with
a free exercise claim of the nature revealed by this record, more
than merely a "reasonable relation to some purpose within the
competency of the State" is required to sustain the validity of the
State's requirement under the First Amendment. To be sure, the
power of the parent, even when linked to a free exercise claim, may
be subject to limitation under Prince
Page 406 U. S. 234
if it appears that parental decisions will jeopardize the health or
safety of the child, or have a potential for significant social burdens.
But, in this case, the Amish have introduced persuasive evidence
undermining the arguments the State has advanced to support its
claims in terms of the welfare of the child and society as a whole.
The record strongly indicates that accommodating the religious
objections of the Amish by forgoing one, or at most two, additional
Page 100 of 267
years of compulsory education will not impair the physical or
mental health of the child or result in an inability to be self-
supporting or to discharge the duties and responsibilities of
citizenship, or in any other way materially detract from the welfare
of society.
In the face of our consistent emphasis on the central values
underlying the Religion Clauses in our constitutional scheme of
government, we cannot accept a parens patriae claim of such all-
encompassing scope and with such sweeping potential for broad
and unforeseeable application as that urged by the State.
V incumbent on the State to show with more particularity how its
For the reasons stated we hold, with the Supreme Court of
Wisconsin, that the First and Fourteenth Amendments prevent the
State from compelling respondents to cause their children to attend
formal high school to age 16. [Footnote 22] Our disposition of this
case, however, in no way
Page 406 U. S. 235
alters our recognition of the obvious fact that courts are not school
boards or legislatures, and are ill-equipped to determine the
"necessity" of discrete aspects of a State's program of compulsory
education. This should suggest that courts must move with great
circumspection in performing the sensitive and delicate task of
weighing a State's legitimate social concern when faced with
religious claims for exemption from generally applicable
educational requirements. It cannot be overemphasized that we are
not dealing with a way of life and mode of education by a group
claiming to have recently discovered some "progressive" or more
enlightened process for rearing children for modern life.
Aided by a history of three centuries as an identifiable religious sect
and a long history as a successful and self-sufficient segment of
American society, the Amish in this case have convincingly
demonstrated the sincerity of their religious beliefs, the
interrelationship of belief with their mode of life, the vital role that
belief and daily conduct play in the continued survival of Old Order
Amish communities and their religious organization, and the
hazards presented by the State's enforcement of a statute
CONSTI 2 CASES Free Exercise of Religion
generally valid as to others. Beyond this, they have carried the
even more difficult burden of demonstrating the adequacy of their
alternative mode of continuing informal vocational education in
terms of precisely those overall interests that the State advances in
support of its program of compulsory high school education. In light
of this convincing
Page 406 U. S. 236
showing, one that probably few other religious groups or sects
could make, and weighing the minimal difference between what the
State would require and what the Amish already accept, it was
admittedly strong interest in compulsory education would be
adversely affected by granting an exemption to the
Amish. Sherbert v. Verner, supra.
Nothing we hold is intended to undermine the general applicability
of the State's compulsory school attendance statutes or to limit the
power of the State to promulgate reasonable standards that, while
not impairing the free exercise of religion, provide for continuing
agricultural vocational education under parental and church
guidance by the Old Order Amish or others similarly situated. The
States have had a long history of amicable and effective
relationships with church-sponsored schools, and there is no basis
for assuming that, in this related context, reasonable standards
cannot be established concerning the content of the continuing
vocational education of Amish children under parental guidance,
provided always that state regulations are not inconsistent with
what we have said in this opinion. [Footnote 23]
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this case.
VOL. 86, NOVEMBER 20, 1978 413
Pamil vs. Teleron
No. L-34854. November 20, 1978.*
Page 101 of 267
FORTUNATO R. PAMIL, petitioner-appellant, vs. HONORABLE
VICTORINO C. TELERON, as Judge of the Court of First
Instance of Bohol, Branch III, and REV. FR. MARGARITO
R. GONZAGA, respondents-appellees.
Supreme Court; Quo warranto; Constitution Law; Election
Law;Administration Law; Provision of Revised Administrative Code
barring ecclesiastics from being elected to public office held
constitutional; Minority votes of 5 members of Supreme Court
prevailed over insufficient 7 votes of members, as the requirement
to declare a law unconstitutional is 8 votes; Case at bar.—There is
no clear-cut answer from this Tribunal. After a lengthy and
protracted deliberation, the Court is divided on the issue. Seven
members of the Court are of the view that the judgment should be
affirmed as the challenged provision is no longer operative either
because it was superseded by the 1935 Constitution or repealed.
Outside of the writer of this opinion, six other Justices are of this
mind. They are Justices Teehankee, Muñoz Palma, Concepcion Jr.,
Santos, Fernandez, and Guerrero. For them, the overriding principle
of the supremacy of the Constitution or, at the very least, the
repeal of such provision bars a reversal. The remaining five
members of this Court, Chief Justice Castro, Justices Barredo,
Makasiar, Antonio, and Aquino, on the other hand, hold the position
that such a prohibition against an ecclesiastic running for elective
office is not tainted with any constitutional infirmity. The vote is
thus indecisive. While five members of the Court constitute a
minority, the vote of the remaining seven does not suffice to render
the challenged provision ineffective. Section 2175 of the Revised
Administrative Code, as far as ecclesiastics are concerned, must be
accorded respect. The presumption of validity calls for its
application. Under the circumstances, certiorari lies. That is the
conclusion arrived at by the writer of this opinion, joined by Justices
Concepcion Jr., Santos, Fernandez, and Guerrero. They have no
choice then but to vote for the reversal of the lower court decision
and declare ineligible respondent Father Margarito R. Gonzaga for
the office of municipal mayor. With the aforesaid five other
members, led by the Chief Justice, entertaining no doubt as to his
lack of eligibility, this petition for certiorari must be granted.
___________
* EN BANC.
414
CONSTI 2 CASES Free Exercise of Religion
414 SUPREME COURT REPORTS ANNOTATED
Pamil vs. Teleron
Fernando, J., opinion
Quo Warranto; Constitutional Law; Election
Law; Administrative Law; Sec. 2175 of Revised Administrative Code
prohibiting ecclesiastics from holding public office is
unconstitutional; Reasons; Ban in Sec. 2175 already superseded by
the 1935 and 1973 Constitutions on provision or non-religious test
for exercise of civil or political rights.—The Revised Administrative
Code was enacted in 1917. In the 1935 Constitution, as it is now
under the present Charter, it is explicitly declared: “No religious
test shall be required for the exercise of civil or political rights.” The
principle of the paramount character of the fundamental law thus
comes into play. There are previous rulings to that effect. The ban
imposed by the Administrative Code cannot survive. So the writer
of this opinion would hold.
Castro, C.J., separate opinion
Quo Warranto; Constitutional Law; Administrative Law; Elec-
tion Law; Sec. 2175 of Adm. Code on ecclesiastics not repealed by
1971 Election Code nor superseded or rendered inoperative by
1935 and 1973 Constitutions.—The thrust of section 23 of the
Election Code of 1971 is simple: what is the effect of the filing of
certificates of candidacy by appointive, elective and other officials
of the government? The said section is therefore of no relevance
(except to the extent that it allows members of the Armed Forces to
run for elective positions). Upon the other hand, section 2175 of the
Administrative Code treats of a disparate matter, which is the
absolute disqualification of the classes of persons enumerated
therein. Nor does the proscription contained in the said section
2175 prescribe a religious test for the exercise of civil or political
rights. I have searchingly analyzed this provision, and I am unable
to infer from it any requirement of a religious test. x x x Since
section 2175 of the Administrative Code has not been superseded,
and has been neither expressly nor impliedly repealed in so far as
the absolute disqualification of ecclesiastics is concerned, it is
perforce the controlling law in the case at bar. Careful note must be
taken that the absolute disqualification is couched in the most
compelling of negative terms. The law reads: “In no case shall there
Page 102 of 267
be elected or appointed to a municipal office ecclesiastics . . .”
(italics supplied)
Same; Implied repeal of statutes; There must be absolute
repugnance between two provisions of law for existence of implied
415
VOL. 86, NOVEMBER 20, 1978 41
5
Pamil vs. Teleron
repeal.—On the complementary question of implied repeal, it
is a time-honored cardinal rule of legal hermeneutics that for a later
provision of law to be considered as having repealed a prior
provision, there must be such absolute repugnance between the
two that the prior provision must give way. I do not discern any
such repugnance.
Same; Effect of allowing ecclesiastics to hold public elective
office.—It is thus entirely possible that the election of ecclesiastics
to municipal offices may spawn small religious wars instead of
promote the general community welfare and peace—and these
religious wars could conceivably burgeon into internecine
dimensions. Where then would we consign Pope John XXIII’s
ecumenism? x x x In my view, all ecclesiastics—whoever they are,
whatever their faiths, wherever they may be—should essentially be
pastors, immersing themselves around the clock in the problems of
the disadvantaged and the poor. But they cannot be effective
pastors if they do not dissociate themselves completely from every
and all bane of politics.
Teehankee, J., dissenting opinion
Quo Warranto; Administrative Law; Election Law; Ban in Sec.
2175 of the Adm. Code against ecclesiastics repealed by 1971
Election Code.—As a pure question of law, on the sole issue joined
by the parties, therefore, I hold that the ban in section 2175 of the
Revised Administrative Code against the election of ecclesiastics
(and the three other categories therein mentioned) to a municipal
office has been repealed by the provisions of the Election Code of
1971, which nowhere in its all-embracing and comprehensive text
mentions ecclesiastics (as well as the three other categories in the
aforesaid administrative Code provision) as among those ineligible
or disqualified to run for public office (national or local).
Same; Same; Same; Constitutional Law; Administrative Code
declaring ecclesiastics ineligible for election or appointment to
CONSTI 2 CASES Free Exercise of Religion
municipal office inconsistent with and violative of religious freedom
under 1935 Constitution and provision on non-requirement of
religious test under 1973 Constitution.—On the constitutional
dimension given motu proprio to the case in the main opinion of Mr.
Justice Fernando, by way of “constitutional objectives to the
continuing force and effectivity of Section 2175 as far as
ecclesiastics are concerned.” I concur with the main opinion,
concurred in by five other members of the Court, viz, Justices
Muñoz Palma, Concepcion Jr., Santos, Fernandez and Guerrero that
the archaic Administrative
416
4 SUPREME COURT REPORTS ANNOTATED
16
Pamil vs. Teleron
Code provision declaring ecclesiastics ineligible for election or
appointment to a municipal office is inconsistent with and violative
of the religious freedom guaranteed by the 1935 Constitution and
that to so bar them from office is to impose a religious test in
violation of the Constitutional mandate that “No religious test shall
be required for the exercise of civil or political rights.”
Same; Same; Same; Supreme Court; Applicable law in non-
constitutional cases when there is inconclusive or indecisive vote of
Supreme Court Justices for affirming appealed judgment is Rules of
Court, not the Constitution.—Be that as it may, the question
confronting the Court is: what is the applicable law in a case like
this where there is an inconclusive or indecisive vote of seven to
five for affirming the appealed judgment? To begin with, the
applicable law is not the Constitutional provision which requires a
qualified vote of at least ten members of this Court to declare
unconstitutional a law, treaty or executive agreement. In such
constitutional cases, failure to reach the qualified vote of ten
members results in a declaration that the constitutionality of the
questioned law is deemed upheld. Concededly, the present action
is not one to declare unconstitutional the question provision
banning ecclesiastics from municipal office. The action was filed by
petitioner precisely invoking the law’s ban in order to disqualify
respondent. The lower court merely sided with the Comelec’s ruling
in an earlier case filed by petitioner for the same purpose of
disqualifying respondent, and dismissed the case below upholding
respondent’s defense that the law had been repealed by the 1971
Election Code. This was the sole issue both before the lower court
and this Court. As shown hereinabove, the sole issue joined by the
Page 103 of 267
parties in the court below and in this Court on appeal was whether
or hot the questioned provision banning ecclesiastics from
municipal office has been repealed or not by the 1971 Election
Code. Concededly, a minimum of eight votes as required by the
Constitution for the pronouncement of a judgment is needed to
declare that the same has been repealed under this sole issue, or
superseded or rendered inoperative by virtue of the 1935
Constitutional provisions guaranteeing freedom of religion and
prohibiting religious tests for the exercise of civil and political rights
under the supplementary issues of repeal by force of the
Constitution raised motu proprio in the main opinion. The
applicable law, then, in non-constitutional cases such as that at bar
is found in Rule 56, section 11 of the Rules of Court, which was
designed specifically to cover such cases where the necessary
majority of a minimum eight votes. “For the pronouncement of a
judgment” cannot be had and provides that the appealed judgment
shall stand affirmed.
417
VOL. 86, NOVEMBER 20, 1978 417
Pamil vs. Teleron
Barredo, J., concurring:
Quo Warranto; Constitutional Law; Administrative
Law; Election Law; Ecclesiastics are incapacitated, not only
ineligible, from holding public office; No inconsistency between
Sec. 23 of Election Code and Sec. 2175 of Revised Administrative
Code.—I agree with the Chief Justice and Justice Makasiar that the
trial court’s ruling, following that of the Commission on Elections, to
the effect that Section 2175 of the Revised Administrative Code has
been repealed by Section 23 of the Election Code of 1971 is not
legally correct. More than merely declaring ecclesiastics ineligible
to a municipal office, the Administrative Code provisions enjoins in
the most unequivocal terms their incapacity to hold such office
whether by election or appointment. Indeed, the word “ineligible”
in the title of the section is inappropriate. If said Election Code
provision has any incompatibility with the above-mentioned
Administrative Code provisions, it is only by implication and only
insofar as members of the Armed Forces of the Philippines are
concerned, in the sense that said army men are now allowed to run
for election to municipal offices provided that they shall be deemed
to automatically cease in their army positions upon the filing of
CONSTI 2 CASES Free Exercise of Religion
their respective certificates of candidacy. Section 23 does not
define who are qualified to be candidates for public elective
positions, nor who are disqualified. It merely states what is the
effect of the filing of certificates of candidacy by those referred to
therein, which do not include ecclesiastics. Thus, the inconsistency
contemplated in Section 249 of the Code as productive of repealing
effect does not exist in the case of Section 23 thereof vis-a-vis
Section 2175 of the Revised Administrative Code.
Same; Same; Same; Same; No repugnancy between Sec. 2175
and freedom of religion provisions in 1935 and 1973 Constitutions;
Scope of phrase “no-religious test” in Constitution.—Accordingly,
the only way respondent Fr. Gonzaga can legally hold to the
mayorship he is occupying is for Section 2175 to be declared as
violative of the constitutional injunction in Section 1 (7) of the 1935
Constitution of the Philippines which was in force in 1971 that “No
religious test shall be required for the exercise of civil or political
rights” as contended by him. On this score, it is my considered view
that there is no repugnancy at all between Section 2175, on the
one hand, and the freedom of religion provision of the Old
Constitution, which, incidentally, is reproduced textually in the New
Charter, and the principle of separation of church and state, on the
other. The “no religious test” provision is founded on the long
cherished principle of separation of church and state which the
framers of our 1973 Constitution opted to in-
418
4 SUPREME COURT REPORTS ANNOTATED
18
Pamil vs. Teleron
clude as an express provision in the fundamental law by
ordaining that such separation “shall be inviolable” (Art. XV, Sec.
15), not as a redundancy but in order to comprehend situations
which may not be covered by the provisions on religious freedom in
the Bill of Rights. (Art. IV, Sec. 8.) It simply means that no public
office may be denied to any person by reason of his religious belief,
including his non-belief. Whether he believes in God or not, or,
believing in God, he expresses and manifests his belief in one way
or another, does not disqualify him. But when he becomes a
religious or an ecclesiastic, he becomes one who does not merely
belong to his church, congregation or denomination or one who
entertains his own religious belief; he becomes the official minister
of his church with distinct duties and responsibilities which may not
always be compatible with the posture of absolute indifference and
Page 104 of 267
impartiality to all religious beliefs which the government and all its
officials must maintain at all times, on all occasions and in every
aspect of human life and individual endeavor precisely because of
the separation of church and state and the full enjoyment of
religious freedom by everyone.
Makasiar, J., concurring:
Quo Warranto; Administrative Law; Election Law; No
compatibility exists between Sec. 23 of the Election Code and Sec.
2175 of Rev. Administrative Code banning ecclesiastics from
holding elective public office; Scope of two provisions.—It is patent
that the two legal provisions are compatible with each other.
Section 24 of the Election Code does not enumerate the persons
disqualified for a public elective or appointive office; but merely
prescribes the effect of filing a certificate of candidacy by an
appointive public officer or employee or by active members of the
Armed Forces of the Philippines or by an officer or employee in a
government-owned or controlled corporation Section 23 states that
upon the filing of his certificate of candidacy, such appointive
officer or employee or member of the Armed Forces shall “ipso
facto cease in his office or position x x.” The obvious purpose is to
prevent such candidate from taking advantage of his position to the
prejudice of the opposing candidates not similarly situated. On the
other hand, Section 2175 of the Revised Administrative Code
provides for an absolute disqualification and enumerates the
persons who are so absolutely disqualified to run for or be
appointed to a municipal office which enumeration includes not
only public officers but also private individuals like contractors and
ecclesiastics. Section 23 of the Election Code of 1971 applies only
to public officers and employees, including those in government-
owned
419
VOL. 86, NOVEMBER 20, 1978 41
9
Pamil vs. Teleron
or controlled corporations and members of the Armed Forces,
but not to private citizens, like contractors or ecclesiastics. Hence,
a contractor who is not employed in any government office or
government-owned or controlled corporation or in the Armed
Forces, need not vacate his private employment, if any, upon his
filing a certificate of candidacy. Likewise, if he were qualified in the
CONSTI 2 CASES Free Exercise of Religion
absence of the absolute disqualifications in Section 2175 of the
Revised Administrative Code, a priest or minister is not ipso facto
divested of his position in his church the moment he files his
certificate of candidacy.
Same; Same; Same; Same; To allow ecclesiastics to hold
elective public office considered erosion of principle of separation
of church and state.—To allow an ecclesiastic to head the executive
department of a municipality is to permit the erosion of the
principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which
the constitutional provision seeks to enforce and protect. For it
requires no in-depth analysis to realize the disastrous consequence
of the contrary situation—allowing ecclesiastics to run for a local
position. Can there be an assurance that the decisions of such
ecclesiastic, in the exercise of his power and authority vested in
him by reason of his local position will be clothed with impartiality?
Or is not the probability that his decision as well as discretion be
tainted with his religious prejudice, very strong? For considering the
objectives of his priestly vocation, is it not incumbent upon him to
color all his actuations with the teachings and doctrines of his sect
or denomination? Is there an assurance that in the appointment to
appointive municipal positions the religious affiliations of the
competing applicants will not play the decisive factor? If the
ecclesiastic elected to a municipal office of mayor is a Catholic,
would the chances of an heretic, an Aglipayan, a Protestant or an
Iglesia ni Kristo adherent be as equal as those of a Catholic?
Civil Law; Marriages; Annulment of civil marriages by Catholic
Church; Exercise by Church in promulgating rules governing
marriages and defining grounds for annulment and establishing
ecclesiastical tribunals to annul marriages is void ab initio and a
usurpation of State’s sovereign power.—There is need of
emphasizing that marriage is a social institution—not just a mere
contractual relation—whose sanctity is recognized and protected by
the State, and is not a matter within the exclusive jurisdiction of the
Church. The solidarity of the Filipino family and sanctity of the
marital bond
420
4 SUPREME COURT REPORTS ANNOTATED
20
Pamil vs. Teleron
are the primary concern of the State, perhaps even more than
they are of the Catholic church, as the family unit constitutes the
Page 105 of 267
strength of the nation. The Church tribunals in annulling marriages,
is usurping the power of the courts established by the State. Even
the authority of the priests and ministers to solemnize marriages is
granted by the State law, without which no priest or minister of any
religion or church or sect or denomination can legally solemnize
marriages. If the right of the Catholic church to annul marriages or
to declare marital unions as void ab initio under its rules were
conceded, then there is no reason to deny the same right to the
ministers of the Protestant church and other religious sect or
denomination. The annulment by the Church does not render the
spouses exempt from possible prosecution for bigamy, adultery or
concubinage, should they contract a second marriage or have
carnal knowledge of, or cohabit with persons other than their
legitimate spouses of the first marriage which remains lawful in the
eyes of the laws validly promulgated by the State. If the Church
tribunal believes that the marital union is a nullity from the very
beginning under the civil laws, then the church should advise the
parties to go to the civil courts. But the Church should not arrogate
unto itself State authority and the jurisdiction of the courts created
by the State. To stress, in our country, there is only one sovereign,
the Republic of the Philippines, and not the Roman Catholic Church
or any other church. Only the sovereign, the Republic of the
Philippines, can validly promulgate laws to govern all the
inhabitants of the Philippines, whether citizens or aliens, including
laws concerning marriages, persons and family relations. And only
the courts established by the sovereign, the Republic of the
Philippines, can apply, interpret and enforce such laws. The
exercise by the Catholic church in promulgating rules governing
marriages and defining the grounds for annulment of the same, as
well as establishing ecclesiastical tribunals to annul marriages or to
declare marriages void ab initio, is a usurpation of the sovereign
power of the State.
Antonio, J., concurring:
Quo Warranto; Constitutional Law; Administrative
Law; Election Law; No religious test provision; 1973 Constitution
not inconsistent with Administrative Code on no-requirement for
religious test for exercise of civil or political rights; Inclusion of
ecclesiastics as ineligible to hold municipal office in Sec. 2175 of
the Adm. Code not violative of the Constitution.—I likewise take
exception to the view expressed in the majority opinion that the
CONSTI 2 CASES Free Exercise of Religion
supremacy of the Constitution supplies the answer to the issue of
the eligibility of a
421
VOL. 86, NOVEMBER 20, 1978 42
1
Pamil vs. Teleron
member of the clergy to an elective municipal position. The
application of Article XVI, Section 2 of the 1935 Constitution, with
its counterpart in Article XVII, Section 7 of the 1973 Constitution,
concerning laws inconsistent with the Constitution, is inaccurate.
Article 2175 of the Revised Administrative Code, in including
ecclesiastics within the ambit of the prohibition, is not inconsistent
with the explicit provision of the 1935 Constitution that “(n)o
religious test shall be required for the exercise of civil or political
rights”. The absence of inconsistency may be seen from the fact
that the prohibition against “religious tests” was not original to the
1935 Constitution. It was expressly provided in the Jones Law that
“no religious test shall be required for the exercise of civil or
political rights” (Section 3). At the time of the passage of the Jones
Law, the original Administrative Code (Act 2657) was already in
force, having been enacted in February 1916. In order to harmonize
the Code with the Jones Law, the Code was amended in October
1916, with the passage of Act 2711. The revision was made
expressly “for the purpose of adapting it to the Jones Law and the
Reorganization Act. Notwithstanding such stated purpose of the
amendment, the prohibition against the election of ecclesiastics to
municipal offices, originally embodied in Section 2121 of Act 2657,
was retained. This is a clear indication that it is not repugnant to
the “no religious test” doctrine which, as aforecited, was already
expressly provided for in the Jones Law. Considering that Section
2175 of the Revised Administrative Code, which “cut off forever
every pretense of any alliance between church and state”, is in
conformity with Section 15 of Article XV of the Constitution, which
ordains that “the separation of church and state shall be
inviolable”, it cannot, therefore, be said that such statute, in
including ecclesiastics among those ineligible to municipal office, is
violative of the fundamental law.
Muñoz Palma, J., dissenting:
Quo Warranto; Constitutional Law; Administrative
Law; Election Law; Election of ecclesiastics to municipal office not
Page 106 of 267
violative of separation of church and state; Entry of ecclesiastics in
local government office not necessarily involvement of political in
religion.—But then it is strongly argued that the election or
appointment of priests or even nuns to municipal office will be
violative of the separation of church and state. I strongly believe
that it is not so. As an eminent Constitutionalist puts it: what is
sought to be achieved under the principle of separation of church
and state is that political process is insulated from religion and
religion from politics; in other words,
422
4 SUPREME COURT REPORTS ANNOTATED
22
Pamil vs. Teleron
government neutrality in religious matters. Thus, Our
Constitution provides that no law shall be made respecting an
establishment of religion. Having an ecclesiastic or priest in a local
government office such as that of the municipal mayor will not
necessarily means the involvement of politics in religion or vice-
versa. Of course the religion of the man cannot be dissociated from
his personality; in truth, his religion influences his conduct, his
moral values, the fairness of his judgment, his outlook on social
problems, etc. As stated in the Hysong decision, inevitably in
popular government by the majority, public institutions will be
tinged more or less by the religious proclivities of the majority, but
in all cases where a discretion is reposed by the law, it is to be
assumed in the absence of evidence to the contrary, that the public
officer will perform his duty in the manner the law requires. I may
add that there are legal remedies available to the citizenry against
official action violative of any existing law or constitutional
mandate.
Aquino, J., concurring:
Quo Warranto; Administrative Law; Election
Law; “Ecclesiastics,” Scope of.—The term “ecclesiastics” refers to
priests, clergymen or persons in holy orders or consecrated to the
service of the church. Broadly speaking, it may include nuns.
Same; Same; Same; Constitutional Law; Disqualification of
ecclesiastics from holding municipal office; Disqualification
provision and “no-religious test” provision not incompatible.—It is
argued that the disqualification of priest was abrogated by section
1(7), Article III of the 1935 Constitution which provides that “no
CONSTI 2 CASES Free Exercise of Religion
religious tests shall be required for the exercise of civil or political
rights”. It is assumed that the disqualification is “inconsistent with
the religious freedom guaranteed by the Constitution”. I disagree
with that conclusion. There is no incongruency between the
disqualification provision and the “no religious test” provision. The
two provisions can stand together. The disqualification provision
does not impair the free exercise and enjoyment of religious
profession and worship. It has nothing to do with religious freedom.
The disqualification of priests from holding a municipal office is an
application of the mandate for the separation of church and state.
Same; Same; Same; Same; Same; Priest who is disqualified
from becoming municipal employee not denied religious freedom
or political rights; Scope of “no religious test” provision; History
and
423
VOL. 86, NOVEMBER 20, 1978 42
3
Pamil vs. Teleron
background of “no religious test.”—A priest, who is disqualified
from becoming a municipal employee, is not denied any part of his
religious freedom or his political rights. A priest may have the civil
right to embrace the religious vocation but he does not have the
constitutional right to be a municipal employee. He can choose
between being a municipal employee and being a priest. He cannot
be both. That arrangement is good for himself and his church and
for society. On the other hand, the statutory provision that only
laymen can hold municipal offices or that clergymen are
disqualified to become municipal officials is compatible with the “no
religious test” provision of the 1935 Constitution which is also
found in section 8, article IV of the 1973 Constitution and in section
3 of the Jones Law. They are compatible because they refer to
different things. The “no religious test” provision means that a
person or citizen may exercise a civil right (like the right to acquire
property) or a political right (the right to vote or hold office, for
instance) without being required to belong to a certain church or to
hold particular religious beliefs. x x x The historical background of
the “no religious test” provision clearly shows that it is consistent
with the disqualification of all clergymen from holding public office
and that it cannot be invoked to invalidate the statutory provision
on disqualification. The “no religious test” provision is a reaction
against the Test Acts which once upon a time were enforced in
England, Scotland and Ireland. The Test Acts provided that only
Page 107 of 267
those who professed the established religion were eligible for public
office. Those laws discriminated against recusants or Roman
Catholics and nonconformists.
PETITION for certiorari to review the judgment of the Court of First
Instance of Bohol. Teleron, J.
The facts are stated in the opinion of the Court.
Urbano H. Lagunay for petitioner.
Cristeto O. Cimagala for respondents.
FERNANDO, J.:
The novel question raised in this certiorari proceeding concerns the
eligibility of an ecclesiastic to an elective municipal position. Private
respondent, Father Margarito R. Gonzaga, was, in 1971, elected to
the position of municipal mayor of Alburquerque, Bohol. 1Therefore,
he was duly proclaimed. A
______________
1
Petition, par. 1.
424
424 SUPREME COURT REPORTS ANNOTATED
Pamil vs. Teleron
suit for quo warranto was then filed by petitioner, himself an
aspirant for the office, for his disqualification 2 based on this
Administrative Code provision: “In no case shall there be elected or
appointed to a municipal office ecclesiastics, soldiers in active
service, persons receiving salaries or compensation from provincial
or national funds, or contractors for public works of the
municipality.”3 The suit did not prosper, respondent Judge
sustaining the right of Father Gonzaga to the office of municipal
mayor. He ruled that such statutory ineligibility was impliedly
repealed by the Election Code of 1971. The matter was then
elevated to this Tribunal by petitioner. It is his contention that there
was no such implied repeal, that it is still in full force and effect.
Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy
and protracted deliberation, the Court is divided on the issue.
Seven members of the Court are of the view that the judgment
should be affirmed as the challenged provision is no longer
CONSTI 2 CASES Free Exercise of Religion
operative either because it was superseded by the 1935
Constitution or repealed. Outside of the writer of this opinion, six
other Justices are of this mind. They are Justices Teehankee, Muñoz
Palma, Concepcion Jr., Santos, Fernandez, and Guerrero. For them,
the overriding principle of the supremacy of the Constitution or, at
the very least, the repeal of such provision bars a reversal. 4 The
remaining five members of this Court, Chief Justice Castro, Justices
Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold
the position that such a prohibition against an ecclesiastic running
for elective office is not tainted with any constitutional infirmity.
The vote is thus indecisive. While five members of the Court
constitute a minority, the vote of the remaining seven does not
_________________
2
Ibid, par. 4.
3
Section 2175 of the Revised Administrative Code (1917).
4
The doctrine of repeal was stressed in the separate opinion of
Justice Teehankee, although he was likewise in agreement with the
view of the other six Justices that such a ban on ecclesiastics, is not
in conformity with the Constitution, a question which, according to
him, however, was not squarely raised.
425
VOL. 86, NOVEMBER 20, 1978 425
Pamil vs. Teleron
suffice to render the challenged provision ineffective. Section 2175
of the Revised Administrative Code, as far as ecclesiastics are
concerned, must be accorded respect. The presumption of validity
calls for its application. Under the circumstances, certiorari lies.
That is the conclusion arrived at by the writer of this opinion, joined
by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They
have no choice then but to vote for the reversal of the lower court
decision and declare ineligible respondent Father Margarito R.
Gonzaga for the office of municipal mayor. With the aforesaid five
other members, led by the Chief Justice, entertaining no doubt as
to his lack of eligibility, this petition for certiorari must be granted.
Except for the dispositive part announcing the judgment of the
Court, the remainder of this opinion sets forth the reasons why
there are constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the
1935 Constitution, as it is now under the present Charter, it is
Page 108 of 267
explicitly declared: “No religious test shall be required for the
exercise of civil or political rights.” 5 The principle of the paramount
character of the fundamental law thus comes into play. There are
previous rulings to that effect.6 The ban imposed by the
Administrative Code cannot survive. So the writer of this opinion
would hold.
2. This is to conform to this provision of the 1935 Charter: “All
laws of the Philippine Islands shall continue in force until
______________
5
Art. III, Sec. 1, par. 7 of the 1935 Constitution. The present
provision reads as follows: “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.” Art. IV, Sec. 8 of the present Constitution is
worded similarly.
6
Cf. People v. Linsañgan, 62 Phil. 646 (1935); De los Santos v.
Mallare, 87 Phil. 289 (1950); and Martinez v. Morfe, L-34022, March
24, 1972, 44 SCRA 22.
426
426 SUPREME COURT REPORTS ANNOTATED
Pamil vs. Teleron
the inauguration of the Commonwealth of the Philippines;
thereafter, such laws shall remain operative, unless inconsistent
with this Constitution, until amended, altered, modified, or repealed
by the Congress of the Philippines, and all references in such laws
to the government or officials of the Philippines shall be construed,
in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.” 7 It was first applied
in People v. Linsañgan,8 decided in December, 1935, barely a
month after that Constitution took effect. This Court held that
Section 2718 of the Revised Administrative Code that would allow
the prosecution of a person who remains delinquent in the payment
of cedula tax,9 was no longer in force. As stated by the then Justice,
later Chief Justice, Abad Santos, after setting forth that the
Constitution prohibits the imprisonment for debt or nonpayment of
poll tax:10 “It seems too clear to require demonstration that section
2718 of the Revised Administrative Code is inconsistent with
section 1, clause 12, of Article III of the Constitution in that, while
CONSTI 2 CASES Free Exercise of Religion
the former authorizes imprisonment for non-payment of the poll or
cedula tax, the latter forbids it. It follows that upon the
inauguration of the Government of the Commonwealth,
______________
7
Art. XVI, Section 2 of the Constitution. A similar provision is
now found in Article XVII, Section 7, It reads: “All existing laws not
inconsistent with this Constitution shall remain operative until
amended, modified, or repealed by the National Assembly.”
8
62 Phil. 646.
9
Article 2718 of the Revised Administrative Code reads: “A
person liable to the cedula tax who remains delinquent in the
payment of the same for fifteen days after June first of each year
and who upon demand of the provincial treasurer fails thereafter to
pay such tax as required by law shall be deemed to be guilty of a
misdemeanor; and the provincial treasurer may, in his discretion,
cause the delinquent to be prosecuted before the justice of the
peace of the municipality in which the delinquent shall be found,
and upon conviction the person so delinquent shall be sentenced to
imprisonment of five days for each unpaid cedula.”
10
According to Art. III, Sec. 1, clause 12 of the Constitution: “No
person shall be imprisoned for debt or non-payment of a poll tax.”
There is a reiteration of this provision in the present Constitution.
CF. Art. IV, Section 13.
427
VOL. 86, NOVEMBER 20, 1978 427
Pamil vs. Teleron
said section 2718 of the Revised Administrative Code became
inoperative, and no judgment of conviction can be based
thereon.”11
De los Santos v. Mallare12 came next. The President, under the
Revised Administrative Code, could remove at pleasure any of the
appointive officials under the Charter of the City of Baguio. 13Relying
on such a provision, the then President Quirino removed petitioner
De los Santos, who was appointed City Engineer of Baguio on July
16, 1946, and chose in his place respondent Gil R. Mallare. Why
such a power could not pass the test of validity under the 1935
Constitution was pointed out by Justice Tuason thus: “So, unlike
legislation that is passed in defiance of the Constitution, assertive
and menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity
Page 109 of 267
by the court to put it out of the way. To all intents and purposes, it
is non-existent, outlawed and eliminated from the statute book by
the Constitution itself by express mandate before the petitioner
was appointed.”14
Martinez v. Morfe,15 a 1972 decision, is likewise in point. In the
light of the cited provision of the 1935 Constitution, as
authoritatively construed, Article 145 of the Revised Penal Code
was found to be inoperative. As therein provided, the penalty of
prision correccional is imposed on any public officer or employee
who, while the Congress was in regular or special session, would
arrest or search a member thereof, except in
________________
11
62 Phil. 646, 650.
12
87 Phil. 289 (1950).
13
Section 2445 of the Revised Administrative Code, insofar as
pertinent, reads as follows: “The President of the Philippines shall
appoint, with the consent of the Commission on Appointments of
the Congress of the Philippines, the mayor, the vice-mayor, and
one of the other members of the city council, the members of the
advisory council, the city health officer, the city engineer, the chief
of police, the city treasurer, the city assessor, the city attorney, and
the assistant city attorney, and he may remove at pleasure any of
the said appointive officers. * * *.”
14
87 Phil. 289, 299.
15
L-34022, March 24, 1972, 44 SCRA 22.
428
428 SUPREME COURT REPORTS ANNOTATED
Pamil vs. Teleron
case he had committed a crime punishable by a penalty higher
than prision mayor. This Court ruled that the Revised Penal Code
extended unduly the legislative privilege of freedom from arrest as
ordained in the Constitution. 16 Such a provision then was contrary
to and in defiance of the clear expression of the will of the
Constitutional Convention of 1934 that such immunity was never
intended to exempt members of a legislative body from an arrest
for a criminal offense, the phrase treason, felony and breach of the
peace being all-inclusive. Reference was likewise made to the
prevailing American doctrine to that effect as enunciated by
Williamson v. United States.17
CONSTI 2 CASES Free Exercise of Religion
3. It would be an unjustified departure from a settled principle of
the applicable construction of the provision on what laws remain
operative after 1935 if the plea of petitioner in this case were to be
heeded. The challenged Administrative Code provision, certainly
insofar as it declares ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. To so exclude them is to
impose a religious test. Torcaso v. Watkins, 18 an American Supreme
Court decision, has persuasive weight. What was there involved
was the validity of a provision in the Maryland Constitution
prescribing that “no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other
than a declaration of belief in the existence of God * * *.” Such a
constitutional requirement was assailed as contrary to the First
Amendment of the United States Constitution by an ap-
_______________
16
Art. VI, Sec. 15 of the 1935 Constitution reads: “The Senators
and Members of the House of Representatives shall in all cases
except treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the sessions of the Congress, and
in going to and returning from the same; and for any speech or
debate therein, they shall not be questioned in any other place.”
The Morfe decision has been modified by the present Constitution,
which in its Article VIII, Sec. 9, extends the privilege of freedom
from arrest to members of the National Assembly if the offense
imputed to him is punishable by not more than six years
imprisonment.
17
207 US 425 (1908).
18
367 US 488 (1961).
429
VOL. 86, NOVEMBER 20, 1978 429
Pamil vs. Teleron
pointee to the office of notary public in Maryland, who was refused
a commission as he would not declare a belief in God. He failed in
the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could
not have been otherwise. As emphatically declared by Justice Black:
“this Maryland religious test for public office unconstitutionally
invades the appellant’s freedom of belief and religion and therefore
cannot be enforced against him.”19
Page 110 of 267
 The analogy appears to be obvious. In that case, it was lack of
belief in God that was a disqualification. Here being an ecclesiastic
and therefore professing a religious faith suffices to disqualify for a
public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an
express constitutional mandate. It is not a valid argument against
this conclusion to assert that under the Philippine Autonomy Act of
1916, there was such a prohibition against a religious test, and yet
such a ban on holding a municipal position had not been nullified. It
suffices to answer that no question was raised as to its validity.
In Vilar v. Paraiso,20 decided under the 1935 Constitution, it was
assumed that there was no conflict with the fundamental law.
4. This is the first case then where this Court has to face
squarely such an issue. This excerpt from the opinion of Justice
Moreland in the leading case of McGirr v. Hamilton,21 a 1915
decision, has a force unimpaired by the passage of time: “Relative
to the theory that Act No. 1627 has stood so long and been silently
acquiesced in for so great a length of time that it should not be
disturbed, it may be said that the fact that certain individuals have,
by ignorance or neglect, failed to claim their fundamental rights,
furnishes no reason why another individual, alert to his rights and
their proper enforcement, should be prevented from asserting and
sustaining those rights. The fact that Smith and Jones have failed to
demand their constitutional rights furnishes no basis for the
_______________
19
Ibid, 496.
20
96 Phil. 659 (1955).
21
30 Phil. 563.
430
430 SUPREME COURT REPORTS ANNOTATED
Pamil vs. Teleron
refusal to consider and uphold the constitutional rights of Richard
Roe. In the case of Sadler v. Langham (34 Ala. 311), this same
question was under consideration and the court in resolving it said:
‘It may be urged, that these statutes have stood, and been silently
acquiesced in for so great a length of time, they should not now be
disturbed, We are sensible of the force of this argument. It will be
observed, however, that in Tennessee, the decision which declared
the private road law unconstitutional was pronounced forty years
after the enactment of the statute; and in New York, after seventy
CONSTI 2 CASES Free Exercise of Religion
years had elapsed. It is, perhaps, never too late to re-establish
constitutional rights, the observance of which had been silently
neglected.’ ”22 To support such a conclusion, no less than the great
Chief Justice Marshall, speaking for this Court in United States v.
More, in disposing of a contention by one of the parties as to
appellate jurisdiction having been previously exercised and
therefore beyond dispute was likewise relied upon. Thus: “No
question was made in that case as to the jurisdiction. It passed sub
silentio, and the court does not consider itself bound by that
case.”23 So it should be in this litigation. As set forth at the outset, it
is not even necessary to annul the challenged Administrative Code
provision. It is merely declared inoperative by virtue of the
mandate of the 1935 Constitution, similarly found in the present
Charter.
5. Nonetheless, the above view failed to obtain the necessary
eight votes needed to give it binding force. The attack on the
continuing effectivity of Section 2175 having failed, it must be, as
noted at the outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The judgment
a quo is reversed and set aside. Respondent Gonzaga is hereby
ordered immediately to vacate the mayoralty of
________________
22
Ibid, 571.
23
3 Cranch 159, 172 (1805). Justice Moreland also cited United
States v. Sanges, 144 US 310 (1892) and Cross v. Burke, 146 US
82 (1892).
431
VOL. 86, NOVEMBER 20, 1978 431
Pamil vs. Teleron
the municipality of Albuquerque, Bohol, there being a failure to
elect. No pronouncement as to costs.
Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.
Castro, C.J., concurs in the result in a separate opinion.
Teehankee, J., dissents in a separate opinion.
Barredo, J., concurs in the judgment in a separate opinion.
Makasiar, J., concurs in the result in a separate opinion.
Antonio J., concurs in the result in a separate opinion.
Muñoz Palma, J., dissents in a separate opinion.
Aquino, J., concurs in the result in a separate opinion.
Page 111 of 267
 ——o0o——
U.S. Supreme Court
McDaniel v. Paty, 435 U.S. 618 (1978)
McDaniel v. Paty
No. 76-1427
Argued December 5, 1977
Decided April 19, 1978
435 U.S. 618
APPEAL FROM THE SUPREME COURT OF TENNESSEE
Syllabus
Appellee Paty, a candidate for delegate to a Tennessee
constitutional convention, sued in the State Chancery Court for a
declaratory judgment that appellant, an opponent who was a
Baptist minister, was disqualified from serving as delegate by a
Tennessee statutory provision establishing the qualifications of
constitutional convention delegates to be the same as those for
membership in the State House of Representatives, thus invoking a
Tennessee constitutional provision barring "[m]inister[s] of the
Gospel, or priest[s] of any denomination whatever." That court held
that the statutory provision violated the First and Fourteenth
Amendments. The Tennessee Supreme Court reversed, holding that
the clergy disqualification imposed no burden on "religious belief,"
and restricted
"religious action . . . [only] in the law making process of
government -- where religious action is absolutely prohibited by the
establishment clause. . . ."
CONSTI 2 CASES Free Exercise of Religion
Held: The judgment is reversed, and the case is remanded. Pp. 435
U. S. 625-629; 435 U. S. 629-642; 435 U. S. 642-643; 435 U. S. 643-
646.
547 S.W.2d 897, reversed and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE POWELL, MR. JUSTICE
REHNQUIST, and MR. JUSTICE STEVENS, concluded:
1. The Tennessee disqualification is directed primarily not at
religious belief, but at the status, acts, and conduct of the clergy.
Therefore, the Free Exercise Clause's absolute prohibition against
infringements on the "freedom to believe" is inapposite
here. Torcaso v. Watkins, 367 U. S. 488 (which invalidated a state
requirement that an appointee to public office declare his belief in
the existence of God), distinguished. Pp. 435 U. S. 626-627.
2. Nevertheless, the challenged provision violates appellant's First
Amendment right to the free exercise of his religion made
applicable to the States by the Fourteenth Amendment, because it
conditions his right to the free exercise of his religion on the
surrender of his right to seek office. Sherbert v. Verner, 374 U. S.
398, 374 U. S. 406. Though justification is asserted under the
Establishment Clause for the statutory restriction on the ground
that, if elected to public office members of the clergy will
necessarily promote the interests of one sect or thwart those of
another contrary to the anti-establishment principle of neutrality,
Tennessee has failed to demonstrate that its views of the dangers
of
Page 435 U. S. 619
clergy participation in the political process have not lost whatever
validity they may once have enjoyed. Accordingly, there is no need
to inquire whether the State's legislative goal is permissible.
Pp. 435 U. S. 626; 435 U. S. 627-629.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL,
concluded:
Page 112 of 267
1. The Free Exercise Clause is violated by the challenged provision.
Pp. 435 U. S. 630-635.
(a) Freedom of belief protected by that Clause embraces freedom
to profess or practice that belief, even including doing so for a
livelihood. The Tennessee disqualification establishes as a condition
of office the willingness to eschew certain protected religious
practices. The provision therefore establishes a religious
classification governing eligibility for office that is absolutely
prohibited. Torcaso v. Watkins, supra. Pp. 435 U. S. 631-633.
(b) The fact that the law does not directly prohibit religious
exercise, but merely conditions eligibility for office on its
abandonment, does not alter the protection afforded by the Free
Exercise Clause. "Governmental imposition of such a choice puts
the same kind of burden upon the free exercise of religion as would
a fine . . . ," Sherbert v. Verner, supra at 374 U. S. 404, and
Tennessee's disqualification provision therefore imposed an
unconstitutional penalty on appellant's free exercise. Moreover,
"[t]he fact . . . that a person is not compelled to hold public office
cannot possibly be an excuse for barring him from office by state-
imposed criteria forbidden by the Constitution."
Torcaso v. Watkins, supra, at 367 U. S. 495-496. Pp. 435 U. S. 633-
634.
2. The Tennessee disqualification also violates the Establishment
Clause. Government generally may not use religion as a basis of
classification for the imposition of duties, penalties, privileges, or
benefits. Specifically, government may not fence out from political
participation people such as ministers whom it regards as
overinvolved in religion. The disqualification provision employed by
Tennessee here establishes a religious classification that has the
primary effect of inhibiting religion. Pp. 435 U. S. 636-642.
MR. JUSTICE STEWART concluded that Torcaso v. Watkins,
supra, controls this case. Except for the fact that Tennessee bases
its disqualification, not on a person's statement of belief, but on his
decision to pursue a religious vocation as directed by his belief, the
situation in Torcaso is indistinguishable from the one here. Pp. 435
U. S. 642-643.
CONSTI 2 CASES Free Exercise of Religion
MR. JUSTICE WHITE concluded that the Tennessee disqualification,
while not interfering with appellant's right to exercise his religion as
he desires, denies him equal protection. Though that
disqualification is based on the State's asserted interest in
maintaining the required separation
Page 435 U. S. 620
of church and state, it is not reasonably necessary for that
objective, which all States except Tennessee have been able to
realize without burdening ministers' rights to candidacy. In addition,
the statute is both underinclusive and overinclusive. Pp. 435 U. S.
643-646.
BURGER, C.J., announced the Court's judgment, and delivered an
opinion, in which POWELL, REHNQUIST, and STEVENS, JJ., joined.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined, post, p. 435 U. S. 629. STEWART,
J., post, p. 435 U. S. 642, and WHITE, J., post, p. 435 U. S. 643, filed
opinions concurring in the judgment. BLACKMUN, J., took no part in
the consideration or decision of the case.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court
and delivered an opinion in which MR. JUSTICE POWELL, MR.
JUSTICE REHNQUIST, and MR. JUSTICE STEVENS joined.
The question presented by this appeal is whether a Tennessee
statute barring "Minister[s] of the Gospel, or priest[s] of any
denomination whatever" from serving as delegates to the State's
limited constitutional convention deprived appellant McDaniel, an
ordained minister, of the right to the free exercise of religion
guaranteed by the First Amendment. and made applicable to the
States by the Fourteenth Amendment. The First Amendment forbids
all laws "prohibiting the free exercise" of religion.
Page 435 U. S. 621
I
In its first Constitution, in 1796, Tennessee disqualified ministers
from serving as legislators. [Footnote 1] That disqualifying provision
Page 113 of 267
has continued unchanged since its adoption; it is now Art. 9, § 1, of
the State Constitution. The state legislature applied this provision
to candidates for delegate to the State's 1977 limited constitutional
convention when it enacted ch. 848, § 4, of 1976 Tenn.Pub.Acts:
"Any citizen of the state who can qualify for membership in the
House of Representatives of the General Assembly may become a
candidate for delegate to the convention. . . ."
McDaniel, an ordained minister of a Baptist Church in Chattanooga,
Tenn., filed as a candidate for delegate to the constitutional
convention. An opposing candidate, appellee Selma Cash Paty,
sued in the Chancery Court for a declaratory judgment that
McDaniel was disqualified from serving as a delegate and for a
judgment striking his name from the ballot. Chancellor Franks of
the Chancery Court held that § 4 of ch. 848 violated the First and
Fourteenth Amendments to the Federal Constitution, and declared
McDaniel eligible for the office of delegate. Accordingly, McDaniel's
name remained on the ballot, and, in the ensuing election, he was
elected by a vote almost equal to that of three opposing
candidates.
After the election, the Tennessee Supreme Court reversed the
Chancery Court, holding that the disqualification of clergy imposed
no burden upon "religious belief" and restricted
"religious action . . . [only] in the lawmaking process of government
-- where religious action is absolutely prohibited by the
establishment clause. . . ."
547 S.W.2d 897, 903 (1977).
Page 435 U. S. 622
The state interests in preventing the establishment of religion and
in avoiding the divisiveness and tendency to channel political
activity along religious lines, resulting from clergy participation in
political affairs, were deemed by that court sufficiently weighty to
justify the disqualification, notwithstanding the guarantee of the
Free Exercise Clause.
CONSTI 2 CASES Free Exercise of Religion
We noted probable jurisdiction. [Footnote 2] 432 U.S. 905 (1977).
II
A
The disqualification of ministers from legislative office was a
practice carried from England by seven of the original States;
[Footnote 3] later, six new States similarly excluded clergymen
from some political offices. 1 A. Stokes, Church and State in the
United States 622 (1950) (hereafter Stokes). In England, the
practice of excluding clergy from the House of Commons was
justified on a variety of grounds: to prevent dual officeholding, that
is, membership by a minister in both Parliament and Convocation;
to insure that the priest or deacon devoted himself to his "sacred
calling," rather than to "such mundane activities as were
appropriate to a member of the House of Commons"; and to
prevent ministers, who, after 1533, were subject to the Crown's
powers over the benefices of the clergy, from using membership in
Commons to diminish its independence by increasing the influence
of the King and the nobility. In re MacManaway, [1951] A.C. 161,
164, 170-171.
The purpose of the several States in providing for disqualification
was primarily to assure the success of a new political experiment,
the separation of church and state. Stokes 622.
Page 435 U. S. 623
Prior to 1776, most of the 13 Colonies had some form of an
established, or government-sponsored, church. Id. at 364-446. Even
after ratification of the First Amendment, which prohibited the
Federal Government from following such a course, some States
continued pro-establishment provisions. See id. at 408, 418-427,
444. Massachusetts, the last State to accept disestablishment, did
so in 1833. Id. at 426-427.
In light of this history and a widespread awareness during that
period of undue and often dominant clerical influence in public and
political affairs here, in England, and on the Continent, it is not
surprising that strong views were held by some that one way to
Page 114 of 267
assure disestablishment was to keep clergymen out of public office.
Indeed, some of the foremost political philosophers and statesmen
of that period held such views regarding the clergy. Earlier, John
Locke argued for confining the authority of the English clergy
"within the bounds of the church, nor can it in any manner be
extended to civil affairs, because the church itself is a thing
absolutely separate and distinct from the commonwealth"
5 Works of John Locke 21 (C. Baldwin ed. 1824). Thomas Jefferson
initially advocated such a position in his 1783 draft of a constitution
for Virginia. [Footnote 4] James Madison, however, disagreed, and
vigorously
Page 435 U. S. 624
urged the position which, in our view, accurately reflects the spirit
and purpose of the Religion Clauses of the First Amendment.
Madison's response to Jefferson's position was:
"Does not The exclusion of Ministers of the Gospel, as such, violate
a fundamental principle of liberty by punishing a religious
profession with the privation of a civil right? Does it [not] violate
another article of the plan itself which exempts religion from the
cognizance of Civil power? Does it not violate justice by at once
taking away a right and prohibiting a compensation for it? Does it
not, in fine, violate impartiality by shutting the door [against] the
Ministers of one Religion and leaving it open for those of every
other."
5 Writings of James Madison 288 (G. Hunt ed.1904).
Madison was not the only articulate opponent of clergy
disqualification. When proposals were made earlier to prevent
clergymen from holding public office, John Witherspoon, a
Presbyterian minister, president of Princeton University, and the
only clergyman to sign the Declaration of Independence, made a
cogent protest and, with tongue in cheek, offered an amendment to
a provision much like that challenged here:
CONSTI 2 CASES Free Exercise of Religion
"'No clergyman, of any denomination, shall be capable of being
elected a member of the Senate or House of Representatives,
because (here insert the grounds of offensive disqualification,
which I have not been able to discover) Provided always, and it is
the true intent and meaning of this part of the constitution, that if
at any time he shall be completely deprived of the clerical
character by those by whom he was invested with it, as by
deposition for cursing and swearing, drunkenness or uncleanliness,
he shall then be fully restored to all the privileges of a free
Page 435 U. S. 625
citizen; his offense [of being a clergyman] shall no more be
remembered against him, but he may be chosen either to the
Senate or House of Representatives, and shall be treated with all
the respect due to his brethren, the other members of Assembly.'"
Stokes 624-625.
As the value of the disestablishment experiment was perceived, 11
of the 13 States disqualifying the clergy from some types of public
office gradually abandoned that limitation. New York, for example,
took that step in 1846, after delegates to the State's constitutional
convention argued that the exclusion of clergymen from the
legislature was an "odious distinction." 2 C. Lincoln, The
Constitutional History of New York 111-112 (1906). Only Maryland
and Tennessee continued their clergy disqualification provisions
into this century, and, in 1974, a District Court held Maryland's
provision violative of the First and Fourteenth Amendments'
guarantees of the free exercise of religion. Kirkley v. Maryland, 381
F.Supp. 327. Today, Tennessee remains the only State excluding
ministers from certain public offices.
The essence of this aspect of our national history is that, in all but a
few States, the selection or rejection of clergymen for public office
soon came to be viewed as something safely left to the good sense
and desires of the people.
B
Page 115 of 267
This brief review of the history of clergy disqualification provisions
also amply demonstrates, however, that, at least during the early
segment of our national life, those provisions enjoyed the support
of responsible American statesmen, and were accepted as having a
rational basis. Against this background, we do not lightly invalidate
a statute enacted pursuant to a provision of a state constitution
which has been sustained by its highest court. The challenged
provision came to the Tennessee Supreme Court clothed with the
presumption of validity to which that court was bound to give
deference.
Page 435 U. S. 626
However, the right to the free exercise of religion unquestionably
encompasses the right to preach, proselyte, and perform other
similar religious functions, or, in other words, to be a minister of the
type McDaniel was found to be. Murdock v. Pennsylvania, 319 U. S.
105(1943); Cantwell v. Connecticut, 310 U. S. 296 (1940).
Tennessee also acknowledges the right of its adult citizens
generally to seek and hold office as legislators or delegates to the
state constitutional convention. Tenn.Const., Art. 2, §§ 9, 25, 26;
Tenn.Code Ann. §§ 8-1801, 8-1803 (Supp. 1977). Yet, under the
clergy disqualification provision, McDaniel cannot exercise both
rights simultaneously, because the State has conditioned the
exercise of one on the surrender of the other. Or, in James
Madison's words, the State is "punishing a religious profession with
the privation of a civil right." 5 Writings of James Madison, supra, at
288. In so doing, Tennessee has encroached upon McDaniel's right
to the free exercise of religion.
"[T]o condition the availability of benefits [including access to the
ballot] upon this appellant's willingness to violate a cardinal
principle of [his] religious faith [by surrendering his religiously
impelled ministry] effectively penalizes the free exercise of [his]
constitutional liberties."
Sherbert v. Verner, 374 U. S. 398, 374 U. S. 406 (1963).
If the Tennessee disqualification provision were viewed as depriving
the clergy of a civil right solely because of their religious beliefs,
our inquiry would be at an end. The Free Exercise Clause
categorically prohibits government from regulating, prohibiting, or
CONSTI 2 CASES Free Exercise of Religion
rewarding religious beliefs as such. Id. at 374 U. S. 402; Cantwell v.
Connecticut, supra at 310 U. S. 304. In Torcaso v. Watkins, 367 U. S.
488 (1961), the Court reviewed the Maryland constitutional
requirement that all holders of "any office of profit or trust in this
State" declare their belief in the existence of God. In striking down
the Maryland requirement, the Court did not evaluate the interests
assertedly justifying it, but rather held that it violated freedom of
religious belief.
In our view, however, Torcaso does not govern. By its
Page 435 U. S. 627
terms, the Tennessee disqualification operates against McDaniel
because of his status as a "minister" or "priest." The meaning of
those words is, of course, a question of state law. [Footnote 5] And
although the question has not been examined extensively in state
law sources, such authority as is available indicates that ministerial
status is defined in terms of conduct and activity, rather than in
terms of belief. [Footnote 6] Because the Tennessee disqualification
is directed primarily at status, acts, and conduct, it is unlike the
requirement in Torcaso, which focused on belief. Hence, the Free
Exercise Clause's absolute prohibition of infringements on the
"freedom to believe" is inapposite here. [Footnote 7]
This does not mean, of course, that the disqualification escapes
judicial scrutiny, or that McDaniel's activity does not enjoy
significant First Amendment protection. The Court
Page 435 U. S. 628
recently declared, in Wisconsin v. Yoder, 406 U. S. 205, 406 U. S.
215 (1972):
"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. [Footnote 8]"
Tennessee asserts that its interest in preventing the establishment
of a state religion is consistent with the Establishment Clause, and
Page 116 of 267
thus of the highest order. The constitutional history of the several
States reveals that, generally, the interest in preventing
establishment prompted the adoption of clergy disqualification
provisions, see Stokes 622; Tennessee does not appear to be an
exception to this pattern. Cf. post at 435 U. S. 636 n. 9 (BRENNAN,
J., concurring in judgment). There is no occasion to inquire whether
promoting such an interest is a permissible legislative goal,
however, see post at 435 U. S. 636-642, for Tennessee has failed to
demonstrate that its views of the dangers of clergy participation in
the political process have not lost whatever validity they may once
have enjoyed. The essence of the rationale underlying the
Tennessee restriction on ministers is that, if elected to public office,
they will necessarily exercise
Page 435 U. S. 629
their powers and influence to promote the interests of one sect or
thwart the interests of another, thus pitting one against the others,
contrary to the anti-establishment principle with its command of
neutrality. See Walz v. Tax Comm'n, 397 U. S. 664 (1970). However
widely that view may have been held in the 18th century by many,
including enlightened statesmen of that day, the American
experience provides no persuasive support for the fear that
clergymen in public office will be less careful of anti-establishment
interests or less faithful to their oaths of civil office than their
unordained counterparts. [Footnote 9]
We hold that § 4 of ch. 848 violates McDaniel's First Amendment
right to the free exercise of his religion made applicable to the
States by the Fourteenth Amendment. Accordingly, the judgment of
the Tennessee Supreme Court is reversed, and the case is
remanded to that court for further proceedings not inconsistent
with this opinion.
Reversed and remanded.
MR JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
CONSTI 2 CASES Free Exercise of Religion
U.S. Supreme Court
Goldman v. Weinberger, 475 U.S. 503 (1986)
Goldman v. Weinberger
No. 84-1097
Argued January 14, 1986
Decided March 25, 1986
475 U.S. 503
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Petitioner, an Orthodox Jew and ordained rabbi, was ordered not to
wear a yarmulke while on duty and in uniform as a commissioned
officer in the Air Force at March Air Force Base, pursuant to an Air
Force regulation that provides that authorized headgear may be
worn out of doors but that indoors "[h]eadgear [may] not be
worn . . . except by armed security police in the performance of
their duties." Petitioner then brought an action in Federal District
Court, claiming that the application of the regulation to prevent him
from wearing his yarmulke infringed upon his First Amendment
freedom to exercise his religious beliefs. The District Court
permanently enjoined the Air Force from enforcing the regulation
against petitioner. The Court of Appeals reversed.
Held: The First Amendment does not prohibit the challenged
regulation from being applied to petitioner, even though its effect is
to restrict the wearing of the headgear required by his religious
beliefs. That Amendment does not require the military to
accommodate such practices as wearing a yarmulke in the face of
Page 117 of 267
its view that they would detract from the uniformity sought by
dress regulations. Here, the Air Force has drawn the line essentially
between religious apparel that is visible and that which is not, and
the challenged regulation reasonably and evenhandedly regulates
dress in the interest of the military's perceived need for uniformity.
Pp. 475 U. S. 506-510.
236 U.S.App.D.C. 248, 734 F.2d 1531, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ joined.
STEVENS, J filed a concurring opinion, in which WHITE and POWELL,
JJ., joined, post, p. 475 U. S. 510. BRENNAN, J., filed a dissenting
opinion, in which MARSHALL, J., joined, post, p. 475 U. S. 513.
BLACKMUN, J., filed a dissenting opinion, post, p.475 U. S. 524.
O'CONNOR, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post,p. 475 U. S. 528.
Page 475 U. S. 504
JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner S. Simcha Goldman contends that the Free Exercise
Clause of the First Amendment to the United States Constitution
permits him to wear a yarmulke while in uniform, notwithstanding
an Air Force regulation mandating uniform dress for Air Force
personnel. The District Court for the District of Columbia
permanently enjoined the Air Force from enforcing its regulation
against petitioner and from penalizing him for wearing his
yarmulke. The Court of Appeals for the District of Columbia Circuit
reversed on the ground that the Air Force's strong interest in
discipline justified the strict enforcement of its uniform dress
requirements. We granted certiorari because of the importance of
the question, 472 U.S. 1016 (1985), and now affirm.
Petitioner Goldman is an Orthodox Jew and ordained rabbi. In 1973,
he was accepted into the Armed Forces Health Professions
Scholarship Program and placed on inactive reserve status in the
Air Force while he studied clinical psychology at Loyola University
of Chicago. During his three years in the scholarship program, he
received a monthly stipend and an allowance for tuition, books, and
fees. After completing his Ph.D. in psychology, petitioner
CONSTI 2 CASES Free Exercise of Religion
Page 475 U. S. 505
entered active service in the United States Air Force as a
commissioned officer, in accordance with a requirement that
participants in the scholarship program serve one year of active
duty for each year of subsidized education. Petitioner was stationed
at March Air Force Base in Riverside, California, and served as a
clinical psychologist at the mental health clinic on the base.
Until 1981, petitioner was not prevented from wearing his yarmulke
on the base. He avoided controversy by remaining close to his duty
station in the health clinic and by wearing his service cap over the
yarmulke when out of doors. But in April, 1981, after he testified as
a defense witness at a court-martial wearing his yarmulke but not
his service cap, opposing counsel lodged a complaint with Colonel
Joseph Gregory, the Hospital Commander, arguing that petitioner's
practice of wearing his yarmulke was a violation of Air Force
Regulation (AFR) 35-10. This regulation states in pertinent part that
"[h]eadgear will not be worn . . . [w]hile indoors except by armed
security police in the performance of their duties." AFR 35-10, � 1-
6.h(2)(f) (1980).
Colonel Gregory informed petitioner that wearing a yarmulke while
on duty does indeed violate AFR 35-10, and ordered him not to
violate this regulation outside the hospital. Although virtually all of
petitioner's time on the base was spent in the hospital, he refused.
Later, after petitioner's attorney protested to the Air Force General
Counsel, Colonel Gregory revised his order to prohibit petitioner
from wearing the yarmulke even in the hospital. Petitioner's request
to report for duty in civilian clothing pending legal resolution of the
issue was denied. The next day, he received a formal letter of
reprimand, and was warned that failure to obey AFR 35-10 could
subject him to a court-martial. Colonel Gregory also withdrew a
recommendation that petitioner's application to extend the term of
his active service be approved, and substituted a negative
recommendation.
Page 475 U. S. 506
Petitioner then sued respondent Secretary of Defense and others,
claiming that the application of AFR 35-10 to prevent him from
wearing his yarmulke infringed upon his First Amendment freedom
Page 118 of 267
to exercise his religious beliefs. The United States District Court for
the District of Columbia preliminarily enjoined the enforcement of
the regulation, Goldman v. Secretary of Defense, 530 F.Supp. 12
(1981), and then, after a full hearing, permanently enjoined the Air
Force from prohibiting petitioner from wearing a yarmulke while in
uniform. Goldman v. Secretary of Defense, 29 EPD � 32,753
(1982). Respondents appealed to the Court of Appeals for the
District of Columbia Circuit, which reversed. Goldman v. Secretary
of Defense, 236 U.S.App.D.C. 248, 734 F.2d 1531 (1984). As an
initial matter, the Court of Appeals determined that the appropriate
level of scrutiny of a military regulation that clashes with a
constitutional right is neither strict scrutiny nor rational basis. Id. at
252, 734 F.2d at 1535-1536. Instead, it held that a military
regulation must be examined to determine whether "legitimate
military ends are sought to be achieved," id. at 253, 734 F.2d at
1536, and whether it is "designed to accommodate the individual
right to an appropriate degree." Ibid. Applying this test, the court
concluded that "the Air Force's interest in uniformity renders the
strict enforcement of its regulation permissible." Id. at 257, 734
F.2d at 1540. The full Court of Appeals denied a petition for
rehearing en banc, with three judges dissenting. 238 U.S.App.D.C.
267, 739 F.2d 657 (1984).
Petitioner argues that AFR 35-10, as applied to him, prohibits
religiously motivated conduct, and should therefore be analyzed
under the standard enunciated in Sherbert v. Verner, 374 U. S.
398, 374 U. S. 406 (1963). See also Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin
v. Yoder, 406 U. S. 205 (1972). But we have repeatedly held that
"the military is, by necessity, a specialized society separate from
civilian society."
Page 475 U. S. 507
Parker v. Levy, 417 U. S. 733, 417 U. S. 743 (1974). See also
Chappell v. Wallace, 462 U. S. 296,462 U. S.
300 (1983); Schlesinger v. Councilman, 420 U. S. 738, 420 U. S.
757 (1975); Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 94 (1953).
"[T]he military must insist upon a respect for duty and a discipline
without counterpart in civilian life," Schlesinger v. Councilman,
supra, at420 U. S. 757, in order to prepare for and perform its vital
role. See also Brown v. Glines, 444 U. S. 348, 354 (1980).
CONSTI 2 CASES Free Exercise of Religion
Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of similar
laws or regulations designed for civilian society. The military need
not encourage debate or tolerate protest to the extent that such
tolerance is required of the civilian state by the First Amendment;
to accomplish its mission, the military must foster instinctive
obedience, unity, commitment, and esprit de corps. See, e.g.,
Chappell v. Wallace, supra, at 462 U. S. 300; Greer v. Spock, 424 U.
S. 828, 424 U. S. 843-844 (1976) (POWELL, J., concurring); Parker v.
Levy, supra, at 417 U. S. 744. The essence of military service "is the
subordination of the desires and interests of the individual to the
needs of the service." Orloff v. Willoughby, supra, at 345 U. S. 92.
These aspects of military life do not, of course, render entirely
nugatory in the military context the guarantees of the First
Amendment. See, e.g., Chappell v. Wallace, supra, at 462 U. S. 304.
But "within the military community, there is simply not the same
[individual] autonomy as there is in the larger civilian
community." Parker v. Levy, supra, at 417 U. S. 751. In the context
of the present case, when evaluating whether military needs justify
a particular restriction on religiously motivated conduct, courts
must give great deference to the professional judgment of military
authorities concerning the relative importance of a particular
military interest. See Chappell v. Wallace, supra, at 462 U. S.
305; Orloff v. Willoughby, supra, 345 U. S. 93-94. Not only are
courts "ill-equipped to determine the impact upon discipline that
any particular intrusion upon military authority might
have,'" Chappell v. Wallace,
Page 475 U. S. 508
supra, at 462 U. S. 305, quoting Warren, The Bill of Rights and the
Military, 37 N.Y.U.L.Rev. 181, 187 (1962), but the military
authorities have been charged by the Executive and Legislative
Branches with carrying out our Nation's military policy.
"[J]udicial deference . . . is at its apogee when legislative action
under the congressional authority to raise and support armies and
make rules and regulations for their governance is challenged."
Rostker v. Goldberg, 453 U. S. 57, 453 U. S. 70 (1981).
Page 119 of 267
The considered professional judgment of the Air Force is that the
traditional outfitting of personnel in standardized uniforms
encourages the subordination of personal preferences and
identities in favor of the overall group mission. Uniforms encourage
a sense of hierarchical unity by tending to eliminate outward
individual distinctions except for those of rank. The Air Force
considers them as vital during peacetime as during war, because
its personnel must be ready to provide an effective defense on a
moment's notice; the necessary habits of discipline and unity must
be developed in advance of trouble. We have acknowledged that
"[t]he inescapable demands of military discipline and obedience to
orders cannot be taught on battlefields; the habit of immediate
compliance with military procedures and orders must be virtually
reflex, with no time for debate or reflection."
Chappell v. Wallace, supra, at 462 U. S. 300.
To this end, the Air Force promulgated AFR 35-10, a 190-page
document, which states that "Air Force members will wear the Air
Force uniform while performing their military duties, except when
authorized to wear civilian clothes on duty." AFR 35-10, � 1-6
(1980). The rest of the document describes in minute detail all of
the various items of apparel that must be worn as part of the Air
Force uniform. It authorizes a few individualized options with
respect to certain pieces of jewelry and hairstyle, but even these
are subject to severe limitations.See AFR 35-10, Table 1-1, and � 1-
12.b(1)(b) (1980). In general, authorized headgear may
Page 475 U. S. 509
be worn only out of doors. See AFR 35-10, � 1-6.h (1980). Indoors,
"[h]eadgear [may] not be worn . . . except by armed security police
in the performance of their duties." AFR 35-10, � 1-6.h(2)(f)
(1980). A narrow exception to this rule exists for headgear worn
during indoor religious ceremonies. See AFR 35-10, � 1-6.h(2)(d)
(1980). In addition, military commanders may in their discretion
permit visible religious headgear and other such apparel in
designated living quarters and nonvisible items
generally. See Department of Defense Directive 1300.17 (June 18,
1985).
CONSTI 2 CASES Free Exercise of Religion
Petitioner Goldman contends that the Free Exercise Clause of the
First Amendment requires the Air Force to make an exception to its
uniform dress requirements for religious apparel unless the
accouterments create a "clear danger" of undermining discipline
and esprit de corps. He asserts that, in general, visible but
"unobtrusive" apparel will not create such a danger, and must
therefore be accommodated. He argues that the Air Force failed to
prove that a specific exception for his practice of wearing an
unobtrusive yarmulke would threaten discipline. He contends that
the Air Force's assertion to the contrary is mere ipse dixit, with no
support from actual experience or a scientific study in the record,
and is contradicted by expert testimony that religious exceptions to
AFR 35-10 are in fact desirable, and will increase morale by making
the Air Force a more humane place.
But whether or not expert witnesses may feel that religious
exceptions to AFR 35-10 are desirable is quite beside the point. The
desirability of dress regulations in the military is decided by the
appropriate military officials, and they are under no constitutional
mandate to abandon their considered professional judgment. Quite
obviously, to the extent the regulations do not permit the wearing
of religious apparel such as a yarmulke, a practice described by
petitioner as silent devotion akin to prayer, military life may be
more objectionable for petitioner and probably others. But the First
Amendment does not require the military to accommodate
Page 475 U. S. 510
such practices in the face of its view that they would detract from
the uniformity sought by the dress regulations. The Air Force has
drawn the line essentially between religious apparel that is visible
and that which is not, and we hold that those portions of the
regulations challenged here reasonably and evenhandedly regulate
dress in the interest of the military's perceived need for uniformity.
The First Amendment therefore does not prohibit them from being
applied to petitioner, even though their effect is to restrict the
wearing of the headgear required by his religious beliefs.
The judgment of the Court of Appeals is
Affirmed.
Page 120 of 267
JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE POWELL
join, concurring.
Captain Goldman presents an especially attractive case for an
exception from the uniform regulations that are applicable to all
other Air Force personnel. His devotion to his faith is readily
apparent. The yarmulke is a familiar and accepted sight. [Footnote
1] In addition to its religious significance for the wearer, the
yarmulke may evoke the deepest respect and admiration -- the
symbol of a distinguished tradition [Footnote 2] and an
Page 475 U. S. 511
eloquent rebuke to the ugliness of anti-Semitism. [Footnote 3]
Captain Goldman's military duties are performed in a setting in
which a modest departure from the uniform regulation creates
almost no danger of impairment of the Air Force's military mission.
Moreover, on the record before us, there is reason to believe that
the policy of strict enforcement against Captain Goldman had a
retaliatory motive -- he had worn his yarmulke while testifying on
behalf of a defendant in a court-martial proceeding. [Footnote 4]
Nevertheless, as the case has been argued, [Footnote 5]
Page 475 U. S. 512
I believe we must test the validity of the Air Force's rule not merely
as it applies to Captain Goldman, but also as it applies to all service
personnel who have sincere religious beliefs that may conflict with
one or more military commands.
JUSTICE BRENNAN is unmoved by the Government's concern that,
"while a yarmulke might not seem obtrusive to a Jew, neither does
a turban to a Sikh, a saffron robe to a Satchidananda Ashram-
Integral Yogi, nor do dreadlocks to a Rastafarian."
Post at 475 U. S. 519. He correctly points out that "turbans, saffron
robes, and dreadlocks are not before us in this case," and then
suggests that other cases may be fairly decided by reference to a
reasonable standard based on "functional utility, health and safety
considerations, and the goal of a polished, professional
CONSTI 2 CASES Free Exercise of Religion
appearance." Ibid. As the Court has explained, this approach
attaches no weight to the separate interest in uniformity itself.
Because professionals in the military service attach great
importance to that plausible interest, it is one that we must
recognize as legitimate and rational even though personal
experience or admiration for the performance of the "rag-tag band
of soldiers" that won us our freedom in the Revolutionary War
might persuade us that the Government has exaggerated the
importance of that interest.
The interest in uniformity, however, has a dimension that is of still
greater importance for me. It is the interest in uniform treatment
for the members of all religious faiths. The very strength of Captain
Goldman's claim creates the danger that a similar claim on behalf
of a Sikh or a Rastafarian might readily be dismissed as "so
extreme, so unusual, or so faddish an image that public confidence
in his ability to perform his duties will be destroyed." Postat 475 U.
S. 518. If exceptions from dress code regulations are to be granted
on the basis of a multifactored test such as that proposed by
JUSTICE BRENNAN, inevitably the decisionmaker's evaluation of the
character
Page 475 U. S. 513
and the sincerity of the requester's faith -- as well as the probable
reaction of the majority to the favored treatment of a member of
that faith -- will play a critical part in the decision. For the difference
between a turban or a dreadlock on the one hand, and a yarmulke
on the other, is not merely a difference in "appearance" -- it is also
the difference between a Sikh or a Rastafarian, on the one hand,
and an Orthodox Jew on the other. The Air Force has no business
drawing distinctions between such persons when it is enforcing
commands of universal application. [Footnote 6]
As the Court demonstrates, the rule that is challenged in this case
is based on a neutral, completely objective standard -- visibility. It
was not motivated by hostility against, or any special respect for,
any religious faith. An exception for yarmulkes would represent a
fundamental departure from the true principle of uniformity that
supports that rule. For that reason, I join the Court's opinion and its
judgment.
Page 121 of 267

Lee v. Weisman, 505 U.S. 577 (1992)
OCTOBER TERM, 1991
Syllabus
LEE ET AL. v. WEISMAN, PERSONALLY AND AS NEXT FRIEND OF
WEISMAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
No. 90-1014. Argued November 6, 1991-Decided June 24, 1992
Principals of public middle and high schools in Providence, Rhode
Island, are permitted to invite members of the clergy to give
invocations and benedictions at their schools' graduation
ceremonies. Petitioner Lee, a middle school principal, invited a
rabbi to offer such prayers at the graduation ceremony for Deborah
Weisman's class, gave the rabbi a pamphlet containing guidelines
for the composition of public prayers at civic ceremonies, and
advised him that the prayers should be nonsectarian. Shortly
before the ceremony, the District Court denied the motion of
respondent Weisman, Deborah's father, for a temporary restraining
order to prohibit school officials from including the prayers in the
ceremony. Deborah and her family attended the ceremony, and the
prayers were recited. Subsequently, Weisman sought a permanent
injunction barring Lee and other petitioners, various Providence
public school officials, from inviting clergy to deliver invocations
and benedictions at future graduations. It appears likely that such
prayers will be conducted at Deborah's high school graduation. The
District Court enjoined petitioners from continuing the practice at
issue on the ground that it violated the Establishment Clause of the
First Amendment. The Court of Appeals affirmed.
Held: Including clergy who offer prayers as part of an official public
school graduation ceremony is forbidden by the Establishment
Clause. Pp.586-599.
CONSTI 2 CASES Free Exercise of Religion
(a) This Court need not revisit the questions of the definition and
scope of the principles governing the extent of permitted
accommodation by the State for its citizens' religious beliefs and
practices, for the controlling precedents as they relate to prayer
and religious exercise in primary and secondary public schools
compel the holding here. Thus, the Court will not reconsider its
decision in Lemon v. Kurtzman, 403 U. S. 602. The principle that
government may accommodate the free exercise of religion does
not supersede the fundamental limitations imposed by the
Establishment Clause, which guarantees at a minimum that a
government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which "establishes
a
578
Syllabus
[state] religion or religious faith, or tends to do
so." Lynch v. Donnelly, 465 U. S. 668, 678. Pp. 586-587.
(b) State officials here direct the performance of a formal religious
exercise at secondary schools' promotional and graduation
ceremonies. Lee's decision that prayers should be given and his
selection of the religious participant are choices attributable to the
State. Moreover, through the pamphlet and his advice that the
prayers be nonsectarian, he directed and controlled the prayers'
content. That the directions may have been given in a good-faith
attempt to make the prayers acceptable to most persons does not
resolve the dilemma caused by the school's involvement, since the
government may not establish an official or civic religion as a
means of avoiding the establishment of a religion with more
specific creeds. Pp. 587-590.
(c) The Establishment Clause was inspired by the lesson that in the
hands of government what might begin as a tolerant expression of
religious views may end in a policy to indoctrinate and coerce.
Prayer exercises in elementary and secondary schools carry a
particular risk of indirect coercion. Engel v. Vitale, 370 U. S.
Page 122 of 267
421; School Dist. of Abington v. Schempp, 374 U. S. 203. The school
district's supervision and control of a high school graduation
ceremony places subtle and indirect public and peer pressure on
attending students to stand as a group or maintain respectful
silence during the invocation and benediction. A reasonable
dissenter of high school age could believe that standing or
remaining silent signified her own participation in, or approval of,
the group exercise, rather than her respect for it. And the State
may not place the student dissenter in the dilemma of participating
or protesting. Since adolescents are often susceptible to peer
pressure, especially in matters of social convention, the State may
no more use social pressure to enforce orthodoxy than it may use
direct means. The embarrassment and intrusion of the religious
exercise cannot be refuted by arguing that the prayers are of a de
minimis character, since that is an affront to the rabbi and those for
whom the prayers have meaning, and since any intrusion was both
real and a violation of the objectors' rights. pp. 590-594.
(d) Petitioners' argument that the option of not attending the
ceremony excuses any inducement or coercion in the ceremony
itself is rejected. In this society, high school graduation is one of
life's most significant occasions, and a student is not free to absent
herself from the exercise in any real sense of the term "voluntary."
Also not dispositive is the contention that prayers are an essential
part of these ceremonies because for many persons the occasion
would lack meaning without the recognition that human
achievements cannot be understood apart from their spiritual
essence. This position fails to acknowledge that what
579
for many was a spiritual imperative was for the Weismans religious
conformance compelled by the State. It also gives insufficient
recognition to the real conflict of conscience faced by a student
who would have to choose whether to miss graduation or conform
to the state-sponsored practice, in an environment where the risk
of compulsion is especially high. Pp. 594-596.
(e) Inherent differences between the public school system and a
session of a state legislature distinguish this case
CONSTI 2 CASES Free Exercise of Religion
from Marsh v. Chambers, 463 U. S. 783, which condoned a prayer
exercise. The atmosphere at a state legislature's opening, where
adults are free to enter and leave with little comment and for any
number of reasons, cannot compare with the constraining potential
of the one school event most important for the student to attend.
pp. 596-598.
908 F.2d 1090, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined.
BLACKMUN, J., post, p. 599, and SOUTER, J., post, p. 609, filed
concurring opinions, in which STEVENS and O'CONNOR, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and
WHITE and THOMAS, JJ., joined, post, p. 631.
Charles J. Cooper argued the cause for petitioners. With him on the
briefs were Michael A. Carvin, Peter J. Ferrara, Robert J. Cynkar,
Joseph A. Rotella, and Jay Alan Sekulow.
Solicitor General Starr argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Assistant
Attorney General Gerson, Deputy Solicitor General Roberts, Deputy
Assistant Attorney General McGinnis, and Richard H. Seamon.
Sandra A. Blanding argued the cause for respondent.
With her on the brief were Steven R. Shapiro and John A. Powell.*
*Briefs of amici curiae urging reversal were filed for the Board of
Education of Alpine School District by Brinton R.
Burbidge and Merrill F. Nelson; for the Christian Legal Society et al.
by Edward McGlynn Gaffney, Michael J. Woodruff, Samuel E.
Ericsson, and Forest D. Montgomery; for the Clarendon Foundation
by Kemp R. Harshman and Ronald
580
Page 123 of 267
JUSTICE KENNEDY delivered the opinion of the Court. School
principals in the public school system of the city of Providence,
Rhode Island, are permitted to invite members of the clergy to offer 581
invocation and benediction prayers as part of the formal graduation
ceremonies for middle schools and for high schools. The question
IA
before us is whether including clerical members who offer prayers
as part of the official school graduation ceremony is consistent with
the Religion Clauses of the First Amendment, provisions the Deborah Weisman graduated from Nathan Bishop Middle School, a
Fourteenth Amendment makes applicable with full force to the public school in Providence, at a formal ceremony in June 1989. She
States and their school districts. was about 14 years old. For many years it has been the policy of
the Providence School Committee and the Superintendent of
Schools to permit principals to invite members of the clergy to give
D. Maines; for Concerned Women for America et al. by James
invocations and benedictions at middle school and high school
Matthew Henderson, Sr., Jordan Lorence, Mark N Troobnick, and
graduations. Many, but not all, of the principals elected to include
Thomas Patrick Monaghan; for Focus on the Family et al. by
prayers as part of the graduation ceremonies. Acting for himself
Stephen H. Galebach and Laura D. Millman; for the Liberty Counsel
and his daughter, Deborah's father, Daniel Weisman, objected to
by Mathew D. Staver; for the National Jewish Commission on Law
any prayers at Deborah's middle school graduation, but to no avail.
and Public Affairs by Nathan Lewin and Dennis Rapps; for the
The school principal, petitioner Robert E. Lee, invited a rabbi to
National Legal Foundation by Robert K. Skolrood and Brian M.
deliver prayers at the graduation exercises for Deborah's class.
McCormick; for the Rutherford Institute et al. by John W Whitehead,
Rabbi Leslie Gutterman, of the Temple Beth EI in Providence,
Alexis I. Crow, A. Eric Johnston, Stephen E. Hurst, Joseph Secola,
accepted.
Thomas S. Neuberger, J. Brian Heller, Amy Dougherty, David
Melton, Thomas W Strahan, Robert R. Melnick, William Bonner,
Larry Crain, W Charles Bundren, and James Knicely; for Specialty It has been the custom of Providence school officials to provide
Research Associates, Inc., et al. by Jordan Lorence; for the Southern invited clergy with a pamphlet entitled "Guidelines for Civic
Baptist Convention Christian Life Commission by Michael K. Occasions," prepared by the National Conference of Christians and
Whitehead and James M. Smart, Jr.; and for the United States Jews. The Guidelines recommend that public prayers at
Catholic Conference by Mark E. Chopko and Phillip H. Harris. nonsectarian civic ceremonies be composed with "inclusiveness
and sensitivity," though they acknowledge that "[p]rayer of any
kind may be inappropriate on some civic occasions." App. 20-21.
Briefs of amici curiae urging affirmance were filed for Americans for
The principal gave Rabbi Gutterman the pamphlet before the
Religious Liberty by Ronald A. Lindsay; and for the American Jewish
graduation and advised him the invocation and benediction should
Congress et al. by Douglas Laycock.
be nonsectarian. Agreed Statement of Facts' 17, id., at 13.
Briefs of amici curiae were filed for the State of Delaware
Rabbi Gutterman's prayers were as follows:
by Charles M. Oberly III, Attorney General of
Delaware, Michael F. Foster, Solicitor
General, David S. Swayze, and David B. Ripsom; for the Council on "INVOCATION "God of the Free, Hope of the Brave:
Religious Freedom et al. by Lee Boothby, Robert W Nixon, Walter E.
Carson, and Rolland Truman; for the Institute in Basic Life Principles "For the legacy of America where diversity is celebrated and the
by Joe Reynolds; for the National Coalition for Public Education and rights of minorities are protected, we
Religious Liberty et al. by David B. Isbell and T. Jeremy Gunn; and
for the National School Boards Association by Gwendolyn H.
Gregory, August W Steinhilber, and Thomas A. Shannon.

CONSTI 2 CASES Free Exercise of Religion Page 124 of 267

582
thank YOU. May these young men and women grow up to enrich it.
"For the liberty of America, we thank YOU. May these new
graduates grow up to guard it.
"For the political process of America in which all its citizens may
participate, for its court system where all may seek justice we
thank You. May those we honor this morning always turn to it in
trust.
"For the destiny of America we thank YOU. May the graduates of
Nathan Bishop Middle School so live that they might help to share
it.
"May our aspirations for our country and for these young people,
who are our hope for the future, be richly fulfilled.
AMEN" "BENEDICTION
"0 God, we are grateful to You for having endowed us with the
capacity for learning which we have celebrated on this joyous
commencement.
"Happy families give thanks for seeing their children achieve an
important milestone. Send Your blessings upon the teachers and
administrators who helped prepare them.
"The graduates now need strength and guidance for the future,
help them to understand that we are not complete with academic
knowledge alone. We must each strive to fulfill what You require of
us all: To do justly, to love mercy, to walk humbly.
"We give thanks to You, Lord, for keeping us alive, sustaining us and
allowing us to reach this special, happy occasion.
AMEN"
Id., at 22-23.
CONSTI 2 CASES Free Exercise of Religion
583
The record in this case is sparse in many respects, and we are
unfamiliar with any fixed custom or practice at middle school
graduations, referred to by the school district as "promotional
exercises." We are not so constrained with reference to high
schools, however. High school graduations are such an integral part
of American cultural life that we can with confidence describe their
customary features, confirmed by aspects of the record and by the
parties' representations at oral argument. In the Providence school
system, most high school graduation ceremonies are conducted
away from the school, while most middle school ceremonies are
held on school premises. Classical High School, which Deborah now
attends, has conducted its graduation ceremonies on school
premises. Agreed Statement of Facts , 37, id., at 17. The parties
stipulate that attendance at graduation ceremonies is voluntary.
Agreed Statement of Facts' 41, id., at 18. The graduating students
enter as a group in a processional, subject to the direction of
teachers and school officials, and sit together, apart from their
families. We assume the clergy's participation in any high school
graduation exercise would be about what it was at Deborah's
middle school ceremony. There the students stood for the Pledge of
Allegiance and remained standing during the rabbi's prayers. Tr. of
Oral Arg. 38. Even on the assumption that there was a respectful
moment of silence both before and after the prayers, the rabbi's
two presentations must not have extended much beyond a minute
each, if that. We do not know whether he remained on stage during
the whole ceremony, or whether the students received individual
diplomas on stage, or if he helped to congratulate them.
The school board (and the United States, which supports it
as amicus curiae) argued that these short prayers and others like
them at graduation exercises are of profound meaning to many
students and parents throughout this country who consider that
due respect and acknowledgment for divine guidance and for the
deepest spiritual aspirations of
Page 125 of 267
584
our people ought to be expressed at an event as important in life as
a graduation. We assume this to be so in addressing the difficult
case now before us, for the significance of the prayers lies also at
the heart of Daniel and Deborah Weisman's case.
B decided, based on its reading of our precedents, that the effects
Deborah's graduation was held on the premises of Nathan Bishop
Middle School on June 29, 1989. Four days before the ceremony,
Daniel Weisman, in his individual capacity as a Providence taxpayer
and as next friend of Deborah, sought a temporary restraining
order in the United States District Court for the District of Rhode
Island to prohibit school officials from including an invocation or
benediction in the graduation ceremony. The court denied the
motion for lack of adequate time to consider it. Deborah and her
family attended the graduation, where the prayers were recited. In
July 1989, Daniel Weisman filed an amended complaint seeking a
permanent injunction barring petitioners, various officials of the
Providence public schools, from inviting the clergy to deliver
invocations and benedictions at future graduations. We find it
unnecessary to address Daniel Weisman's taxpayer standing, for a
live and justiciable controversy is before us. Deborah Weisman is
enrolled as a student at Classical High School in Providence and
from the record it appears likely, if not certain, that an invocation
and benediction will be conducted at her high school graduation.
Agreed Statement of Facts' 38, App. 17.
The case was submitted on stipulated facts. The District Court held
that petitioners' practice of including invocations and benedictions
in public school graduations violated the Establishment Clause of
the First Amendment, and it enjoined petitioners from continuing
the practice. 728 F. Supp. 68 (1990). The court applied the three-
part Establishment Clause test set forth in Lemon v. Kurtzman, 403
U. S. 602 (1971). Under that test as described in our past cases, to
satisfy the Establishment Clause a governmen-
585
CONSTI 2 CASES Free Exercise of Religion
tal practice must (1) reflect a clearly secular purpose; (2) have a
primary effect that neither advances nor inhibits religion; and (3)
avoid excessive government entanglement with
religion. Committee for Public Ed. & Religious
Liberty v. Nyquist, 413 U. S. 756, 773 (1973). The District Court
held that petitioners' actions violated the second part of the test,
and so did not address either the first or the third. The court
test of Lemon is violated whenever government action "creates an
identification of the state with a religion, or with religion in
general," 728 F. Supp., at 71, or when "the effect of the
governmental action is to endorse one religion over another, or to
endorse religion in generaL" Id., at 72. The court determined that
the practice of including invocations and benedictions, even so-
called nonsectarian ones, in public school graduations creates an
identification of governmental power with religious practice,
endorses religion, and violates the Establishment Clause. In so
holding the court expressed the determination not to
follow Stein v. Plainwell Community Schools, 822 F.2d 1406 (1987),
in which the Court of Appeals for the Sixth Circuit, relying on our
decision in Marsh v. Chambers, 463 U. S. 783 (1983), held that
benedictions and invocations at public school graduations are not
always unconstitutional. In Marsh we upheld the constitutionality of
the Nebraska State Legislature's practice of opening each of its
sessions with a prayer offered by a chaplain paid out of public
funds. The District Court in this case disagreed with the Sixth
Circuit's reasoning because it believed that Marsh was a narrow
decision, "limited to the unique situation of legislative prayer," and
did not have any relevance to school prayer cases. 728 F. Supp., at
74.
On appeal, the United States Court of Appeals for the First Circuit
affirmed. The majority opinion by Judge Torruella adopted the
opinion of the District Court. 908 F.2d 1090 (1990). Judge Bownes
joined the majority, but wrote a separate concurring opinion in
which he decided that the
586
Page 126 of 267
practices challenged here violated all three parts of the Lemon test.
Judge Bownes went on to agree with the District Court
that Marsh had no application to school prayer cases and that
the Stein decision was flawed. He concluded by suggesting that
under Establishment Clause rules no prayer, even one excluding
any mention of the Deity, could be offered at a public school
graduation ceremony. 908 F. 2d, at 1090-1097. Judge Campbell
dissented, on the basis of Marsh and Stein. He reasoned that if the
prayers delivered were nonsectarian, and if school officials ensured
that persons representing a variety of beliefs and ethical systems
were invited to present invocations and benedictions, there was no
violation of the Establishment Clause. 908 F. 2d, at 1099. We
granted certiorari, 499 U. S. 918 (1991), and now affirm.
II
These dominant facts mark and control the confines of our
decision: State officials direct the performance of a formal religious
exercise at promotional and graduation ceremonies for secondary
schools. Even for those students who object to the religious
exercise, their attendance and participation in the state-sponsored
religious activity are in a fair and real sense obligatory, though the
school district does not require attendance as a condition for
receipt of the diploma.
This case does not require us to revisit the difficult questions
dividing us in recent cases, questions of the definition and full
scope of the principles governing the extent of permitted
accommodation by the State for the religious beliefs and practices
of many of its citizens. See County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S.
573 (1989); Wallace v. Jaffree, 472 U. S.
38 (1985); Lynch v. Donnelly, 465 U. S. 668(1984). For without
reference to those principles in other contexts, the controlling
precedents as they relate to prayer and religious exercise in
primary and secondary public schools compel the holding here that
the policy of the city of Providence is an
587
CONSTI 2 CASES Free Exercise of Religion
unconstitutional one. We can decide the case without reconsidering
the general constitutional framework by which public schools'
efforts to accommodate religion are measured. Thus we do not
accept the invitation of petitioners and amicus the United States to
reconsider our decision in Lemon v. Kurtzman, supra. The
government involvement with religious activity in this case is
pervasive, to the point of creating a state-sponsored and state-
directed religious exercise in a public school. Conducting this formal
religious observance conflicts with settled rules pertaining to prayer
exercises for students, and that suffices to determine the question
before us.
The principle that government may accommodate the free exercise
of religion does not supersede the fundamentallimitations imposed
by the Establishment Clause. It is beyond dispute that, at a
minimum, the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which "establishes a [state] religion or
religious faith, or tends to do so." Lynch, supra, at 678; see
also County of Allegheny, supra, at 591, quoting Everson v. Board
of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). The State's involvement
in the school prayers challenged today violates these central
principles.
That involvement is as troubling as it is undenied. A school official,
the principal, decided that an invocation and a benediction should
be given; this is a choice attributable to the State, and from a
constitutional perspective it is as if a state statute decreed that the
prayers must occur. The principal chose the religious participant,
here a rabbi, and that choice is also attributable to the State. The
reason for the choice of a rabbi is not disclosed by the record, but
the potential for divisiveness over the choice of a particular
member of the clergy to conduct the ceremony is apparent.
Divisiveness, of course, can attend any state decision respecting
religions, and neither its existence nor its potential
588
Page 127 of 267
necessarily invalidates the State's attempts to accommodate
religion in all cases. The potential for divisiveness is of particular
relevance here though, because it centers around an overt religious
exercise in a secondary school environment where, as we discuss
below, see infra, at 593-594, subtle coercive pressures exist and
where the student had no real alternative which would have
allowed her to avoid the fact or appearance of participation.
The State's role did not end with the decision to include a prayer
and with the choice of a clergyman. Principal Lee provided Rabbi
Gutterman with a copy of the "Guidelines for Civic Occasions," and
advised him that his prayers should be nonsectarian. Through
these means the principal directed and controlled the content of
the prayers. Even if the only sanction for ignoring the instructions
were that the rabbi would not be invited back, we think no religious
representative who valued his or her continued reputation and
effectiveness in the community would incur the State's displeasure
in this regard. It is a cornerstone principle of our Establishment
Clause jurisprudence that "it is no part of the business of
government to compose official prayers for any group of the
American people to recite as a part of a religious program carried
on by government," Engel v. Vitale, 370 U. S. 421, 425 (1962), and
that is what the school officials attempted to do.
Petitioners argue, and we find nothing in the case to refute it, that
the directions for the content of the prayers were a good-faith
attempt by the school to ensure that the sectarianism which is so
often the fiashpoint for religious animosity be removed from the
graduation ceremony. The concern is understandable, as a prayer
which uses ideas or images identified with a particular religion may
foster a different sort of sectarian rivalry than an invocation or
benediction in terms more neutral. The school's explanation,
however, does not resolve the dilemma caused by its participation.
The question is not the good faith of the school in attempting to
make
589
the prayer acceptable to most persons, but the legitimacy of its
undertaking that enterprise at all when the object is to produce a
CONSTI 2 CASES Free Exercise of Religion
prayer to be used in a formal religious exercise which students, for
all practical purposes, are obliged to attend.
We are asked to recognize the existence of a practice of
nonsectarian prayer, prayer within the embrace of what is known
as the Judeo-Christian tradition, prayer which is more acceptable
than one which, for example, makes explicit references to the God
of Israel, or to Jesus Christ, or to a patron saint. There may be some
support, as an empirical observation, to the statement of the Court
of Appeals for the Sixth Circuit, picked up by Judge Campbell's
dissent in the Court of Appeals in this case, that there has emerged
in this country a civic religion, one which is tolerated when
sectarian exercises are not. Stein, 822 F. 2d, at 1409; 908 F.2d
1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case
below); see also Note, Civil Religion and the Establishment Clause,
95 Yale L. J. 1237 (1986). If common ground can be defined which
permits once conflicting faiths to express the shared conviction that
there is an ethic and a morality which transcend human invention,
the sense of community and purpose sought by all decent societies
might be advanced. But though the First Amendment does not
allow the government to stifle prayers which aspire to these ends,
neither does it permit the government to undertake that task for
itself.
The First Amendment's Religion Clauses mean that religious beliefs
and religious expression are too precious to be either proscribed or
prescribed by the State. The design of the Constitution is that
preservation and transmission of religious beliefs and worship is a
responsibility and a choice committed to the private sphere, which
itself is promised freedom to pursue that mission. It must not be
forgotten then, that while concern must be given to define the
protection granted to an objector or a dissenting nonbeliever, these
same Clauses exist to protect religion from government in-
590
terference. James Madison, the principal author of the Bill of Rights,
did not rest his opposition to a religious establishment on the sole
ground of its effect on the minority. A principal ground for his view
was: "[E]xperience witnesseth that ecclesiastical establishments,
Page 128 of 267
instead of maintaining the purity and efficacy of Religion, have had
a contrary operation." Memorial and Remonstrance Against
Religious Assessments (1785), in 8 Papers of James Madison 301
(w. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973).
These concerns have particular application in the case of school
officials, whose effort to monitor prayer will be perceived by the
students as inducing a participation they might otherwise reject.
Though the efforts of the school officials in this case to find
common ground appear to have been a good-faith attempt to
recognize the common aspects of religions and not the divisive
ones, our precedents do not permit school officials to assist in
composing prayers as an incident to a formal exercise for their
students. Engel v. Vitale, supra, at 425. And these same precedents
caution us to measure the idea of a civic religion against the central
meaning of the Religion Clauses of the First Amendment, which is
that all creeds must be tolerated and none favored. The suggestion
that government may establish an official or civic religion as a
means of avoiding the establishment of a religion with more
specific creeds strikes us as a contradiction that cannot be
accepted.
The degree of school involvement here made it clear that the
graduation prayers bore the imprint of the State and thus put
school-age children who objected in an untenable position. We turn
our attention now to consider the position of the students, both
those who desired the prayer and she who did not.
To endure the speech of false ideas or offensive content and then to
counter it is part of learning how to live in a pluralistic society, a
society which insists upon open discourse towards the end of a
tolerant citizenry. And toler-
591
ance presupposes some mutuality of obligation. It is argued that
our constitutional vision of a free society requires confidence in our
own ability to accept or reject ideas of which we do not approve,
and that prayer at a high school graduation does nothing more
CONSTI 2 CASES Free Exercise of Religion
than offer a choice. By the time they are seniors, high school
students no doubt have been required to attend classes and
assemblies and to complete assignments exposing them to ideas
they find distasteful or immoral or absurd or all of these. Against
this background, students may consider it an odd measure of
justice to be subjected during the course of their educations to
ideas deemed offensive and irreligious, but to be denied a brief,
formal prayer ceremony that the school offers in return. This
argument cannot prevail, however. It overlooks a fundamental
dynamic of the Constitution.
The First Amendment protects speech and religion by quite
different mechanisms. Speech is protected by ensuring its full
expression even when the government participates, for the very
object of some of our most important speech is to persuade the
government to adopt an idea as its own. Meese v. Keene, 481 U. S.
465, 480-481 (1987); see also Keller v. State Bar of California, 496
U. S. 1, 10-11 (1990); Abood v. Detroit Bd. of Ed., 431 U. S.
209 (1977). The method for protecting freedom of worship and
freedom of conscience in religious matters is quite the reverse. In
religious debate or expression the government is not a prime
participant, for the Framers deemed religious establishment
antithetical to the freedom of all. The Free Exercise Clause
embraces a freedom of conscience and worship that has close
parallels in the speech provisions of the First Amendment, but the
Establishment Clause is a specific prohibition on forms of state
intervention in religious affairs with no precise counterpart in the
speech provisions. Buckley v. Valeo, 424 U. S. 1, 92-93, and n. 127
(1976) (per curiam). The explanation lies in the lesson of history
that was and is the inspiration for the Establishment Clause, the
lesson that in
592
the hands of government what might begin as a tolerant expression
of religious views may end in a policy to indoctrinate and coerce. A
state-created orthodoxy puts at grave risk that freedom of belief
and conscience which are the sole assurance that religious faith is
real, not imposed.
Page 129 of 267
The lessons of the First Amendment are as urgent in the modern
world as in the 18th century when it was written. One timeless
lesson is that if citizens are subjected to statesponsored religious
exercises, the State disavows its own duty to guard and respect
that sphere of inviolable conscience and belief which is the mark of
a free people. To compromise that principle today would be to deny
our own tradition and forfeit our standing to urge others to secure
the protections of that tradition for themselves.
As we have observed before, there are heightened concerns with
protecting freedom of conscience from subtle coercive pressure in
the elementary and secondary public schools. See, e. g., School
Dist. of Abington v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg,
J., concurring); Edwards v. Aguillard, 482 U. S. 578, 584
(1987); Board of Ed. of Westside Community Schools (Dist. 66)
v. Mergens, 496 U. S. 226, 261-262 (1990) (KENNEDY, J.,
concurring). Our decisions in Engel v. Vitale, 370 U. S. 421 (1962),
and School Dist. of Abington, supra, recognize, among other things,
that prayer exercises in public schools carry a particular risk of
indirect coercion. The concern may not be limited to the context of
schools, but it is most pronounced there. See County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S., at 661 (KENNEDY, J., concurring in judgment in
part and dissenting in part). What to most believers may seem
nothing more than a reasonable request that the nonbeliever
respect their religious practices, in a school context may appear to
the nonbeliever or dissenter to be an attempt to employ the
machinery of the State to enforce a religious orthodoxy.
593
We need not look beyond the circumstances of this case to see the
phenomenon at work. The undeniable fact is that the school
district's supervision and control of a high school graduation
ceremony places public pressure, as well as peer pressure, on
attending students to stand as a group or, at least, maintain
respectful silence during the invocation and benediction. This
pressure, though subtle and indirect, can be as real as any overt
compulsion. Of course, in our culture standing or remaining silent
can signify adherence to a view or simple respect for the views of
CONSTI 2 CASES Free Exercise of Religion
others. And no doubt some persons who have no desire to join a
prayer have little objection to standing as a sign of respect for
those who do. But for the dissenter of high school age, who has a
reasonable perception that she is being forced by the State to pray
in a manner her conscience will not allow, the injury is no less real.
There can be no doubt that for many, if not most, of the students at
the graduation, the act of standing or remaining silent was an
expression of participation in the rabbi's prayer. That was the very
point of the religious exercise. It is of little comfort to a dissenter,
then, to be told that for her the act of standing or remaining in
silence signifies mere respect, rather than participation. What
matters is that, given our social conventions, a reasonable
dissenter in this milieu could believe that the group exercise
signified her own participation or approval of it.
Finding no violation under these circumstances would place
objectors in the dilemma of participating, with all that implies, or
protesting. We do not address whether that choice is acceptable if
the affected citizens are mature adults, but we think the State may
not, consistent with the Establishment Clause, place primary and
secondary school children in this position. Research in psychology
supports the common assumption that adolescents are often
susceptible to pressure from their peers towards conformity, and
that the influence is strongest in matters of social convention.
Brittain, Adolescent Choices and Parent-Peer Cross-Pressures,
594
28 Am. Sociological Rev. 385 (June 1963); Clasen & Brown, The
Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth
and Adolescence 451 (Dec. 1985); Brown, Clasen, & Eicher,
Perceptions of Peer Pressure, Peer Conformity Dispositions, and
Self-Reported Behavior Among Adolescents, 22 Developmental
Psychology 521 (July 1986). To recognize that the choice imposed
by the State constitutes an unacceptable constraint only
acknowledges that the government may no more use social
pressure to enforce orthodoxy than it may use more direct means.
The injury caused by the government's action, and the reason why
Daniel and Deborah Weisman object to it, is that the State, in a
Page 130 of 267
school setting, in effect required participation in a religious
exercise. It is, we concede, a brief exercise during which the
individual can concentrate on joining its message, meditate on her
own religion, or let her mind wander. But the embarrassment and
the intrusion of the religious exercise cannot be refuted by arguing
that these prayers, and similar ones to be said in the future, are of
a de minimis character. To do so would be an affront to the rabbi
who offered them and to all those for whom the prayers were an
essential and profound recognition of divine authority. And for the
same reason, we think that the intrusion is greater than the two
minutes or so of time consumed for prayers like these. Assuming,
as we must, that the prayers were offensive to the student and the
parent who now object, the intrusion was both real and, in the
context of a secondary school, a violation of the objectors' rights.
That the intrusion was in the course of promulgating religion that
sought to be civic or nonsectarian rather than pertaining to one
sect does not lessen the offense or isolation to the objectors. At
best it narrows their number, at worst increases their sense of
isolation and affront. See supra, at 593.
There was a stipulation in the District Court that attendance at
graduation and promotional ceremonies is voluntary. Agreed
Statement of Facts , 41, App. 18. Petitioners and
595
the United States, as amicus, made this a center point of the case,
arguing that the option of not attending the graduation excuses
any inducement or coercion in the ceremony itself. The argument
lacks all persuasion. Law reaches past formalism. And to say a
teenage student has a real choice not to attend her high school
graduation is formalistic in the extreme. True, Deborah could elect
not to attend commencement without renouncing her diploma; but
we shall not allow the case to turn on this point. Everyone knows
that in our society and in our culture high school graduation is one
of life's most significant occasions. A school rule which excuses
attendance is beside the point. Attendance may not be required by
official decree, yet it is apparent that a student is not free to absent
herself from the graduation exercise in any real sense of the term
"voluntary," for absence would require forfeiture of those intangible
CONSTI 2 CASES Free Exercise of Religion
benefits which have motivated the student through youth and all
her high school years. Graduation is a time for family and those
closest to the student to celebrate success and express mutual
wishes of gratitude and respect, all to the end of impressing upon
the young person the role that it is his or her right and duty to
assume in the community and all of its diverse parts.
The importance of the event is the point the school district and the
United States rely upon to argue that a formal prayer ought to be
permitted, but it becomes one of the principal reasons why their
argument must fail. Their contention, one of considerable force
were it not for the constitutional constraints applied to state action,
is that the prayers are an essential part of these ceremonies
because for many persons an occasion of this significance lacks
meaning if there is no recognition, however brief, that human
achievements cannot be understood apart from their spiritual
essence. We think the Government's position that this interest
suffices to force students to choose between compliance or
forfeiture demonstrates fundamental inconsistency in its
argumentation. It fails to acknowledge that what for many of
596
Deborah's classmates and their parents was a spiritual imperative
was for Daniel and Deborah Weisman religious conformance
compelled by the State. While in some societies the wishes of the
majority might prevail, the Establishment Clause of the First
Amendment is addressed to this contingency and rejects the
balance urged upon us. The Constitution forbids the State to exact
religious conformity from a student as the price of attending her
own high school graduation. This is the calculus the Constitution
commands.
The Government's argument gives insufficient recognition to the
real conflict of conscience faced by the young student. The essence
of the Government's position is that with regard to a civic, social
occasion of this importance it is the objector, not the majority, who
must take unilateral and private action to avoid compromising
religious scruples, hereby electing to miss the graduation exercise.
This turns conventional First Amendment analysis on its head. It is
Page 131 of 267
a tenet of the First Amendment that the State cannot require one of
its citizens to forfeit his or her rights and benefits as the price of
resisting conformance to state-sponsored religious practice. To say
that a student must remain apart from the ceremony at the
opening invocation and closing benediction is to risk compelling
conformity in an environment analogous to the classroom setting,
where we have said the risk of compulsion is especially high.
See supra, at 593-594. Just as in Engel v. Vitale, 370 U. S., at 430,
and School Dist. of Abington v. Schempp, 374 U. S., at 224-225,
where we found that provisions within the challenged legislation
permitting a student to be voluntarily excused from attendance or
participation in the daily prayers did not shield those practices from
invalidation, the fact that attendance at the graduation ceremonies
is voluntary in a legal sense does not save the religious exercise.
Inherent differences between the public school system and a
session of a state legislature distinguish this case
from Marsh v. Chambers, 463 U. S. 783 (1983). The considera-
597
tions we have raised in objection to the invocation and benediction
are in many respects similar to the arguments we considered
in Marsh. But there are also obvious differences. The atmosphere at
the opening of a session of a state legislature where adults are free
to enter and leave with little comment and for any number of
reasons cannot compare with the constraining potential of the one
school event most important for the student to attend. The
influence and force of a formal exercise in a school graduation are
far greater than the prayer exercise we condoned
in Marsh. The Marsh majority in fact gave specific recognition to
this distinction and placed particular reliance on it in upholding the
prayers at issue there. 463 U. S., at 792. Today's case is different.
At a high school graduation, teachers and principals must and do
retain a high degree of control over the precise contents of the
program, the speeches, the timing, the movements, the dress, and
the decorum of the students. Bethel School Dist. No.
403 v. Fraser, 478 U. S. 675 (1986). In this atmosphere the state-
imposed character of an invocation and benediction by clergy
selected by the school combine to make the prayer a state-
CONSTI 2 CASES Free Exercise of Religion
sanctioned religious exercise in which the student was left with no
alternative but to submit. This is different from Marsh and suffices
to make the religious exercise a First Amendment violation. Our
Establishment Clause jurisprudence remains a delicate and fact-
sensitive one, and we cannot accept the parallel relied upon by
petitioners and the United States between the facts of Marsh and
the case now before us. Our decisions in Engel v. Vitale,
supra, and School Dist. of Abington v. Schempp, supra, require us
to distinguish the public school context.
We do not hold that every state action implicating religion is invalid
if one or a few citizens find it offensive. People may take offense at
all manner of religious as well as nonreligious messages, but
offense alone does not in every case show a violation. We know too
that sometimes to endure
598
social isolation or even anger may be the price of conscience or
nonconformity. But, by any reading of our cases, the conformity
required of the student in this case was too high an exaction to
withstand the test of the Establishment Clause. The prayer
exercises in this case are especially improper because the State
has in every practical sense compelled attendance and
participation in an explicit religious exercise at an event of singular
importance to every student, one the objecting student had no real
alternative to avoid.
Our jurisprudence in this area is of necessity one of linedrawing, of
determining at what point a dissenter's rights of religious freedom
are infringed by the State.
"The First Amendment does not prohibit practices which by any
realistic measure create none of the dangers which it is designed to
prevent and which do not so directly or substantially involve the
state in religious exercises or in the favoring of religion as to have
meaningful and practical impact. It is of course true that great
consequences can grow from small beginnings, but the measure of
constitutional adjudication is the ability and willingness to
Page 132 of 267
distinguish between real threat and mere shadow." School Dist. of
Abington v. Schempp, supra, at 308 (Goldberg, J., concurring).
Our society would be less than true to its heritage if it lacked
abiding concern for the values of its young people, and we
acknowledge the profound belief of adherents to many faiths that
there must be a place in the student's life for precepts of a morality
higher even than the law we today enforce. We express no hostility
to those aspirations, nor would our oath permit us to do so. A
relentless and allpervasive attempt to exclude religion from every
aspect of public life could itself become inconsistent with the
Constitution. See School Dist. of Abington, supra, at 306 (Goldberg,
J., concurring). We recognize that, at graduation time and
throughout the course of the educational process, there will
599
be instances when religious values, religious practices, and
religious persons will have some interaction with the public schools
and their students. See Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990). But these
matters, often questions of accommodation of religion, are not
before us. The sole question presented is whether a religious
exercise may be conducted at a graduation ceremony in
circumstances where, as we have found, young graduates who
object are induced to conform. No holding by this Court suggests
that a school can persuade or compel a student to participate in a
religious exercise. That is being done here, and it is forbidden by
the Establishment Clause of the First Amendment.
For the reasons we have stated, the judgment of the Court of
Appeals is
Affirmed.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE
O'CONNOR join, concurring.
CONSTI 2 CASES Free Exercise of Religion
Nearly half a century of review and refinement of Establishment
Clause jurisprudence has distilled one clear understanding:
Government may neither promote nor affiliate itself with any
religious doctrine or organization, nor may it obtrude itself in the
internal affairs of any religious institution. The application of these
principles to the present case mandates the decision reached today
by the Court.
I
This Court first reviewed a challenge to state law under the
Establishment Clause in Everson v. Board of Ed. of Ewing, 330 U. S.
1 (1947).1 Relying on the history of the
1 A few earlier cases involving federal laws touched on
interpretation of the Establishment Clause. In Reynolds v. United
States, 98 U. S. 145 (1879), and Davis v. Beason, 133 U. S.
333(1890), the Court considered the Clause in the context of
federal laws prohibiting bigamy. The Court in Reynolds accepted
Thomas Jefferson's letter to the Danbury Baptist Asso-
600
Clause, and the Court's prior analysis, Justice Black outlined the
considerations that have become the touchstone of Establishment
Clause jurisprudence: Neither a State nor the Federal Government
can pass laws which aid one religion, aid all religions, or prefer one
religion over another. Neither a State nor the Federal Government,
openly or secretly, can participate in the affairs of any religious
organization and vice versa.2 "In the words of Jefferson, the clause
ciation "almost as an authoritative declaration of the scope and
effect" of the First Amendment. 98 U. S., at 164. In that letter
Jefferson penned his famous lines that the Establishment Clause
built "a wall of separation between church and State." Ibid.
Davis considered that "[t]he first amendment to the Constitution ...
was intended ... to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect." 133 U. S., at
342. In another case, Bradfield v. Roberts, 175 U. S. 291 (1899), the
Page 133 of 267
Court held that it did not violate the Establishment Clause for
Congress to construct a hospital building for caring for poor
patients, although the hospital was managed by sisters of the
Roman Catholic Church. The Court reasoned: "That the influence of
any particular church may be powerful over the members of a non-
sectarian and secular corporation, incorporated for a certain
defined purpose and with clearly stated powers, is surely not
sufficient to convert such a corporation into a religious or sectarian
body." Id., at 298. Finally, in 1908 the Court held that "the spirit of
the Constitution" did not prohibit the Indians from using their
money, held by the United States Government, for religious
education. See Quick Bear v. Leupp, 210 U. S. 50, 81.
2 The Court articulated six examples of paradigmatic practices that
the Establishment Clause prohibits: "The 'establishment of religion'
clause of the First Amendment means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or to
remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they
may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly, participate in the
affairs of any religious
601
against establishment of religion by law was intended to erect 'a
wall of separation between church and State.'" Everson, 330 U. S.,
at 16 (quoting Reynolds v. United States, 98 U. S. 145, 164 (1879)).
The dissenters agreed: "The Amendment's purpose ... was to create
a complete and permanent separation of the spheres of religious
activity and civil authority by comprehensively forbidding every
form of public aid or support for religion." 330 U. S., at 31-32
(Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton,
JJ.).
CONSTI 2 CASES Free Exercise of Religion
In Engel v. Vitale, 370 U. S. 421 (1962), the Court considered for
the first time the constitutionality of prayer in a public school.
Students said aloud a short prayer selected by the State Board of
Regents: "'Almighty God, we acknowledge our dependence upon
Thee, and we beg Thy blessings upon us, our parents, our teachers
and our Country.'" Id., at 422. Justice Black, writing for the Court,
again made clear that the First Amendment forbids the use of the
power or prestige of the government to control, support, or
influence the religious beliefs and practices of the American people.
Although the prayer was "denominationally neutral" and "its
observance on the part of the students [was] voluntary," id., at
430, the Court found that it violated this essential precept of the
Establishment Clause.
A year later, the Court again invalidated governmentsponsored
prayer in public schools in School Dist. of Abington v. Schempp, 374
U. S. 203 (1963). In Schempp, the school day for Baltimore,
Maryland, and Abington Township, Pennsylvania, students began
with a reading from the Bible, or a recitation of the Lord's Prayer, or
both. After a thorough review of the Court's prior Establishment
Clause cases, the Court concluded:
organizations or groups and vice versa." Everson v. Board of Ed. of
Ewing, 330 U. S., at 15.
602
"[T]he Establishment Clause has been directly considered by this
Court eight times in the past score of years and, with only one
Justice dissenting on the point, it has consistently held that the
clause withdrew all legislative power respecting religious belief or
the expression thereof. The test may be stated as follows: what are
the purpose and the primary effect of the enactment? If either is
the advancement or inhibition of religion, then the enactment
exceeds the scope of legislative power as circumscribed by the
Constitution." Id., at 222.
Because the schools' opening exercises were governmentsponsored
religious ceremonies, the Court found that the primary effect was
Page 134 of 267
the advancement of religion and held, therefore, that the activity
violated the Establishment Clause. Id., at 223-224.
Five years later, the next time the Court considered whether
religious activity in public schools violated the Establishment
Clause, it reiterated the principle that government "may not aid,
foster, or promote one religion or religious theory against another
or even against the militant opposite." Epperson v. Arkansas, 393
U. S. 97, 104 (1968). "'If [the purpose or primary effect] is the
advancement or inhibition of religion then the enactment exceeds
the scope of legislative power as circumscribed by the
Constitution.'" Id., at 107 (quoting Schempp, 374 U. S., at 222).
Finding that the Arkansas law aided religion by preventing the
teaching of evolution, the Court invalidated it.
In 1971, Chief Justice Burger reviewed the Court's past decisions
and found: "Three ... tests may be gleaned from our
cases." Lemon v. Kurtzman, 403 U. S. 602, 612. In order for a
statute to survive an Establishment Clause challenge, "[f]irst, the
statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor
inhibits religion; finally the statute must not foster an excessive
government entanglement with
603
religion." Id., at 612-613 (internal quotation marks and citations
omitted).3 After Lemon, the Court continued to rely on these basic
principles in resolving Establishment Clause disputes.4
Application of these principles to the facts of this case is
straightforward. There can be "no doubt" that the "invocation of
God's blessings" delivered at Nathan Bishop Middle School "is a
religious activity." Engel, 370 U. S., at 424. In the words
of Engel, the rabbi's prayer "is a solemn avowal of divine faith and
supplication for the blessings of the Almighty. The nature of such a
prayer has always been religious." Id., at 424-425. The question
then is whether the government has "plac[ed] its official stamp of
approval" on the prayer. Id., at 429. As the Court ably
CONSTI 2 CASES Free Exercise of Religion
demonstrates, when the government "compose[s] official
prayers," id., at 425, selects the member of the clergy to deliver
the prayer, has the prayer delivered at a public school event that is
planned, supervised, and given by school officials, and pres-
3 The final prong, excessive entanglement, was a focus
of Walz v. Tax Comm'n of New York City, 397 U. S. 664, 674 (1970),
but harkens back to the final example in Everson: "Neither a state
nor the Federal Government can, openly or secretly, participate in
the affairs of any religious organizations or groups and vice versa."
Everson, 330 U. S., at 16. The discussion in Everson reflected the
Madisonian concern that secular and religious authorities must not
interfere with each other's respective spheres of choice and
influence. See generally The Complete Madison 298-312 (S.
Padover ed. 1953).
4 Since 1971, the Court has decided 31 Establishment Clause
cases. In only one instance, the decision of Marsh v. Chambers, 463
U. S. 783 (1983), has the Court not rested its decision on the basic
principles described in Lemon. For example, in the most recent
Establishment Clause case, Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990), the Court
applied the three-part Lemon analysis to the Equal Access Act,
which made it unlawful for public secondary schools to deny equal
access to any student wishing to hold religious meetings. Id., at
248-253 (plurality opinion); id., at 262 (Marshall, J., concurring in
judgment). In no case involving religious activities in public schools
has the Court failed to apply vigorously the Lemon factors.
604
sures students to attend and participate in the prayer, there can be
no doubt that the government is advancing and promoting
religion.5 As our prior decisions teach us, it is this that the
Constitution prohibits.
II
Page 135 of 267
I join the Court's opinion today because I find nothing in it
inconsistent with the essential precepts of the Establishment
Clause developed in our precedents. The Court holds that the
graduation prayer is unconstitutional because the State "in effect
required participation in a religious exercise." Ante, at 594.
Although our precedents make clear that proof of government
coercion is not necessary to prove an Establishment Clause
violation, it is sufficient. Government pressure to participate in a
religious activity is an obvious indication that the government is
endorsing or promoting religion.
But it is not enough that the government restrain from compelling
religious practices: It must not engage in them either.
See Schempp, 374 U. S., at 305 (Goldberg, J., concurring). The
Court repeatedly has recognized that a violation of the
Establishment Clause is not predicated on coercion. See, e. g.,
id., at 223; id., at 229 (Douglas, J.,
concurring); Wallace v. Jaffree, 472 U. S. 38, 72 (1985) (O'CONNOR,
J., concurring in judgment) ("The decisions
[in Engel and Schempp] acknowledged the coercion implicit under
the statutory schemes, but they expressly turned only on the fact
that the government was sponsoring a manifestly religious
exercise" (citation omitted)); Committee for Public Ed. & Religious
Liberty v. Nyquist, 413 U. S. 756, 786 (1973) ("[P]roof of coercion ...
[is] not a necessary element of any claim under the Establishment
Clause"). The Establishment Clause proscribes public schools from
"conveying or attempting to con-
5 In this case, the religious message it promotes is specifically
JudeoChristian. The phrase in the benediction: "We must each
strive to fulfill what you require of us all, to do justly, to love mercy,
to walk humbly" obviously was taken from the Book of the Prophet
Micah, ch. 6, v. 8.
605
vey a message that religion or a particular religious belief
is favored or preferred," County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593
(1989) (internal quotation marks omitted; emphasis in original),
CONSTI 2 CASES Free Exercise of Religion
even if the schools do not actually "impos[e] pressure upon a
student to participate in a religious activity."6 Board of Ed. of
Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226,
261 (1990) (KENNEDY, J., concurring in part and concurring in
judgment).
The scope of the Establishment Clause's prohibitions developed in
our case law derives from the Clause's purposes. The First
Amendment encompasses two distinct guarantees-the government
shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof-both with the common purpose
of securing religious liberty.7 Through vigorous enforcement of both
Clauses, we "promote and assure the fullest possible scope of
religious liberty and tolerance for all and ... nurture the conditions
which secure the best hope of attainment of that
end." Schempp, 374 U. S., at 305 (Goldberg, J., concurring).
There is no doubt that attempts to aid religion through government
coercion jeopardize freedom of conscience. Even subtle pressure
diminishes the right of each individual to choose voluntarily what to
believe. Representative Carroll explained during congressional
debate over the Estab-
6 As a practical matter, of course, anytime the government
endorses a religious belief there will almost always be some
pressure to conform. "When the power, prestige and financial
support of government is placed behind a particular religious belief,
the indirect coercive pressure upon religious minorities to conform
to the prevailing officially approved religion is
plain." Engel v. Vitale, 370 U. S. 421, 431 (1962).
7 See, e. g., Everson, 330 U. S., at 40 (Rutledge, J., dissenting) ("
'Establishment' and 'free exercise' were correlative and coextensive
ideas, representing only different facets of the single great and
fundamental freedom"); School Dist. of Abington v. Schempp, 374
U. S. 203, 227 (1963) (Douglas, J., concurring); id., at 305
(Goldberg, J., concurring); Wallace v. Jaffree, 472 U. S. 38, 50
(1985).
Page 136 of 267
606
lishment Clause: "[T]he rights of conscience are, in their nature, of
peculiar delicacy, and will little bear the gentlest touch of
governmental hand." 1 Annals of Congo 757 (1789).
Our decisions have gone beyond prohibiting coercion, however,
because the Court has recognized that "the fullest possible scope of
religious liberty," Schempp, 374 U. S., at 305 (Goldberg, J.,
concurring), entails more than freedom from coercion. The
Establishment Clause protects religious liberty on a grand scale; it
is a social compact that guarantees for generations a democracy
and a strong religious community-both essential to safeguarding
religious liberty. "Our fathers seem to have been perfectly sincere
in their belief that the members of the Church would be more
patriotic, and the citizens of the State more religious, by keeping
their respective functions entirely separate." Religious Liberty, in
Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885)
(Chief Justice of the Commonwealth of Pennsylvania).8
The mixing of government and religion can be a threat to free
government, even if no one is forced to participate. When the
government puts its imprimatur on a particular religion, it conveys
a message of exclusion to all those who do not adhere to the
favored beliefs.9 A government cannot
8 See also Engel, 370 U. S., at 431 (The Clause's "first and most
immediate purpose rested on the belief that a union of government
and religion tends to destroy government and to degrade
religion"); Illinois ex rel. McCollum v. Board of Ed. of School Dist.
No. 71, Champaign Cty., 333 U. S. 203, 212 (1948) ("[T]he First
Amendment rests upon the premise that both religion and
government can best work to achieve their lofty aims if each is left
free from the other within its respective sphere").
9 "[T]he Establishment Clause is infringed when the government
makes adherence to religion relevant to a person's standing in the
political community. Direct government action endorsing religion or
a particular religious practice is invalid under this approach
because it sends a message to nonadherents that they are
outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders,
CONSTI 2 CASES Free Exercise of Religion
favored members of the political
community." Wallace v. Jaffree, 472 U. S., at 69 (O'CONNOR, J.,
concurring in judgment) (internal quotation marks omitted).
607
be premised on the belief that all persons are created equal when it
asserts that God prefers some. Only "[a]nguish, hardship and bitter
strife" result "when zealous religious groups struggl[e] with one
another to obtain the Government's stamp of approval." Engel, 370
U. S., at 429; see also Lemon, 403 U. S., at 622-
623; Aguilar v. Felton, 473 U. S. 402, 416 (1985) (Powell, J.,
concurring).l0 Such a struggle can "strain a political system to the
breaking point." Walz v. Tax Comm'n of New York City, 397 U. S.
664, 694 (1970) (opinion of Harlan, J.).
When the government arrogates to itself a role in religious affairs, it
abandons its obligation as guarantor of democracy. Democracy
requires the nourishment of dialog and dissent, while religious faith
puts its trust in an ultimate divine authority above all human
deliberation. When the government appropriates religious truth, it
"transforms rational debate into theological decree." Nuechterlein,
Note, The Free Exercise Boundaries of Permissible Accommodation
Under the Establishment Clause, 99 Yale L. J. 1127, 1131 (1990).
Those who disagree no longer are questioning the policy judgment
of the elected but the rules of a higher authority who is beyond
reproach.
10 Sigmund Freud expressed it this way: "a religion, even if it calls
itself the religion of love, must be hard and unloving to those who
do not belong to it." S. Freud, Group Psychology and the Analysis of
the Ego 51 (1922). James Madison stated the theory even more
strongly in his "Memorial and Remonstrance" against a bill
providing tax funds to religious teachers: "It degrades from the
equal rank of Citizens all those whose opinions in Religion do not
bend to those of the Legislative authority. Distant as it may be, in
its present form, from the Inquisition it differs from it only in
degree. The one is the first step, the other the last in the career of
intolerance." The Complete Madison, at 303. Religion has not lost
its power to engender divisiveness. "Of all the issues the ACLU
Page 137 of 267
takes on-reproductive rights, discrimination, jail and prison
conditions, abuse of kids in the public schools, police brutality, to
name a few-by far the most volatile issue is that of school prayer.
Aside from our efforts to abolish the death penalty, it is the only
issue that elicits death threats." Parish, Graduation Prayer Violates
the Bill of Rights, 4 Utah Bar J. 19 (June/July 1991).
608
Madison warned that government officials who would use religious
authority to pursue secular ends "exceed the commission from
which they derive their authority and are Tyrants. The People who
submit to it are governed by laws made neither by themselves, nor
by an authority derived from them, and are slaves." Memorial and
Remonstrance against Religious Assessments (1785), in The
Complete Madison 300 (S. Pad over ed. 1953). Democratic
government will not last long when proclamation replaces
persuasion as the medium of political exchange.
Likewise, we have recognized that "[r]eligion flourishes in greater
purity, without than with the aid of Gov[ernment]." 11 Id., at 309.
To "make room for as wide a variety of beliefs and creeds as the
spiritual needs of man deem necessary," Zorach v. Clauson, 343 U.
S. 306, 313 (1952), the government must not align itself with
anyone of them. When the government favors a particular religion
or sect, the disadvantage to all others is obvious, but even the
favored religion may fear being "taint[ed] ... with a corrosive
secularism." School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 385
(1985). The favored religion may be compromised as political
figures reshape the religion's beliefs for their own purposes; it may
be reformed as government largesse brings government
regulation.12 Keeping religion in the hands of private groups
minimizes state intrusion on religious choice and best enables each
religion to "flourish according to the
11 The view that the Establishment Clause was primarily a vehicle
for protecting churches was expounded initially by Roger Williams.
"[W]ordly corruptions ... might consume the churches if sturdy
fences against the wilderness were not maintained." M. Howe, The
Garden and the Wilderness 6 (1965).
CONSTI 2 CASES Free Exercise of Religion
12 "[B]ut when a religion contracts an alliance of this nature, I do
not hesitate to affirm that it commits the same error as a man who
should sacrifice his future to his present welfare; and in obtaining a
power to which it has no claim, it risks that authority which is
rightfully its own." 1 A. de Tocqueville, Democracy in America 315
(H. Reeve transl. 1900).
609
zeal of its adherents and the appeal of its dogma." Zorach, 343 U.
S., at 313.
It is these understandings and fears that underlie our
Establishment Clause jurisprudence. We have believed that
religious freedom cannot exist in the absence of a free democratic
government, and that such a government cannot endure when
there is fusion between religion and the political regime. We have
believed that religious freedom cannot thrive in the absence of a
vibrant religious community and that such a community cannot
prosper when it is bound to the secular. And we have believed that
these were the animating principles behind the adoption of the
Establishment Clause. To that end, our cases have prohibited
government endorsement of religion, its sponsorship, and active
involvement in religion, whether or not citizens were coerced to
conform.
I remain convinced that our jurisprudence is not misguided, and
that it requires the decision reached by the Court today.
Accordingly, I join the Court in affirming the judgment of the Court
of Appeals.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE
O'CONNOR join, concurring.
I join the whole of the Court's opinion, and fully agree that prayers
at public school graduation ceremonies indirectly coerce religious
observance. I write separately nonetheless on two issues of
Establishment Clause analysis that underlie my independent
resolution of this case: whether the Clause applies to governmental
Page 138 of 267
practices that do not favor one religion or denomination over
others, and whether state coercion of religious conformity, over and
above state endorsement of religious exercise or belief, is a
necessary element of an Establishment Clause violation.
I that religious beliefs worthy of respect are the product of free and
Forty-five years ago, this Court announced a basic principle of
constitutional law from which it has not strayed: the
610
Establishment Clause forbids not only state practices that "aid one
religion ... or prefer one religion over another," but also those that
"aid all religions." Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15
(1947). Today we reaffirm that principle, holding that the
Establishment Clause forbids state-sponsored prayers in public
school settings no matter how nondenominational the prayers may
be. In barring the State from sponsoring generically theistic prayers
where it could not sponsor sectarian ones, we hold true to a line of
precedent from which there is no adequate historical case to
depart.
A discrimination among sects, a majority of the Court found that its
Since Everson, we have consistently held the Clause applicable no
less to governmental acts favoring religion generally than to acts
favoring one religion over others.1 Thus, in Engel v. Vitale, 370 U.
S. 421 (1962), we held that the public schools may not subject their
students to readings of any prayer, however "denominationally
neutral." Id., at 430. More recently, in Wallace v. Jaffree, 472 U. S.
38 (1985), we held that an Alabama moment-of-silence statute
passed for the sole purpose of "returning voluntary prayer to public
schools," id., at 57, violated the Establishment Clause even though
it did not encourage students to pray to any particular deity. We
said that "when the underlying principle has been examined in the
crucible of litigation, the Court has unambiguously concluded that
the individual freedom of conscience protected by the First
CONSTI 2 CASES Free Exercise of Religion
Amendment embraces the right to select any religious faith or none
at all." Id., at 52-53. This conclusion, we held,
"derives support not only from the interest in respecting the
individual's freedom of conscience, but also from the conviction
voluntary choice by the faithful,
1 Cf. Larson v. Valente, 456 U. S. 228 (1982) (subjecting
discrimination against certain religious organizations to test of
strict scrutiny).
611
and from recognition of the fact that the political interest in
forestalling intolerance extends beyond intolerance among
Christian sects-or even intolerance among 'religions' -to encompass
intolerance of the disbeliever and the uncertain." Id., at 53-54
(footnotes omitted).
Likewise, in Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989), we
struck down a state tax exemption benefiting only religious
periodicals; even though the statute in question worked no
preference for religious publications over all other kinds "effectively
endorses religious belief." Id., at 17 (plurality opinion); see id., at 28
(BLACKMUN, J., concurring in judgment) ("A statutory preference for
the dissemination of religious ideas offends our most basic
understanding of what the Establishment Clause is all about and
hence is constitutionally intolerable"). And
in Torcaso v. Watkins, 367 U. S. 488 (1961), we struck down a
provision of the Maryland Constitution requiring public officials to
declare a "'belief in the existence of God,'" id., at 489, reasoning
that, under the Religion Clauses of the First Amendment, "neither a
State nor the Federal Government ... can constitutionally pass laws
or impose requirements which aid all religions as against non-
believers ... ," id., at 495. See also Epperson v. Arkansas, 393 U. S.
97, 104 (1968) ("The First Amendment mandates governmental
neutrality between religion and religion, and between religion and
Page 139 of 267
nonreligion"); School Dist. of Abington v. Schempp, 374 U. S. 203,
216 (1963) ("this Court has rejected unequivocally the contention
that the Establishment Clause forbids only governmental
preference of one religion over another"); id., at 319320 (Stewart,
J., dissenting) (the Clause applies "to each of us, be he Jew or
Agnostic, Christian or Atheist, Buddhist or Freethinker").
Such is the settled law. Here, as elsewhere, we should stick to it
absent some compelling reason to discard it. See
612
Arizona v. Rumsey, 467 U. S. 203, 212
(1984); Payne v. Tennessee, 501 U. S. 808, 842 (1991) (SOUTER, J.,
concurring).
B Latter-day Saints v. Amos, 483 U. S. 327 (1987) (upholding
Some have challenged this precedent by reading the Establishment
Clause to permit "nonpreferential" state promotion of religion. The
challengers argue that, as originally understood by the Framers,
"[t]he Establishment Clause did not require government neutrality
between religion and irreligion nor did it prohibit the Federal
Government from providing nondiscriminatory aid to
religion." Wallace, supra, at 106 (REHNQUIST, J., dissenting); see
also R. Cord, Separation of Church and State: Historical Fact and
Current Fiction (1988). While a case has been made for this
position, it is not so convincing as to warrant reconsideration of our
settled law; indeed, I find in the history of the Clause's textual
development a more powerful argument supporting the Court's
jurisprudence following Everson.
When James Madison arrived at the First Congress with a series of
proposals to amend the National Constitution, one of the provisions
read that "[t]he civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in
any manner, or on any pretext, infringed." 1 Annals of Congo 434
(1789). Madison's language did not last long. It was sent to a Select
CONSTI 2 CASES Free Exercise of Religion
Committee of the House, which, without explanation, changed it to
read that "no religion shall be established by law, nor shall the
equal rights of conscience be infringed." Id., at 729. Thence the
proposal went to the Committee of the Whole, which was in turn
dissatisfied with the Select Committee's language and adopted an
alternative proposed by Samuel Livermore of New Hampshire:
"Congress shall make no laws touching religion, or infringing the
rights of conscience." See id., at 731. Livermore's proposal would
have forbidden laws having anything to do with religion and was
thus not
613
only far broader than Madison's version, but broader even than the
scope of the Establishment Clause as we now understand it. See, e.
g., Corporation of Presiding Bishop of Church of Jesus Christ of
legislative exemption of religious groups from certain obligations
under civil rights laws).
The House rewrote the amendment once more before sending it to
the Senate, this time adopting, without recorded debate, language
derived from a proposal by Fisher Ames of Massachusetts:
"Congress shall make no law establishing Religion, or prohibiting
the free exercise thereof, nor shall the rights of conscience be
infringed." 1 Documentary History of the First Federal Congress of
the United States of America 136 (Senate Journal) (L. de Pauw ed.
1972); see 1 Annals of Congo 765 (1789). Perhaps, on further
reflection, the Representatives had thought Livermore's proposal
too expansive, or perhaps, as one historian has suggested, they
had simply worried that his language would not "satisfy the
demands of those who wanted something said specifically against
establishments of religion." L. Levy, The Establishment Clause 81
(1986) (hereinafter Levy). We do not know; what we do know is that
the House rejected the Select Committee's version, which arguably
ensured only that "no religion" enjoyed an official preference over
others, and deliberately chose instead a prohibition extending to
laws establishing "religion" in general.
Page 140 of 267
The sequence of the Senate's treatment of this House proposal, and
the House's response to the Senate, confirm that the Framers
meant the Establishment Clause's prohibition to encompass
nonpreferential aid to religion. In September 1789, the Senate
considered a number of provisions that would have permitted such
aid, and ultimately it adopted one of them. First, it briefly
entertained this language: "Congress shall make no law
establishing One Religious Sect or Society in preference to others,
nor shall the rights of conscience be infringed." See 1 Documentary
History, at 151
614
(Senate Journal); id., at 136. After rejecting two minor amendments
to that proposal, see id., at 151, the Senate dropped it altogether
and chose a provision identical to the House's proposal, but without
the clause protecting the "rights of conscience," ibid. With no
record of the Senate debates, we cannot know what prompted
these changes, but the record does tell us that, six days later, the
Senate went half circle and adopted its narrowest language yet:
"Congress shall make no law establishing articles of faith or a mode
of worship, or prohibiting the free exercise of religion." Id., at 166.
The Senate sent this proposal to the House along with its versions
of the other constitutional amendments proposed.
Though it accepted much of the Senate's work on the Bill of Rights,
the House rejected the Senate's version of the Establishment
Clause and called for a joint conference committee, to which the
Senate agreed. The House conferees ultimately won out,
persuading the Senate to accept this as the final text of the
Religion Clauses: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof."
What is remarkable is that, unlike the earliest House drafts or the
final Senate proposal, the prevailing language is not limited to laws
respecting an establishment of "a religion," "a national religion,"
"one religious sect," or specific "articles of faith." 2 The Framers re-
2 Some commentators have suggested that by targeting laws
respecting "an" establishment of religion, the Framers adopted the
very nonpreferentialist position whose much clearer articulation
CONSTI 2 CASES Free Exercise of Religion
they repeatedly rejected. See, e. g., R. Cord, Separation of Church
and State 11-12 (1988). Yet the indefinite article before the word
"establishment" is better seen as evidence that the Clause forbids
any kind of establishment, including a nonpreferential one. If the
Framers had wished, for some reason, to use the indefinite term to
achieve a narrow meaning for the Clause, they could far more aptly
have placed it before the word "religion." See Laycock,
"Nonpreferential" Aid to Religion: A False Claim About Original
Intent, 27 Wm. & Mary L. Rev. 875, 884-885 (1986) (hereinafter
Laycock, "Nonpreferential" Aid).
615
peatedly considered and deliberately rejected such narrow
language and instead extended their prohibition to state support
for "religion" in general.
Implicit in their choice is the distinction between preferential and
nonpreferential establishments, which the weight of evidence
suggests the Framers appreciated. See, e. g., Laycock,
"Nonpreferential" Aid 902-906; Levy 91-119. But cf. T. Curry, The
First Freedoms 208-222 (1986). Of particular note, the Framers
were vividly familiar with efforts in the Colonies and, later, the
States to impose general, nondenominational assessments and
other incidents of ostensibly ecumenical establishments. See
generally Levy 1-62. The Virginia statute for religious freedom,
written by Jefferson and sponsored by Madison, captured the
separationist response to such measures. Condemning all
establishments, however nonpreferentialist, the statute broadly
guaranteed that "no man shall be compelled to frequent or support
any religious worship, place, or ministry whatsoever," including his
own. Act for Establishing Religious Freedom (1785), in 5 The
Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987).
Forcing a citizen to support even his own church would, among
other things, deny "the ministry those temporary rewards, which
proceeding from an approbation of their personal conduct, are an
additional incitement to earnest and unremitting labours for the
instruction of mankind." Id., at 84. In general, Madison later added,
"religion & Govt. will both exist in greater purity, the less they are
Page 141 of 267
mixed together." Letter from J. Madison to E. Livingston (July 10,
1822), in 5 The Founders' Constitution, at 105, 106.
What we thus know of the Framers' experience underscores the
observation of one prominent commentator, that confining the
Establishment Clause to a prohibition on preferential aid "requires a
premise that the Framers were extraordinarily bad drafters-that
they believed one thing but adopted language that said something
substantially different, and that they did so after repeatedly
attending to the
616
choice of language." Laycock, "Nonpreferential" Aid 882883; see
also County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 647648 (1989) (opinion of
STEVENS, J.). We must presume, since there is no conclusive
evidence to the contrary, that the Framers embraced the
significance of their textual judgment.3 Thus, on balance, history
neither contradicts nor warrants reconsideration of the settled
principle that the Establishment Clause forbids support for religion
in general no less than support for one religion or some.
C from the King James version of Micah, ch. 6, v. 8. At some
While these considerations are, for me, sufficient to reject the
nonpreferentialist position, one further concern animates my
judgment. In many contexts, including this one, nonpreferentialism
requires some distinction between "sectarian" religious practices
and those that would be, by some measure, ecumenical enough to
pass Establishment Clause muster. Simply by requiring the enquiry,
nonpreferentialists invite the courts to engage in comparative
theology. I can hardly imagine a subject less amenable to the
compe-
3 In his dissent in Wallace v. Jaffree, 472 U. S. 38 (1985), THE CHIEF
JUSTICE rested his nonpreferentialist interpretation partly on the
postratification actions of the early National Government. Aside
from the willingness of some (but not all) early Presidents to issue
CONSTI 2 CASES Free Exercise of Religion
ceremonial religious proclamations, which were at worst trivial
breaches of the Establishment Clause, see infra, at 630-631, he
cited such seemingly preferential aid as a treaty provision, signed
by Jefferson, authorizing federal subsidization of a Roman Catholic
priest and church for the Kaskaskia Indians. 472 U. S., at 103. But
this proves too much, for if the Establishment Clause permits a
special appropriation of tax money for the religious activities of a
particular sect, it forbids virtually nothing. See Laycock,
"Nonpreferential" Aid 915. Although evidence of historical practice
can indeed furnish valuable aid in the interpretation of
contemporary language, acts like the one in question prove only
that public officials, no matter when they serve, can turn a blind
eye to constitutional principle. See infra, at 626.
617
tence of the federal judiciary, or more deliberately to be avoided
where possible.
This case is nicely in point. Since the nonpreferentiality of a prayer
must be judged by its text, JUSTICE BLACKMUN pertinently
observes, ante, at 604, n. 5, that Rabbi Gutterman drew his
exhortation" '[t]o do justly, to love mercy, to walk humbly'" straight
undefinable point, the similarities between a state-sponsored
prayer and the sacred text of a specific religion would so closely
identify the former with the latter that even a nonpreferentialist
would have to concede a breach of the Establishment Clause. And
even if Micah's thought is sufficiently generic for most believers, it
still embodies a straightforwardly theistic premise, and so does the
rabbi's prayer. Many Americans who consider themselves religious
are not theistic; some, like several of the Framers, are deists who
would question Rabbi Gutterman's plea for divine advancement of
the country's political and moral good. Thus, a nonpreferentialist
who would condemn subjecting public school graduates to, say, the
Anglican liturgy would still need to explain why the government's
preference for theistic over nontheistic religion is constitutional.
Nor does it solve the problem to say that the State should promote
a "diversity" of religious views; that position would necessarily
Page 142 of 267
compel the government and, inevitably, the courts to make wholly
inappropriate judgments about the number of religions the State
should sponsor and the relative frequency with which it should
sponsor each. In fact, the prospect would be even worse than that.
As Madison observed in criticizing religious Presidential
proclamations, the practice of sponsoring religious messages tends,
over time, "to narrow the recommendation to the standard of the
predominant sect." Madison's "Detached Memoranda," 3 Wm. &
Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's
"Detached Memoranda"). We have not changed much since the
days of Madison, and the judiciary should not
618
willingly enter the political arena to battle the centripetal force
leading from religious pluralism to official preference for the faith
with the most votes.
II
Petitioners rest most of their argument on a theory that, whether or
not the Establishment Clause permits extensive nonsectarian
support for religion, it does not forbid the state to sponsor
affirmations of religious belief that coerce neither support for
religion nor participation in religious observance. I appreciate the
force of some of the arguments supporting a "coercion" analysis of
the Clause. See generally County of Allegheny, supra, at 655-679
(opinion of KENNEDY, J.); McConnell, Coercion: The Lost Element of
Establishment, 27 Wm. & Mary L. Rev. 933 (1986). But we could not
adopt that reading without abandoning our settled law, a course
that, in my view, the text of the Clause would not readily permit.
Nor does the extratextual evidence of original meaning stand so
unequivocally at odds with the textual premise inherent in existing
precedent that we should fundamentally reconsider our course.
A things, "[t]he symbolic union of church and state inherent in the
Over the years, this Court has declared the invalidity of many
noncoercive state laws and practices conveying a message of
CONSTI 2 CASES Free Exercise of Religion
religious endorsement. For example, in County of Allegheny,
supra, we forbade the prominent display of a nativity scene on
public proper.ty; without contesting the dissent's observation that
the creche coerced no one into accepting or supporting whatever
message it proclaimed, five Members of the Court found its display
unconstitutional as a state endorsement of Christianity. Id., at 589-
594, 598-602. Likewise, in Wallace v. Jaffree, 472 U. S. 38 (1985),
we struck down a state law requiring a moment of silence in public
classrooms not because the statute coerced students to participate
in prayer (for it did not), but because the manner of
619
its enactment "convey[ed] a message of state approval of prayer
activities in the public schools." Id., at 61; see also id., at 67-84
(O'CONNOR, J., concurring in judgment). Cf. Engel v. Vitale, 370 U.
S., at 431 ("When the power, prestige and financial support of
government is placed behind a particular religious belief, the
indirect coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain. But the purposes
underlying the Establishment Clause go much further than that").
In Epperson v. Arkansas, 393 U. S. 97 (1968), we invalidated a state
law that barred the teaching of Darwin's theory of evolution
because, even though the statute obviously did not coerce anyone
to support religion or participate in any religious practice, it was
enacted for a singularly religious purpose. See
also Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (statute
requiring instruction in "creation science" "endorses religion in
violation of the First Amendment"). And in School Dist. of Grand
Rapids v. Ball, 473 U. S. 373 (1985), we invalidated a program
whereby the State sent public school teachers to parochial schools
to instruct students on ostensibly nonreligious matters; while the
scheme clearly did not coerce anyone to receive or subsidize
religious instruction, we held it invalid because, among other
[program] threatens to convey a message of state support for
religion to students and to the general public." Id., at 397; see
also Texas Monthly, Inc. v. Bullock, 489 U. S., at 17 (plurality
opinion) (tax exemption benefiting only religious publications
Page 143 of 267
"effectively endorses religious belief"); id., at 28 (BLACKMUN, J.,
concurring in judgment) (exemption unconstitutional because State
"engaged in preferential support for the communication of religious
messages").
Our precedents may not always have drawn perfectly straight lines.
They simply cannot, however, support the position that a showing
of coercion is necessary to a successful Establishment Clause
claim.
620
B
Like the prOVISIOns about "due" process and "unreasonable"
searches and seizures, the constitutional language forbidding laws
"respecting an establishment of religion" is not pellucid. But
virtually everyone acknowledges that the Clause bans more than
formal establishments of religion in the traditional sense, that is,
massive state support for religion through, among other means,
comprehensive schemes of taxation. See generally Levy 1-62
(discussing such establishments in the Colonies and early States).
This much follows from the Framers' explicit rejection of simpler
provisions prohibiting either the establishment of a religion or laws
"establishing religion" in favor of the broader ban on laws
"respecting an establishment of religion." See supra, at 612-614.
While some argue that the Framers added the word "respecting"
simply to foreclose federal interference with state establishments
of religion, see, e. g., Amar, The Bill of Rights as a Constitution, 100
Yale L. J. 1131, 1157 (1991), the language sweeps more broadly
than that. In Madison's words, the Clause in its final form forbids
"everything like" a national religious establishment, see Madison's
"Detached Memoranda" 558, and, after incorporation, it forbids
"everything like" a state religious establishment.4 Cf. County of
Allegheny, 492 U. S., at 649 (opinion of STEVENS, J.). The sweep is
broad enough that Madison himself characterized congressional
provisions for legislative and military chaplains as unconstitutional
CONSTI 2 CASES Free Exercise of Religion
"establishments." Madison's "Detached Memoranda" 558-559;
see infra, at 624-625, and n. 6.
4 In Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), we
unanimously incorporated the Establishment Clause into the Due
Process Clause of the Fourteenth Amendment and, by so doing,
extended its reach to the actions of States. Id., at 14-15; see
also Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) (dictum).
Since then, not one Member of this Court has proposed
disincorporating the Clause.
621
While petitioners insist that the prohibition extends only to the
"coercive" features and incidents of establishment, they cannot
easily square that claim with the constitutional text. The First
Amendment forbids not just laws "respecting an establishment of
religion," but also those "prohibiting the free exercise thereof." Yet
laws that coerce nonadherents to "support or participate in any
religion or its exercise," County of Allegheny, supra, at 659-660
(opinion of KENNEDY, J.), would virtually by definition violate their
right to religious free exercise. See Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990)
(under Free Exercise Clause, "government may not compel
affirmation of religious belief"), citing Torcaso v. Watkins, 367 U. S.
488 (1961); see also J. Madison, Memorial and Remonstrance
Against Religious Assessments (1785) (compelling support for
religious establishments violates "free exercise of Religion"), quoted
in 5 The Founders' Constitution, at 82, 84. Thus, a literal application
of the coercion test would render the Establishment Clause a virtual
nullity, as petitioners' counsel essentially conceded at oral
argument. Tr. of Oral Arg. 18.
Our cases presuppose as much; as we said in Schoo l Dist. of
Abington, "[t]he distinction between the two clauses is apparent-a
violation of the Free Exercise Clause is predicated on coercion while
the Establishment Clause violation need not be so attended." 374
U. S., at 223; see also Laycock, "Nonpreferential" Aid 922 ("If
coercion is ... an element of the establishment clause,
establishment adds nothing to free exercise"). While one may argue
Page 144 of 267
that the Framers meant the Establishment Clause simply to
ornament the First Amendment, cf. T. Curry, The First Freedoms
216-217 (1986), that must be a reading of last resort. Without
compelling evidence to the contrary, we should presume that the
Framers meant the Clause to stand for something more than
petitioners attribute to it.
622
C Establishment Clause to forbid noncoercive state endorsement of
Petitioners argue from the political setting in which the
Establishment Clause was framed, and from the Framers' own
political practices following ratification, that government may
constitutionally endorse religion so long as it does not coerce
religious conformity. The setting and the practices warrant
canvassing, but while they yield some evidence for petitioners'
argument, they do not reveal the degree of consensus in early
constitutional thought that would raise a threat to stare decisis by
challenging the presumption that the Establishment Clause adds
something to the Free Exercise Clause that follows it.
The Framers adopted the Religion Clauses in response to a long
tradition of coercive state support for religion, particularly in the
form of tax assessments, but their special antipathy to religious
coercion did not exhaust their hostility to the features and incidents
of establishment. Indeed, Jefferson and Madison opposed any
political appropriation of religion, see infra, at 623-626, and, even
when challenging the hated assessments, they did not always
temper their rhetoric with distinctions between coercive and
noncoercive state action. When, for example, Madison criticized
Virginia's general assessment bill, he invoked principles antithetical
to all state efforts to promote religion. An assessment, he wrote, is
improper not simply because it forces people to donate "three
pence" to religion, but, more broadly, because "it is itself a signal of
persecution. It degrades from the equal rank of Citizens all those
whose opinions in Religion do not bend to those of the Legislative
authority." J. Madison, Memorial and Remonstrance Against
Religious Assessments (1785), in 5 The Founders' Constitution, at
CONSTI 2 CASES Free Exercise of Religion
83. Madison saw that, even without the tax collector's participation,
an official endorsement of religion can impair religious liberty.
Petitioners contend that because the early Presidents included
religious messages in their inaugural and Thanksgiving Day
addresses, the Framers could not have meant the
623
religion. The argument ignores the fact, however, that Americans
today find such proclamations less controversial than did the
founding generation, whose published thoughts on the matter belie
petitioners' claim. President Jefferson, for example, steadfastly
refused to issue Thanksgiving proclamations of any kind, in part
because he thought they violated the Religion Clauses. Letter from
Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The
Founders' Constitution, at 98. In explaining his views to the
Reverend Samuel Miller, Jefferson effectively anticipated, and
rejected, petitioners' position:
"[I]t is only proposed that I should recommend, not prescribe a day
of fasting & prayer. That is, that I should indirectly assume to the U.
S. an authority over religious exercises which the Constitution has
directly precluded from them. It must be meant too that this
recommendation is to carry some authority, and to be sanctioned
by some penalty on those who disregard it; not indeed of fine and
imprisonment, but of some degree of proscription perhaps in public
opinion." Id., at 98-99 (emphasis in original).
By condemning such noncoercive state practices that, in
"recommending" the majority faith, demean religious dissenters "in
public opinion," Jefferson necessarily condemned what, in modern
terms, we call official endorsement of religion. He accordingly
construed the Establishment Clause to forbid not simply state
coercion, but also state endorsement, of religious belief and
observance.5 And if he opposed
Page 145 of 267
5Petitioners claim that the quoted passage shows that Jefferson
regarded Thanksgiving proclamations as "coercive": "Thus, while
one may disagree with Jefferson's view that a recommendatory
Thanksgiving proclamation would nonetheless be coercive ... one
cannot disagree that Jefferson believed coercion to be a necessary
element of a First Amendment violation." Brief for Petitioners 34.
But this is wordplay. The "proscription" to which Jefferson referred
was, of course, by the public and not
624
impersonal Presidential addresses for inflicting "proscription in
public opinion," all the more would he have condemned less diffuse
expressions of official endorsement.
During his first three years in office, James Madison also refused to
call for days of thanksgiving and prayer, though later, amid the
political turmoil of the War of 1812, he did so on four separate
occasions. See Madison's "Detached Memoranda" 562, and n. 54.
Upon retirement, in an essay condemning as an unconstitutional
"establishment" the use of public money to support congressional
and military chaplains, id., at 558-560,6 he concluded that
"[r]eligious procla-
the government, whose only action was a noncoercive
recommendation. And one can call any act of endorsement a form
of coercion, but only if one is willing to dilute the meaning of
"coercion" until there is no meaning left. Jefferson's position
straightforwardly contradicts the claim that a showing of
"coercion," under any normal definition, is prerequisite to a
successful Establishment Clause claim. At the same time,
Jefferson's practice, like Madison's, see infra this page and 625,
sometimes diverged from principle, for he did include religious
references in his inaugural speeches. See Inaugural Addresses of
the Presidents of the United States 17,22-23 (1989); see also n.
3, supra.
Petitioners also seek comfort in a different passage of the same
letter.
CONSTI 2 CASES Free Exercise of Religion
Jefferson argued that Presidential religious proclamations violate
not just the Establishment Clause, but also the Tenth Amendment,
for "what might be a right in a state government, was a violation of
that right when assumed by another." Letter from Thomas Jefferson
to Rev. S. Miller (Jan. 23,1808), in 5 The Founders' Constitution 99
(P. Kurland & R. Lerner eds. 1987). Jefferson did not, however,
restrict himself to the Tenth Amendment in condemning such
proclamations by a national officer. I do not, in any event,
understand petitioners to be arguing that the Establishment Clause
is exclusively a structural provision mediating the respective
powers of the State and National Governments. Such a position
would entail the argument, which petitioners do not make, and
which we would almost certainly reject, that incorporation of the
Establishment Clause under the Fourteenth Amendment was
erroneous.
6 Madison found this practice "a palpable violation of ...
Constitutional principles." Madison's "Detached Memoranda" 558.
Although he sat on the committee recommending the congressional
chaplainship, see R. Cord, Separation of Church and State:
Historical Fact and Current Fiction 23
625
mations by the Executive recommending thanksgivings & fasts are
shoots from the same root with the legislative acts reviewed. Altho'
recommendations only, they imply a religious agency, making no
part of the trust delegated to political rulers." Id., at 560. Explaining
that "[t]he members of a Govt ... can in no sense, be regarded as
possessing an advisory trust from their Constituents in their
religious capacities," ibid., he further observed that the state
necessarily freights all of its religious messages with political ones:
"the idea of policy [is] associated with religion, whatever be the
mode or the occasion, when a function of the latter is assumed by
those in power." Id., at 562 (footnote omitted).
Madison's failure to keep pace with his principles in the face of
congressional pressure cannot erase the principles. He admitted to
backsliding, and explained that he had made the content of his
wartime proclamations inconsequential enough to mitigate much of
Page 146 of 267
their impropriety. See ibid.; see also Letter from J. Madison to E.
Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105.
While his writings suggest mild variations in his interpretation of
the Establishment Clause, Madison was no different in that respect
from the rest of his political generation. That he expressed so much
doubt about the constitutionality of religious proclamations,
however, suggests a brand of separationism stronger even than
that embodied in our traditional jurisprudence. So too does his
characterization of public subsidies for legislative and military
chaplains as unconstitutional "establishments," see supra, at 624
and this page, and n. 6, for the federal courts, however expansive
their general view of the Establishment Clause, have upheld both
practices. See Marsh v. Chambers, 463 U. S. 783 (1983) (legislative
chap-
(1988), he later insisted that "it was not with my approbation, that
the deviation from [the immunity of religion from civil jurisdiction]
took place in Congs., when they appointed Chaplains, to be paid
from the N at!. Treasury." Letter from J. Madison to E. Livingston
(July 10, 1822), in 5 The Founders' Constitution, at 105.
626
lains); Katcoff v. Marsh, 755 F.2d 223 (CA2 1985) (military
chaplains).
To be sure, the leaders of the young Republic engaged in some of
the practices that separationists like Jefferson and Madison
criticized. The First Congress did hire institutional chaplains,
see Marsh v. Chambers, supra, at 788, and Presidents Washington
and Adams unapologetically marked days of" 'public thanksgiving
and prayer,'" see R. Cord, Separation of Church and State 53
(1988). Yet in the face of the separationist dissent, those practices
prove, at best, that the Framers simply did not share a common
understanding of the Establishment Clause, and, at worst, that
they, like other politicians, could raise constitutional ideals one day
and turn their backs on them the next. "Indeed, by 1787 the
provisions of the state bills of rights had become what Madison
called mere 'paper parchments' -expressions of the most laudable
sentiments, observed as much in the breach as in practice."
CONSTI 2 CASES Free Exercise of Religion
Kurland, The Origins of the Religion Clauses of the Constitution, 27
Wm. & Mary L. Rev. 839, 852 (1986) (footnote omitted). Sometimes
the National Constitution fared no better. Ten years after proposing
the First Amendment, Congress passed the Alien and Sedition Acts,
measures patently unconstitutional by modern standards. If the
early Congress's political actions were determinative, and not
merely relevant, evidence of constitutional meaning, we would
have to gut our current First Amendment doctrine to make room for
political censorship.
While we may be unable to know for certain what the Framers
meant by the Clause, we do know that, around the time of its
ratification, a respectable body of opinion supported a considerably
broader reading than petitioners urge upon us. This consistency
with the textual considerations is enough to preclude
fundamentally reexamining our settled law, and I am accordingly
left with the task of considering whether the state practice at issue
here violates our traditional understanding of the Clause's
proscriptions.
627
III
While the Establishment Clause's concept of neutrality is not self-
revealing, our recent cases have invested it with specific content:
the State may not favor or endorse either religion generally over
nonreligion or one religion over others. See, e. g., County of
Allegheny, 492 U. S., at 589-594, 598602; Texas Monthly, 489 U. S.,
at 17 (plurality opinion); id., at 28 (BLACKMUN, J., concurring in
judgment); Edwards v. Aguillard, 482 U. S., at 593; School Dist. of
Grand Rapids, 473 U. S., at 389-392; Wallace v. Jaffree, 472 U. S., at
61; see also Laycock, Formal, Substantive, and Disaggregated
Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990);
cf. Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). This
principle against favoritism and endorsement has become the
foundation of Establishment Clause jurisprudence, ensuring that
religious belief is irrelevant to every citizen's standing in the
political community, see County of Allegheny, supra, at 594; J.
Madison, Memorial and Remonstrance Against Religious
Page 147 of 267
Assessments (1785), in 5 The Founders' Constitution, at 82-83, and
protecting religion from the demeaning effects of any governmental
embrace, see id., at 83. Now, as in the early Republic, "religion &
Govt. will both exist in greater purity, the less they are mixed
together." Letter from J. Madison to E. Livingston (July 10, 1822), in
5 The Founders' Constitution, at 106. Our aspiration to religious
liberty, embodied in the First Amendment, permits no other
standard.
A laws forbidding peyote use, see Drug Enforcement Administration
That government must remain neutral in matters of religion does
not foreclose it from ever taking religion into account. The State
may "accommodate" the free exercise of religion by relieving
people from generally applicable rules that interfere with their
religious callings. See, e. g., Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S.
327 (1987); see also Sherbert v. Verner, 374 U. S. 398 (1963).
Contrary to the
628
views of some,7 such accommodation does not necessarily signify
an official endorsement of religious observance over disbelief.
In everyday life, we routinely accommodate religious beliefs that
we do not share. A Christian inviting an Orthodox Jew to lunch
might take pains to choose a kosher restaurant; an atheist in a
hurry might yield the right of way to an Amish man steering a
horse-drawn carriage. In so acting, we express respect for, but not
endorsement of, the fundamental values of others. We act without
expressing a position on the theological merit of those values or of
religious belief in general, and no one perceives us to have taken
such a position.
The government may act likewise. Most religions encourage
devotional practices that are at once crucial to the lives of believers
and idiosyncratic in the eyes of nonadherents. By definition, secular
rules of general application are drawn from the nonadherent's
CONSTI 2 CASES Free Exercise of Religion
vantage and, consequently, fail to take such practices into account.
Yet when enforcement of such rules cuts across religious
sensibilities, as it often does, it puts those affected to the choice of
taking sides between God and government. In such circumstances,
accommodating religion reveals nothing beyond a recognition that
general rules can unnecessarily offend the religious conscience
when they offend the conscience of secular society not at all.
Cf. Welsh v. United States, 398 U. S. 333, 340 (1970) (plurality
opinion). Thus, in freeing the Native American Church from federal
Miscellaneous Exemptions, 21 CFR
7 See, e. g., Thomas v. Review Ed. of Indiana Employment
Security Div., 450 U. S. 707, 726 (1981) (REHNQUIST, J.,
dissenting); Choper, The Religion Clauses of the First Amendment:
Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 685-686 (1980); see
also Walz v. Tax Comm'n of New York City, 397 U. S. 664,668-669
(1970); Sherbert v. Verner, 374 U. S. 398, 414, 416 (1963) (Stewart,
J., concurring in result); cf. Wallace v. Jaffree, 472 U. S., at 83
(O'CONNOR, J., concurring in judgment).
629
§ 1307.31 (1991), the government conveys no endorsement of
peyote rituals, the Church, or religion as such; it simply respects
the centrality of peyote to the lives of certain Americans. See Note,
The Free Exercise Boundaries of Permissible Accommodation Under
the Establishment Clause, 99 Yale L. J. 1127, 1135-1136 (1990).
B
Whatever else may define the scope of accommodation permissible
under the Establishment Clause, one requirement is clear:
accommodation must lift a discernible burden on the free exercise
of religion. See County of Allegheny, supra, at 601, n. 51; id., at
631-632 (O'CONNOR, J., concurring in part and concurring in
judgment); Corporation of Presiding Bishop, supra, at 348
(O'CONNOR, J., concurring in judgment); see also Texas Monthly,
supra, at 18, 18-19, n. 8 (plurality opinion); Wallace v. Jaffree,
Page 148 of 267
supra, at 57-58, n. 45. But see County of Allegheny, supra, at 663,
n. 2 (KENNEDY, J., concurring in judgment in part and dissenting in
part). Concern for the position of religious individuals in the modern
regulatory State cannot justify official solicitude for a religious
practice unburdened by general rules; such gratuitous largesse
would effectively favor religion over disbelief. By these lights one
easily sees that, in sponsoring the graduation prayers at issue here,
the State has crossed the line from permissible accommodation to
unconstitutional establishment.
Religious students cannot complain that omitting prayers from their
graduation ceremony would, in any realistic sense, "burden" their
spiritual callings. To be sure, many of them invest this rite of
passage with spiritual significance, but they may express their
religious feelings about it before and after the ceremony. They may
even organize a privately sponsored baccalaureate if they desire
the company of likeminded students. Because they accordingly
have no need for the machinery of the State to affirm their beliefs,
the
630
government's sponsorship of prayer at the graduation ceremony is
most reasonably understood as an official endorsement of religion
and, in this instance, of theistic religion. One may fairly say, as one
commentator has suggested, that the government brought prayer
into the ceremony "precisely because some people want a symbolic
affirmation that government approves and endorses their religion,
and because many of the people who want this affirmation place
little or no value on the costs to religious minorities." Laycock,
Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo.
Wash. L. Rev. 841, 844 (1992).8
Petitioners would deflect this conclusion by arguing that graduation
prayers are no different from Presidential religious proclamations
and similar official "acknowledgments" of religion in public life. But
religious invocations in Thanksgiving Day addresses and the like,
rarely noticed, ignored without effort, conveyed over an impersonal
medium, and directed at no one in particular, inhabit a pallid zone
worlds apart from official prayers delivered to a captive audience of
CONSTI 2 CASES Free Exercise of Religion
public school students and their families. Madison himself
respected the difference between the trivial and the serious in
constitutional practice. Realizing that his con-
8 If the State had chosen its graduation day speakers according to
wholly secular criteria, and if one of those speakers (not a state
actor) had individually chosen to deliver a religious message, it
would have been harder to attribute an endorsement of religion to
the State. Cf. Witters v. Washington Dept. of Services for Blind, 474
U. S. 481 (1986). But that is not our case. Nor is this a case where
the State has, without singling out religious groups or individuals,
extended benefits to them as members of a broad class of
beneficiaries defined by clearly secular criteria.
See Widmar v. Vincent, 454 U. S. 263, 274-275 (1981); Walz,
supra, at 696 (opinion of Harlan, J.) ("In any particular case the
critical question is whether the circumference of legislation
encircles a class so broad that it can be fairly concluded that
religious institutions could be thought to fall within the natural
perimeter"). Finally, this is not a case like Marsh v. Chambers, 463
U. S. 783 (1983), in which government officials invoke spiritual
inspiration entirely for their own benefit without directing any
religious message at the citizens they lead.
631
temporaries were unlikely to take the Establishment Clause
seriously enough to forgo a legislative chaplainship, he suggested
that "[r]ather than let this step beyond the landmarks of power
have the effect of a legitimate precedent, it will be better to apply
to it the legal aphorism de minimis non curat lex .... " Madison's
"Detached Memoranda" 559; see also Letter from J. Madison to E.
Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105.
But that logic permits no winking at the practice in question here.
When public school officials, armed with the State's authority,
convey an endorsement of religion to their students, they strike
near the core of the Establishment Clause. However "ceremonial"
their messages may be, they are flatly unconstitutional.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JusTICE WHITE, and
JUSTICE THOMAS join, dissenting.
Page 149 of 267
Three Terms ago, I joined an opinion recognizing that the
Establishment Clause must be construed in light of the
"[g]overnment policies of accommodation, acknowledgment, and
support for religion [that] are an accepted part of our political and
cultural heritage." That opinion affirmed that "the meaning of the
Clause is to be determined by reference to historical practices and
understandings." It said that "[a] test for implementing the
protections of the Establishment Clause that, if applied with
consistency, would invalidate longstanding traditions cannot be a
proper reading of the Clause." County of Allegheny v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573,
657, 670 (1989) (KENNEDY, J., concurring in judgment in part and
dissenting in part).
These views of course prevent me from joining today's opinion,
which is conspicuously bereft of any reference to history. In holding
that the Establishment Clause prohibits invocations and
benedictions at public school graduation ceremonies, the Court-
with nary a mention that it is doing
632
so-lays waste a tradition that is as old as public school graduation
ceremonies themselves, and that is a component of an even more
longstanding American tradition of nonsectarian prayer to God at
public celebrations generally. As its instrument of destruction, the
bulldozer of its social engineering, the Court invents a boundless,
and boundlessly manipulable, test of psychological coercion, which
promises to do for the Establishment Clause what the Durham rule
did for the insanity defense. See Durham v. United States, 94 U. S.
App. D. C. 228, 214 F.2d 862 (1954). Today's opinion shows more
forcefully than volumes of argumentation why our Nation's
protection, that fortress which is our Constitution, cannot possibly
rest upon the changeable philosophical predilections of the Justices
of this Court, but must have deep foundations in the historic
practices of our people.
I governmental ceremonies and proclamations. The Declaration of
CONSTI 2 CASES Free Exercise of Religion
Justice Holmes' aphorism that "a page of history is worth a volume
of logic," New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921),
applies with particular force to our Establishment Clause
jurisprudence. As we have recognized, our interpretation of the
Establishment Clause should "compor[t] with what history reveals
was the contemporaneous understanding of its
guarantees." Lynch v. Donnelly, 465 U. S. 668, 673 (1984). "[T]he
line we must draw between the permissible and the impermissible
is one which accords with history and faithfully reflects the
understanding of the Founding Fathers." School Dist. of
Abington v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J.,
concurring). "[H]istorical evidence sheds light not only on what the
draftsmen intended the Establishment Clause to mean, but also on
how they thought that Clause applied" to contemporaneous
practices. Marsh v. Chambers, 463 U. S. 783, 790 (1983). Thus,
"[t]he existence from the beginning of the Nation's life of a
practice, [while] not conclusive of its constitutionality ... [,] is a fact
of considerable import in the interpretation" of the
633
Establishment Clause. Walz v. Tax Comm'n of New York City, 397 U.
S. 664, 681 (1970) (Brennan, J., concurring).
The history and tradition of our Nation are replete with public
ceremonies featuring prayers of thanksgiving and petition.
Illustrations of this point have been amply provided in our prior
opinions, see, e. g., Lynch, supra, at 674-678; Marsh, supra, at 786-
788; see also Wallace v. Jaffree, 472 U. S. 38, 100-103 (1985)
(REHNQUIST, J., dissenting); Engel v. Vitale, 370 U. S. 421, 446-450,
and n. 3 (1962) (Stewart, J., dissenting), but since the Court is so
oblivious to our history as to suggest that the Constitution restricts
"preservation and transmission of religious beliefs ... to the private
sphere," ante, at 589, it appears necessary to provide another brief
account.
From our Nation's origin, prayer has been a prominent part of
Independence, the document marking our birth as a separate
people, "appeal[ed] to the Supreme Judge of the world for the
Page 150 of 267
rectitude of our intentions" and avowed "a firm reliance on the
protection of divine Providence." In his first inaugural address, after
swearing his oath of office on a Bible, George Washington
deliberately made a prayer a part of his first official act as
President:
"[I]t would be peculiarly improper to omit in this first official act my
fervent supplications to that Almighty Being who rules over the
universe, who presides in the councils of nations, and whose
providential aids can supply every human defect, that His
benediction may consecrate to the liberties and happiness of the
people of the United States a Government instituted by themselves
for these essential purposes." Inaugural Addresses of the Presidents
of the United States, S. Doc. 101-10, p.2 (1989).
Such supplications have been a characteristic feature of inaugural
addresses ever since. Thomas Jefferson, for example,
634
prayed in his first inaugural address: "[MJay that Infinite Power
which rules the destinies of the universe lead our councils to what
is best, and give them a favorable issue for your peace and
prosperity." Id., at 17. In his second inaugural address, Jefferson
acknowledged his need for divine guidance and invited his
audience to join his prayer:
"I shall need, too, the favor of that Being in whose hands we are,
who led our fathers, as Israel of old, from their native land and
planted them in a country flowing with all the necessaries and
comforts of life; who has covered our infancy with His providence
and our riper years with His wisdom and power, and to whose
goodness I ask you to join in supplications with me that He will so
enlighten the minds of your servants, guide their councils, and
prosper their measures that whatsoever they do shall result in your
good, and shall secure to you the peace, friendship, and
approbation of all nations." Id., at 22-23.
CONSTI 2 CASES Free Exercise of Religion
Similarly, James Madison, in his first inaugural address, placed his
confidence
"in the guardianship and guidance of that Almighty Being whose
power regulates the destiny of nations, whose blessings have been
so conspicuously dispensed to this rising Republic, and to whom we
are bound to address our devout gratitude for the past, as well as
our fervent supplications and best hopes for the future." Id., at 28.
Most recently, President Bush, continuing the tradition established
by President Washington, asked those attending his inauguration to
bow their heads, and made a prayer his first official act as
President. Id., at 346.
Our national celebration of Thanksgiving likewise dates back to
President Washington. As we recounted in Lynch:
635
"The day after the First Amendment was proposed, Congress urged
President Washington to proclaim 'a day of public thanksgiving and
prayer, to be observed by acknowledging with grateful hearts the
many and signal favours of Almighty God.' President Washington
proclaimed November 26, 1789, a day of thanksgiving to 'offe[r]
our prayers and supplications to the Great Lord and Ruler of
Nations, and beseech Him to pardon our national and other
transgressions .... '" 465 U. S., at 675, n. 2 (citations omitted).
This tradition of Thanksgiving Proclamations-with their religious
theme of prayerful gratitude to God-has been adhered to by almost
every President. Id., at 675, and nn. 2 and 3; Wallace v. Jaffree,
supra, at 100-103 (REHNQUIST, J., dissenting).
The other two branches of the Federal Government also have a
long-established practice of prayer at public events. As we detailed
in Marsh, congressional sessions have opened with a chaplain's
prayer ever since the First Congress. 463 U. S., at 787-788. And this
Court's own sessions have opened with the invocation "God save
the United States and this Honorable Court" since the days of Chief
Page 151 of 267
Justice Marshall. 1 C. Warren, The Supreme Court in United States
History 469 (1922).
In addition to this general tradition of prayer at public ceremonies,
there exists a more specific tradition of invocations and
benedictions at public school graduation exercises. By one account,
the first public high school graduation ceremony took place in
Connecticut in July 1868-the very month, as it happens, that the
Fourteenth Amendment (the vehicle by which the Establishment
Clause has been applied against the States) was ratified-when "15
seniors from the Norwich Free Academy marched in their best
Sunday suits and dresses into a church hall and waited through
majestic music and long prayers." Brodinsky, Commencement Rites
Obsolete? Not At All, A 10-Week Study Shows, 10 Updat-
636
ing School Board Policies, No.4, p. 3 (Apr. 1979). As the Court
obliquely acknowledges in describing the "customary features" of
high school graduations, ante, at 583, and as respondents do not
contest, the invocation and benediction have long been recognized
to be "as traditional as any other parts of the [school] graduation
program and are widely established." H. McKown, Commencement
Activities 56 (1931); see also Brodinsky, supra, at 5.
II
The Court presumably would separate graduation invocations and
benedictions from other instances of public "preservation and
transmission of religious beliefs" on the ground that they involve
"psychological coercion." I find it a sufficient embarrassment that
our Establishment Clause jurisprudence regarding holiday displays,
see County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 (1989), has come to "requir[e]
scrutiny more commonly associated with interior decorators than
with the judiciary." American Jewish Congress v. Chicago, 827 F.2d
120, 129 (CA7 1987) (Easterbrook, J., dissenting). But interior
decorating is a rock-hard science compared to psychology
practiced by amateurs. A few citations of "[r]esearch in psychology"
CONSTI 2 CASES Free Exercise of Religion
that have no particular bearing upon the precise issue
here, ante, at 593, cannot disguise the fact that the Court has gone
beyond the realm where judges know what they are doing. The
Court's argument that state officials have "coerced" students to
take part in the invocation and benediction at graduation
ceremonies is, not to put too fine a point on it, incoherent.
The Court identifies two "dominant facts" that it says dictate its
ruling that invocations and benedictions at public school graduation
ceremonies violate the Establishment Clause. Ante, at 586. Neither
of them is in any relevant sense true.
637
A
The Court declares that students' "attendance and participation in
the [invocation and benediction] are in a fair and real sense
obligatory." Ibid. But what exactly is this "fair and real sense"?
According to the Court, students at graduation who want "to avoid
the fact or appearance of participation," ante, at 588, in the
invocation and benediction are psychologically obligated by "public
pressure, as well as peer pressure, ... to stand as a group or, at
least, maintain respectful silence" during those prayers. Ante, at
593. This assertion-the very linchpin of the Court's opinion-
is almost as intriguing for what it does not say as for what it says. It
does not say, for example, that students are psychologically
coerced to bow their heads, place their hands in a Durer-like prayer
position, pay attention to the prayers, utter "Amen," or in fact pray.
(Perhaps further intensive psychological research remains to be
done on these matters.) It claims only that students are
psychologically coerced "to stand ... or, at least, maintain respectful
silence." Ibid. (emphasis added). Both halves of this
disjunctive (both of which must amount to the fact or appearance
of participation in prayer if the Court's analysis is to survive on its
own terms) merit particular attention.
To begin with the latter: The Court's notion that a student who
simply sits in "respectful silence" during the invocation and
Page 152 of 267
benediction (when all others are standing) has somehow joined-or
would somehow be perceived as having joinedin the prayers is
nothing short of ludicrous. We indeed live in a vulgar age. But
surely "our social conventions," ibid., have not coarsened to the
point that anyone who does not stand on his chair and shout
obscenities can reasonably be deemed to have assented to
everything said in his presence. Since the Court does not dispute
that students exposed to prayer at graduation ceremonies retain
(despite "subtle coercive pressures," ante, at 588) the free will to
sit, cf. ante, at 593, there is absolutely no basis for the Court's
638
decision. It is fanciful enough to say that "a reasonable dissenter,"
standing head erect in a class of bowed heads, "could believe that
the group exercise signified her own participation or approval of
it," ibid. It is beyond the absurd to say that she could entertain such
a belief while pointedly declining to rise.
But let us assume the very worst, that the nonparticipating
graduate is "subtly coerced" ... to stand! Even that half of the
disjunctive does not remotely establish a "participation" (or an
"appearance of participation") in a religious exercise. The Court
acknowledges that "in our culture standing ... can signify adherence
to a view or simple respect for the views of others." Ibid. (Much
more often the latter than the former, I think, except perhaps in the
proverbial town meeting, where one votes by standing.) But if it is a
permissible inference that one who is standing is doing so simply
out of respect for the prayers of others that are in progress, then
how can it possibly be said that a "reasonable dissenter ... could
believe that the group exercise signified her own participation or
approval"? Quite obviously, it cannot. I may add, moreover, that
maintaining respect for the religious observances of others is a
fundamental civic virtue that government (including the public
schools) can and should cultivate-so that even if it were the case
that the displaying of such respect might be mistaken for taking
part in the prayer, I would deny that the dissenter's interest in
avoiding even the false appearance of participation constitutionally
trumps the government's interest in fostering respect for religion
generally.
CONSTI 2 CASES Free Exercise of Religion
The opinion manifests that the Court itself has not given careful
consideration to its test of psychological coercion. For if it had, how
could it observe, with no hint of concern or disapproval, that
students stood for the Pledge of Allegiance, which immediately
preceded Rabbi Gutterman's invocation? Ante, at 583. The
government can, of course, no more coerce political orthodoxy than
religious orthodoxy. West
639
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943). Moreover,
since the Pledge of Allegiance has been revised since Barnette to
include the phrase "under God," recital of the Pledge would appear
to raise the same Establishment Clause issue as the invocation and
benediction. If students were psychologically coerced to remain
standing during the invocation, they must also have been
psychologically coerced, moments before, to stand for (and
thereby, in the Court's view, take part in or appear to take part in)
the Pledge. Must the Pledge therefore be barred from the public
schools (both from graduation ceremonies and from the
classroom)? In Barnette we held that a public school student could
not be compelled to recite the Pledge; we did not even hint that
she could not be compelled to observe respectful silence-indeed,
even to stand in respectful silence-when those who wished to recite
it did so. Logically, that ought to be the next project for the Court's
bulldozer.
I also find it odd that the Court concludes that high school
graduates may not be subjected to this supposed psychological
coercion, yet refrains from addressing whether "mature adults"
may. Ante, at 593. I had thought that the reason graduation from
high school is regarded as so significant an event is that it is
generally associated with transition from adolescence to young
adulthood. Many graduating seniors, of course, are old enough to
vote. Why, then, does the Court treat them as though they were
first-graders? Will we soon have a jurisprudence that distinguishes
between mature and immature adults?
B
Page 153 of 267
The other "dominant fac[t]" identified by the Court is that "[s]tate
officials direct the performance of a formal religious exercise" at
school graduation ceremonies. Ante, at 586. "Direct[ing] the
performance of a formal religious exercise" has a sound ofliturgy to
it, summoning up images of the principal directing acolytes where
to carry the cross, or showing the rabbi where to unroll the Torah. A
Court professing to be
640
engaged in a "delicate and fact-sensitive" line-drawing, ante, at
597, would better describe what it means as "prescribing the
content of an invocation and benediction." But even that would be
false. All the record shows is that principals of the Providence public
schools, acting within their delegated authority, have invited clergy
to deliver invocations and benedictions at graduations; and that
Principal Lee invited Rabbi Gutterman, provided him a two-page
pamphlet, prepared by the National Conference of Christians and
Jews, giving general advice on inclusive prayer for civic occasions,
and advised him that his prayers at graduation should be
nonsectarian. How these facts can fairly be transformed into the
charges that Principal Lee "directed and controlled the content of
[Rabbi Gutterman's] prayer," ante, at 588, that school officials
"monitor prayer," ante, at 590, and attempted to "'compose official
prayers,'" ante, at 588, and that the "government involvement with
religious activity in this case is pervasive," ante, at 587, is difficult
to fathom. The Court identifies nothing in the record remotely
suggesting that school officials have ever drafted, edited, screened,
or censored graduation prayers, or that Rabbi Gutterman was a
mouthpiece of the school officials.
These distortions of the record are, of course, not harmless error:
without them the Court's solemn assertion that the school officials
could reasonably be perceived to be "enforc[ing] a religious
orthodoxy," ante, at 592, would ring as hollow as it ought.
III
CONSTI 2 CASES Free Exercise of Religion
The deeper flaw in the Court's opinion does not lie in its wrong
answer to the question whether there was stateinduced "peer-
pressure" coercion; it lies, rather, in the Court's making violation of
the Establishment Clause hinge on such a precious question. The
coercion that was a hallmark of historical establishments of religion
was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty. Typically, attendance
at the state
641
church was required; only clergy of the official church could lawfully
perform sacraments; and dissenters, if tolerated, faced an array of
civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus,
for example, in the Colony of Virginia, where the Church of England
had been established, ministers were required by law to conform to
the doctrine and rites of the Church of England; and all persons
were required to attend church and observe the Sabbath, were
tithed for the public support of Anglican ministers, and were taxed
for the costs of building and repairing churches. Id., at 3-4.
The Establishment Clause was adopted to prohibit such an
establishment of religion at the federal level (and to protect state
establishments of religion from federal interference). I will further
acknowledge for the sake of argument that, as some scholars have
argued, by 1790 the term "establishment" had acquired an
additional meaning-"financial support of religion generally, by
public taxation" -that reflected the development of "general or
multiple" establishments, not limited to a single church. Id., at 8-9.
But that would still be an establishment coerced by force of
law. And I will further concede that our constitutional tradition, from
the Declaration of Independence and the first inaugural address of
Washington, quoted earlier, down to the present day, has, with a
few aberrations, see Church of Holy Trinity v. United States, 143 U.
S. 457 (1892), ruled out of order governmentsponsored
endorsement of religion-even when no legal coercion is present,
and indeed even when no ersatz, "peerpressure" psycho-coercion is
present-where the endorsement is sectarian, in the sense of
specifying details upon which men and women who believe in a
benevolent, omnipotent Creator and Ruler of the world are known
Page 154 of 267
to differ (for example, the divinity of Christ). But there is simply no
support for the proposition that the officially sponsored
nondenominational invocation and benediction read by Rabbi
Gutterman-with no one legally coerced to recite
642
them-violated the Constitution of the United States. To the contrary,
they are so characteristically American they could have come from
the pen of George Washington or Abraham Lincoln himself.
Thus, while I have no quarrel with the Court's general proposition
that the Establishment Clause "guarantees that government may
not coerce anyone to support or participate in religion or its
exercise," ante, at 587, I see no warrant for expanding the concept
of coercion beyond acts backed by threat of penalty-a brand of
coercion that, happily, is readily discernible to those of us who have
made a career of reading the disciples of Blackstone rather than of
Freud. The Framers were indeed opposed to coercion of religious
worship by the National Government; but, as their own sponsorship
of nonsectarian prayer in public events demonstrates, they
understood that "[s]peech is not coercive; the listener may do as he
likes." American Jewish Congress v. Chicago, 827 F. 2d, at 132
(Easterbrook, J., dissenting).
This historical discussion places in revealing perspective the Court's
extravagant claim that the State has "for all practical
purposes," ante, at 589, and "in every practical sense," ante, at
598, compelled students to participate in prayers at graduation.
Beyond the fact, stipulated to by the parties, that attendance at
graduation is voluntary, there is nothing in the record to indicate
that failure of attending students to take part in the invocation or
benediction was subject to any penalty or discipline. Contrast this
with, for example, the facts of Barnette: Schoolchildren were
required by law to recite the Pledge of Allegiance; failure to do so
resulted in expulsion, threatened the expelled child with the
prospect of being sent to a reformatory for criminally inclined
juveniles, and subjected his parents to prosecution (and
incarceration) for causing delinquency. 319 U. S., at 629-630. To
CONSTI 2 CASES Free Exercise of Religion
characterize the "subtle coercive pressures," ante, at 588, allegedly
present here as the "practical" equiva-
643
lent of the legal sanctions in Barnette is ... well, let me just say it is
not a "delicate and fact-sensitive" analysis.
The Court relies on our "school prayer" cases, Engel v.
Vitale, 370 U. S. 421 (1962), and School Dist. of
Abington v. Schempp, 374 U. S. 203 (1963). Ante, at 592. But
whatever the merit of those cases, they do not support, much less
compel, the Court's psycho-journey. In the first
place, Engel and Schempp do not constitute an exception to the
rule, distilled from historical practice, that public ceremonies may
include prayer, see supra, at 633-636; rather, they simply do not
fall within the scope of the rule (for the obvious reason that school
instruction is not a public ceremony). Second, we have made clear
our understanding that school prayer occurs within a framework in
which legal coercion to attend school (i. e., coercion under threat of
penalty) provides the ultimate backdrop. In Schempp, for example,
we emphasized that the prayers were "prescribed as part of the
curricular activities of students who are required by law to attend
school." 374 U. S., at 223 (emphasis added). Engel's suggestion
that the school prayer program at issue there-which permitted
students "to remain silent or be excused from the room," 370 U. S.,
at 430-involved "indirect coercive pressure," id., at 431, should be
understood against this backdrop of legal coercion. The question
whether the opt-out procedure in Engel sufficed to dispel the
coercion resulting from the mandatory attendance requirement is
quite different from the question whether forbidden coercion exists
in an environment utterly devoid of legal compulsion. And finally,
our school prayer cases turn in part on the fact that the classroom
is inherently an instructional setting, and daily prayer there-where
parents are not present to counter "the students' emulation of
teachers as role models and the children's susceptibility to peer
pressure," Edwards v. Aguillard, 482 U. S. 578, 584 (1987)-might be
thought to raise special concerns regarding state interference with
Page 155 of 267
the liberty of parents to direct the religious upbringing of their
children: "Families entrust pub-
644
lie schools with the education of their children, but condition their
trust on the understanding that the classroom will not purposely be
used to advance religious views that may conflict with the private
beliefs of the student and his or her
family." Ibid.; see Pierce v. Society of Sisters, 268 U. S. 510,534-535
(1925). Voluntary prayer at graduation-a onetime ceremony at
which parents, friends, and relatives are present-can hardly be
thought to raise the same concerns.
IV
Our Religion Clause jurisprudence has become bedeviled (so to
speak) by reliance on formulaic abstractions that are not derived
from, but positively conflict with, our longaccepted constitutional
traditions. Foremost among these has been the so-
called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602, 612-613
(1971), which has received well-earned criticism from many
Members of this Court. See, e. g., County of Allegheny, 492 U. S., at
655-656 (opinion of KENNEDY, J.); Edwards v. Aguillard, supra, at
636-640 (SCALIA, J., dissenting); Wallace v. Jaffree, 472 U. S., at
108-112 (REHNQUIST, J., dissenting); Aguilar v. Felton, 473 U. S.
402, 426-430 (1985) (O'CONNOR, J., dissenting); Roemer v. Board
of Pub. Works of Md., 426 U. S. 736, 768-769 (1976) (WHITE, J.,
concurring in judgment). The Court today demonstrates the
irrelevance of Lemon by essentially ignoring it, see ante, at 587,
and the interment of that case may be the one happy byproduct of
the Court's otherwise lamentable decision. Unfortunately, however,
the Court has replaced Lemon with its psycho-coercion test, which
suffers the double disability of having no roots whatever in our
people's historic practice, and being as infinitely expandable as the
reasons for psychotherapy itself.
Another happy aspect of the case is that it is only a jurisprudential
disaster and not a practical one. Given the odd basis for the Court's
CONSTI 2 CASES Free Exercise of Religion
decision, invocations and benedictions will be able to be given at
public school graduations next
645
June, as they have for the past century and a half, so long as school
authorities make clear that anyone who abstains from screaming in
protest does not necessarily participate in the prayers. All that is
seemingly needed is an announcement, or perhaps a written
insertion at the beginning of the graduation program, to the effect
that, while all are asked to rise for the invocation and benediction,
none is compelled to join in them, nor will be assumed, by rising, to
have done so. That obvious fact recited, the graduates and their
parents may proceed to thank God, as Americans have always
done, for the blessings He has generously bestowed on them and
on their country.
***
The reader has been told much in this case about the personal
interest of Mr. Weisman and his daughter, and very little about the
personal interests on the other side. They are not inconsequential.
Church and state would not be such a difficult subject if religion
were, as the Court apparently thinks it to be, some purely personal
avocation that can be indulged entirely in secret, like pornography,
in the privacy of one's room. For most believers it is not that, and
has never been. Religious men and women of almost all
denominations have felt it necessary to acknowledge and beseech
the blessing of God as a people, and not just as individuals,
because they believe in the "protection of divine Providence," as
the Declaration of Independence put it, not just for individuals but
for societies; because they believe God to be, as Washington's first
Thanksgiving Proclamation put it, the "Great Lord and Ruler of
Nations." One can believe in the effectiveness of such public
worship, or one can deprecate and deride it. But the longstanding
American tradition of prayer at official ceremonies displays with
unmistakable clarity that the Establishment Clause does not forbid
the government to accommodate it.
Page 156 of 267
The narrow context of the present case involves a community's
celebration of one of the milestones in its young citi-
646
zens' lives, and it is a bold step for this Court to seek to banish from
that occasion, and from thousands of similar celebrations
throughout this land, the expression of gratitude to God that a
majority of the community wishes to make. The issue before us
today is not the abstract philosophical question whether the
alternative of frustrating this desire of a religious majority is to be
preferred over the alternative of imposing "psychological coercion,"
or a feeling of exclusion, upon nonbelievers. Rather, the question
is whether a mandatory choice in favor of the former has been
imposed by the United States Constitution. As the age-old practices
of our people show, the answer to that question is not at all in
doubt.
I must add one final observation: The Founders of our Republic
knew the fearsome potential of sectarian religious belief to
generate civil dissension and civil strife. And they also knew that
nothing, absolutely nothing, is so inclined to foster among religious
believers of various faiths a toleration-no, an affection-for one
another than voluntarily joining in prayer together, to the God
whom they all worship and seek. Needless to say, no one should be
compelled to do that, but it is a shame to deprive our public culture
of the opportunity, and indeed the encouragement, for people to do
it voluntarily. The Baptist or Catholic who heard and joined in the
simple and inspiring prayers of Rabbi Gutterman on this official and
patriotic occasion was inoculated from religious bigotry and
prejudice in a manner that cannot be replicated. To deprive our
society of that important unifying mechanism, in order to spare the
nonbeliever what seems to me the minimal inconvenience of
standing or even sitting in respectful nonparticipation, is as
senseless in policy as it is unsupported in law.
For the foregoing reasons, I dissent.
CONSTI 2 CASES Free Exercise of Religion
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.
520 (1993)
OCTOBER TERM, 1992
Syllabus
CHURCH OF THE LUKUMI BABALU AYE, INC., ET AL. v. CITY OF
HIALEAH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-948. Argued November 4, 1992-Decided June 11, 1993
Petitioner church and its congregants practice the Santeria religion,
which employs animal sacrifice as one of its principal forms of
devotion. The animals are killed by cutting their carotid arteries and
are cooked and eaten following all Santeria rituals except healing
and death rites. After the church leased land in respondent city and
announced plans to establish a house of worship and other facilities
there, the city council held an emergency public session and
passed, among other enactments, Resolution 87-66, which noted
city residents' "concern" over religious practices inconsistent with
public morals, peace, or safety, and declared the city's
"commitment" to prohibiting such practices; Ordinance 87-40,
which incorporates the Florida animal cruelty laws and broadly
punishes "[w]hoever ... unnecessarily or cruelly ... kills any animal,"
and has been interpreted to reach killings for religious reasons;
Ordinance 87-52, which defines "sacrifice" as "to unnecessarily
kill ... an animal in a ... ritual ... not for the primary purpose of food
consumption," and prohibits the "possess[ion], sacrifice, or
slaughter" of an animal if it is killed in "any type of ritual" and there
is an intent to use it for food, but exempts "any licensed [food]
establishment" if the killing is otherwise permitted by law;
Ordinance 87-71, which prohibits the sacrifice of animals, and
defines "sacrifice" in the same manner as Ordinance 87-52; and
Ordinance 87-72, which defines "slaughter" as "the killing of
animals for food" and prohibits slaughter outside of areas zoned for
slaughterhouses, but includes an exemption for "small numbers of
hogs and/or cattle" when exempted by state law. Petitioners filed
this suit under 42 U. S. C. § 1983, alleging violations of their rights
Page 157 of 267
under, inter alia, the Free Exercise Clause of the First Amendment.
Although acknowledging that the foregoing ordinances are not
religiously neutral, the District Court ruled for the city, concluding,
among other things, that compelling governmental interests in
preventing public health risks and cruelty to animals fully justified
the absolute prohibition on ritual sacrifice accomplished by the
ordinances, and that an exception to that prohibition for religious
conduct would unduly interfere with fulfillment of the governmental
interest because any more narrow restrictions would
521
be unenforceable as a result of the Santeria religion's secret nature.
The Court of Appeals affirmed.
Held: The judgment is reversed. 936 F.2d 586, reversed.
JUSTICE KENNEDY delivered the opinion of the Court with respect to
Parts I, II-A-1, II-A-3, II-B, III, and IV, concluding that the laws in
question were enacted contrary to free exercise principles, and
they are void. Pp. 531-540, 542-547.
(a) Under the Free Exercise Clause, a law that burdens religious
practice need not be justified by a compelling governmental
interest if it is neutral and of general applicability. Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872.
However, where such a law is not neutral or not of general
application, it must undergo the most rigorous of scrutiny: It must
be justified by a compelling governmental interest and must be
narrowly tailored to advance that interest. Neutrality and general
applicability are interrelated, and failure to satisfy one requirement
is a likely indication that the other has not been satisfied. Pp.531-
532.
(b) The ordinances' texts and operation demonstrate that they are
not neutral, but have as their object the suppression of Santeria's
central element, animal sacrifice. That this religious exercise has
been targeted is evidenced by Resolution 87-66's statements of
"concern" and "commitment," and by the use of the words
CONSTI 2 CASES Free Exercise of Religion
"sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71.
Moreover, the latter ordinances' various prohibitions, definitions,
and exemptions demonstrate that they were "gerrymandered" with
care to proscribe religious killings of animals by Santeria church
members but to exclude almost all other animal killings. They also
suppress much more religious conduct than is necessary to achieve
their stated ends. The legitimate governmental interests in
protecting the public health and preventing cruelty to animals could
be addressed by restrictions stopping far short of a flat prohibition
of all Santeria sacrificial practice, such as general regulations on
the disposal of organic garbage, on the care of animals regardless
of why they are kept, or on methods of slaughter. Although
Ordinance 87-72 appears to apply to substantial nonreligious
conduct and not to be overbroad, it must also be invalidated
because it functions in tandem with the other ordinances to
suppress Santeria religious worship. Pp. 533-540.
(c) Each of the ordinances pursues the city's governmental
interests only against conduct motivated by religious belief and
thereby violates the requirement that laws burdening religious
practice must be of general applicability. Ordinances 87-40, 87-52,
and 87-71 are substantially underinclusive with regard to the city's
interest in preventing cruelty
522
522 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Syllabus
to animals, since they are drafted with care to forbid few animal
killings but those occasioned by religious sacrifice, while many
types of animal deaths or kills for nonreligious reasons are either
not prohibited or approved by express provision. The city's
assertions that it is "selfevident" that killing for food is "important,"
that the eradication of insects and pests is "obviously justified," and
that euthanasia of excess animals "makes sense" do not explain
why religion alone must bear the burden of the ordinances. These
ordinances are also substantially underinclusive with regard to the
Page 158 of 267
city's public health interests in preventing the disposal of animal
carcasses in open public places and the consumption of
uninspected meat, since neither interest is pursued by respondent
with regard to conduct that is not motivated by religious conviction.
Ordinance 87-72 is underinc1usive on its face, since it does not
regulate nonreligious slaughter for food in like manner, and
respondent has not explained why the commercial slaughter of
"small numbers" of cattle and hogs does not implicate its professed
desire to prevent cruelty to animals and preserve the public health.
Pp. 542-546.
(d) The ordinances cannot withstand the strict scrutiny that is
required upon their failure to meet the Smith standard. They are
not narrowly tailored to accomplish the asserted governmental
interests. All four are overbroad or underinclusive in substantial
respects because the proffered objectives are not pursued with
respect to analogous nonreligious conduct and those interests
could be achieved by narrower ordinances that burdened religion to
a far lesser degree. Moreover, where, as here, government restricts
only conduct protected by the First Amendment and fails to enact
feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the governmental interests
given in justification of the restriction cannot be regarded as
compelling. Pp.546-547.
KENNEDY, J., delivered the opinion of the Court with respect to Parts
I, III, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS,
SCALIA, SOUTER, and THOMAS, JJ., joined, the opinion of the Court
with respect to Part II-B, in which REHNQUIST, C. J., and WHITE,
STEVENS, SCALIA, and THOMAS, JJ., joined, the opinion of the Court
with respect to Parts II-A-l and II-A-3, in which REHNQUIST, C. J., and
STEVENS, SCALIA, and THOMAS, JJ., joined, and an opinion with
respect to Part II-A-2, in which STEVENS, J., joined. SCALIA, J., filed
an opinion concurring in part and concurring in the judgment, in
which REHNQUIST, C. J., joined, post, p. 557. SOUTER, J., filed an
opinion concurring in part and concurring in the judgment, post, p.
559. BLACKMUN, J., filed an opinion concurring in the judgment, in
which O'CONNOR, J., joined, post, p. 577.
523
CONSTI 2 CASES Free Exercise of Religion
Douglas Laycock argued the cause for petitioners. With him on the
briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A. Duarte.
Richard G. Garrett argued the cause for respondent.
With him on the brief were Stuart H. Singer and Steven M.
Goldsmith.*
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part II-A-2.t
The principle that government may not enact laws that suppress
religious belief or practice is so well understood that few violations
are recorded in our opinions. Cf. McDaniel v. Paty, 435 U. S.
618 (1978); Fowler v. Rhode Island, 345 U. S. 67 (1953). Concerned
that this fundamental nonpersecution principle of the First
Amendment was implicated here, however, we granted certiorari.
503 U. S. 935 (1992).
*Briefs of amici curiae urging reversal were filed for Americans
United for Separation of Church and State et al. by Edward
McGlynn Gaffney, Jr., Steven T. McFarland, Bradley P.
Jacob, and Michael W McConnell; for the Council on Religious
Freedom by Lee Boothby, Robert W Nixon, Walter E.
Carson, and Rolland Truman; and for the Rutherford Institute
by John W Whitehead.
Briefs of amici curiae urging affirmance were filed for the
International Society for Animal Rights et al. by Henry Mark
Holzer; for People for the Ethical Treatment of Animals et al.
by Gary L. Francione; and for the Washington Humane Society by E.
Edward Bruce.
Briefs of amici curiae were filed for the United States Catholic
Conference by Mark E. Chopko and John A. Liekweg; for the
Humane Society of the United States et al. by Peter Buscemi,
Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for
the Institute for Animal Rights Law et al. by Henry Mark Holzer; and
for the National Jewish Commission on Law and Public Affairs
by Nathan Lewin and Dennis Rapps.
Page 159 of 267
tTHE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all
but Part II-A-2 of this opinion. JUSTICE WHITE joins all but Part II-A of
this opinion. JUSTICE SOUTER joins only Parts I, III, and IV of this
opinion.
524
524 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Our review confirms that the laws in question were enacted by
officials who did not understand, failed to perceive, or chose to
ignore the fact that their official actions violated the Nation's
essential commitment to religious freedom. The challenged laws
had an impermissible object; and in all events the principle of
general applicability was violated because the secular ends
asserted in defense of the laws were pursued only with respect to
conduct motivated by religious beliefs. We invalidate the
challenged enactments and reverse the judgment of the Court of
Appeals.
IA
This case involves practices of the Santeria religion, which
originated in the 19th century. When hundreds of thousands of
members of the Yoruba people were brought as slaves from
western Africa to Cuba, their traditional African religion absorbed
significant elements of Roman Catholicism. The resulting
syncretion, or fusion, is Santeria, "the way of the saints." The
Cuban Yoruba express their devotion to spirits, called oris
has, through the iconography of Catholic saints, Catholic symbols
are often present at Santeria rites, and Santeria devotees attend
the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD Fla.
1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1
Encyclopedia of the American Religious Experience 183 (C. Lippy &
P. Williams eds. 1988).
The Santeria faith teaches that every individual has a destiny from
God, a destiny fulfilled with the aid and energy of the oris has. The
basis of the Santeria religion is the nurture of a personal relation
CONSTI 2 CASES Free Exercise of Religion
with the oris has, and one of the principal forms of devotion is an
animal sacrifice. 13 Encyclopedia of Religion, supra, at 66. The
sacrifice of animals as part of religious rituals has ancient roots.
See generally 12 id., at 554-556. Animal sacrifice is mentioned
throughout the Old Testament, see 14 Encyclopaedia Judaica 600,
600-
525
605 (1971), and it played an important role in the practice of
Judaism before destruction of the second Temple in Jerusalem, see
id., at 605-612. In modern Islam, there is an annual sacrifice
commemorating Abraham's sacrifice of a ram in the stead of his
son. See C. Glasse, Concise Encyclopedia of Islam 178 (1989); 7
Encyclopedia of Religion, supra, at 456.
According to Santeria teaching, the orishas are powerful but not
immortal. They depend for survival on the sacrifice. Sacrifices are
performed at birth, marriage, and death rites, for the cure of the
sick, for the initiation of new members and priests, and during an
annual celebration. Animals sacrificed in Santeria rituals include
chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and
turtles. The animals are killed by the cutting of the carotid arteries
in the neck. The sacrificed animal is cooked and eaten, except after
healing and death rituals. See 723 F. Supp., at H71-1472; 13
Encyclopedia of Religion, supra, at 66; M. Gonzalez- Wippler, The
Santeria Experience 105 (1982).
Santeria adherents faced widespread persecution in Cuba, so the
religion and its rituals were practiced in secret. The open practice of
Santeria and its rites remains infrequent. See 723 F. SUPP.,;lt 1470;
13 Encyclopedia of Religion, supra, at 67; M. Gonzalez-Wippler,
Santeria: The Religion 3-4 (1989). The religion was brought to this
Nation most often by exiles from the Cuban revolution. The District
Court estimated that there are at least 50,000 practitioners in
South Florida today. See 723 F. Supp., at 1470.
B
Page 160 of 267
Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-
for-profit corporation organized under Florida law in 1973. The
Church and its congregants practice the Santeria religion. The
president of the Church is petitioner Ernesto Pichardo, who is also
the Church's priest and holds the religious title of Italero, the
second highest in the Santeria faith. In April 1987, the Church
leased land in
526
526 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
the city of Hialeah, Florida, and announced plans to establish a
house of worship as well as a school, cultural center, and museum.
Pichardo indicated that the Church's goal was to bring the practice
of the Santeria faith, including its ritual of animal sacrifice, into the
open. The Church began the process of obtaining utility service and
receiving the necessary licensing, inspection, and zoning approvals.
Although the Church's efforts at obtaining the necessary licenses
and permits were far from smooth, see 723 F. Supp., at 1477-1478,
it appears that it received all needed approvals by early August
1987.
The prospect of a Santeria church in their midst was distressing to
many members of the Hialeah community, and the announcement
of the plans to open a Santeria church in Hialeah prompted the city
council to hold an emergency public session on June 9, 1987. The
resolutions and ordinances passed at that and later meetings are
set forth in the Appendix following this opinion.
A summary suffices here, beginning with the enactments passed at
the June 9 meeting. First, the city council adopted Resolution 87-66,
which noted the "concern" expressed by residents of the city "that
certain religions may propose to engage in practices which are
inconsistent with public morals, peace or safety," and declared that
"[t]he City reiterates its commitment to a prohibition against any
and all acts of any and all religious groups which are inconsistent
with public morals, peace or safety." Next, the council approved an
emergency ordinance, Ordinance 87-40, which incorporated in full,
CONSTI 2 CASES Free Exercise of Religion
except as to penalty, Florida's animal cruelty laws. Fla. Stat. ch.
828 (1987). Among other things, the incorporated state law
subjected to criminal punishment "[w]hoever ... unnecessarily or
cruelly ... kills any animal." §828.12.
The city council desired to undertake further legislative action, but
Florida law prohibited a municipality from enacting legislation
relating to animal cruelty that conflicted with
527
state law. § 828.27(4). To obtain clarification, Hialeah's city attorney
requested an opinion from the attorney general of Florida as to
whether § 828.12 prohibited "a religious group from sacrificing an
animal in a religious ritual or practice" and whether the city could
enact ordinances "making religious animal sacrifice unlawful." The
attorney general responded in mid-July. He concluded that the
"ritual sacrifice of animals for purposes other than food
consumption" was not a "necessary" killing and so was prohibited
by § 828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of the Atty.
Gen. 146, 147, 149 (1988). The attorney general appeared to
define "unnecessary" as "done without any useful motive, in a spirit
of wanton cruelty or for the mere pleasure of destruction without
being in any sense beneficial or useful to the person killing the
animal." Id., at 149, n. 11. He advised that religious animal sacrifice
was against state law, so that a city ordinance prohibiting it would
not be in conflict. Id., at 151.
The city council responded at first with a hortatory enactment,
Resolution 87-90, that noted its residents' "great concern regarding
the possibility of public ritualistic animal sacrifices" and the state-
law prohibition. The resolution declared the city policy "to oppose
the ritual sacrifices of animals" within Hialeah and announced that
any person or organization practicing animal sacrifice "will be
prosecuted."
In September 1987, the city council adopted three substantive
ordinances addressing the issue of religious animal sacrifice.
Ordinance 87-52 defined "sacrifice" as "to unnecessarily kill,
Page 161 of 267
torment, torture, or mutilate an animal in a public or private ritual
or ceremony not for the primary purpose of food consumption," and
prohibited owning or possessing an animal "intending to use such
animal for food purposes." It restricted application of this
prohibition, however, to any individual or group that "kills,
slaughters or sacrifices animals for any type of ritual, regardless of
whether or not the flesh or blood of the animal is to be consumed."
The ordinance
528
528 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
contained an exemption for slaughtering by "licensed
establishment[s]" of animals "specifically raised for food purposes."
Declaring, moreover, that the city council "has determined that the
sacrificing of animals within the city limits is contrary to the public
health, safety, welfare and morals of the community," the city
council adopted Ordinance 87-71. That ordinance defined
"sacrifice" as had Ordinance 87-52, and then provided that "[i]t
shall be unlawful for any person, persons, corporations or
associations to sacrifice any animal within the corporate limits of
the City of Hialeah, Florida." The final Ordinance, 87-72, defined
"slaughter" as "the killing of animals for food" and prohibited
slaughter outside of areas zoned for slaughterhouse use. The
ordinance provided an exemption, however, for the slaughter or
processing for sale of "small numbers of hogs and/or cattle per
week in accordance with an exemption provided by state law." All
ordinances and resolutions passed the city council by unanimous
vote. Violations of each of the four ordinances were punishable by
fines not exceeding $500 or imprisonment not exceeding 60 days,
or both.
Following enactment of these ordinances, the Church and Pichardo
filed this action pursuant to 42 U. S. C. § 1983 in the United States
District Court for the Southern District of Florida. Named as
defendants were the city of Hialeah and its mayor and members of
its city council in their individual capacities. Alleging violations of
petitioners' rights under, inter alia, the Free Exercise Clause, the
complaint sought a declaratory judgment and injunctive and
CONSTI 2 CASES Free Exercise of Religion
monetary relief. The District Court granted summary judgment to
the individual defendants, finding that they had absolute immunity
for their legislative acts and that the ordinances and resolutions
adopted by the council did not constitute an official policy of
harassment, as alleged by petitioners. 688 F. Supp. 1522 (SD Fla.
1988).
After a 9-day bench trial on the remaining claims, the District Court
ruled for the city, finding no violation of petition-
529
ers' rights under the Free Exercise Clause. 723 F. Supp. 1467 (SD
Fla. 1989). (The court rejected as well petitioners' other claims,
which are not at issue here.) Although acknowledging that "the
ordinances are not religiously neutral," id., at 1476, and that the
city's concern about animal sacrifice was "prompted" by the
establishment of the Church in the city, id., at 1479, the District
Court concluded that the purpose of the ordinances was not to
exclude the Church from the city but to end the practice of animal
sacrifice, for whatever reason practiced, id., at 1479,1483. The
court also found that the ordinances did not target religious
conduct "on their face," though it noted that in any event
"specifically regulating [religious] conduct" does not violate the
First Amendment "when [the conduct] is deemed inconsistent with
public health and welfare." Id., at 1483-1484. Thus, the court
concluded that, at most, the ordinances' effect on petitioners'
religious conduct was "incidental to [their] secular purpose and
effect." Id., at 1484.
The District Court proceeded to determine whether the
governmental interests underlying the ordinances were compelling
and, if so, to balance the "governmental and religious interests."
The court noted that "[t]his 'balance depends upon the cost to the
government of altering its activity to allow the religious practice to
continue unimpeded versus the cost to the religious interest
imposed by the government activity.'" Ibid., quoting Grosz v. City of
Miami Beach, 721 F.2d 729, 734 (CAll 1983), cert. denied, 469 U. S.
827 (1984). The court found four compelling interests. First, the
court found that animal sacrifices present a substantial health risk,
Page 162 of 267
both to participants and the general public. According to the court,
animals that are to be sacrificed are often kept in unsanitary
conditions and are uninspected, and animal remains are found in
public places. 723 F. Supp., at 1474-1475, 1485. Second, the court
found emotional injury to children who witness the sacrifice of
animals. Id., at 1475-1476, 1485-1486. Third, the court found
compelling the city's in-
530
530 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
terest in protecting animals from cruel and unnecessary killing. The
court determined that the method of killing used in Santeria
sacrifice was "unreliable and not humane, and that the animals,
before being sacrificed, are often kept in conditions that produce a
great deal of fear and stress in the animal." Id., at 1472-1473,
1486. Fourth, the District Court found compelling the city's interest
in restricting the slaughter or sacrifice of animals to areas zoned for
slaughterhouse use. Id., at 1486. This legal determination was not
accompanied by factual findings.
Balancing the competing governmental and religious interests, the
District Court concluded the compelling governmental interests
"fully justify the absolute prohibition on ritual sacrifice"
accomplished by the ordinances. Id., at 1487. The court also
concluded that an exception to the sacrifice prohibition for religious
conduct would "'unduly interfere with fulfillment of the
governmental interest'" because any more narrow restrictions-e. g.,
regulation of disposal of animal carcasses-would be unenforceable
as a result of the secret nature of the Santeria religion. Id., at 1486-
1487, and nn. 57-59. A religious exemption from the city's
ordinances, concluded the court, would defeat the city's compelling
interests in enforcing the prohibition. Id., at 1487.
The Court of Appeals for the Eleventh Circuit affirmed in a one-
paragraph per curiam opinion. Judgt. order reported at 936 F.2d
586 (1991). Choosing not to rely on the District Court's recitation of
a compelling interest in promoting the welfare of children, the Court
CONSTI 2 CASES Free Exercise of Religion
of Appeals stated simply that it concluded the ordinances were
consistent with the Constitution. App. to Pet. for Cert. A2. It
declined to address the effect of Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U. S. 872 (1990), decided after the
District Court's opinion, because the District Court "employed an
arguably stricter standard" than that applied in Smith. App. to Pet.
for Cert. A2, n. 1.
531
II
The Free Exercise Clause of the First Amendment, which has been
applied to the States through the Fourteenth Amendment,
see Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), provides
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof .... " (Emphasis
added.) The city does not argue that Santeria is not a "religion"
within the meaning of the First Amendment. Nor could it. Although
the practice of animal sacrifice may seem abhorrent to some,
"religious beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment
protection." Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U. S. 707, 714 (1981). Given the historical association
between animal sacrifice and religious worship, see supra, at 524-
525, petitioners' assertion that animal sacrifice is an integral part of
their religion "cannot be deemed bizarre or
incredible." Frazee v. Illinois Dept. of Employment Security, 489 U.
S. 829, 834, n. 2 (1989). Neither the city nor the courts below,
moreover, have questioned the sincerity of petitioners' professed
desire to conduct animal sacrifices for religious reasons. We must
consider petitioners' First Amendment claim.
In addressing the constitutional protection for free exercise of
religion, our cases establish the general proposition that a law that
is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental
effect of burdening a particular religious practice. Employment Div.,
Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and
general applicability are interrelated, and, as becomes apparent in
Page 163 of 267
this case, failure to satisfy one requirement is a likely indication
that the other has not been satisfied. A law failing to satisfy these
requirements must be justified by a compelling governmental
interest and must be narrowly tailored to advance
532
532 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
that interest. These ordinances fail to satisfy
the Smith requirements. We begin by discussing neutrality.
A played a role in some. In McDaniel v. Paty, 435 U. S. 618 (1978), for
In our Establishment Clause cases we have often stated the
principle that the First Amendment forbids an official purpose to
disapprove of a particular religion or of religion in general. See, e.
g., Board of Ed. of Westside Community Schools (Dist. 66)
v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion); School
Dist. of Grand Rapids v. Ball, 473 U. S. 373, 389
(1985); Wallace v. Jaffree, 472 U. S. 38, 56
(1985); Epperson v. Arkansas, 393 U. S. 97, 106-107 (1968); School
Dist. of Abington v. Schempp, 374 U. S. 203, 225
(1963); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947).
These cases, however, for the most part have addressed
governmental efforts to benefit religion or particular religions, and
so have dealt with a question different, at least in its formulation
and emphasis, from the issue here. Petitioners allege an attempt to
disfavor their religion because of the religious ceremonies it
commands, and the Free Exercise Clause is dispositive in our
analysis.
At a minimum, the protections of the Free Exercise Clause pertain if
the law at issue discriminates against some or all religious beliefs
or regulates or prohibits conduct because it is undertaken for
religious reasons. See, e. g., Braunfeld v. Brown, 366 U. S. 599, 607
(1961) (plurality opinion); Fowler v. Rhode Island, 345 U. S., at 69-
70. Indeed, it was "historical instances of religious persecution and
intolerance that gave concern to those who drafted the Free
CONSTI 2 CASES Free Exercise of Religion
Exercise Clause." Bowen v. Roy, 476 U. S. 693, 703 (1986) (opinion
of Burger, C. J.). See J. Story, Commentaries on the Constitution of
the United States §§ 991-992 (abridged ed. 1833) (reprint 1987); T.
Cooley, Constitutional Limitations 467 (1868) (reprint
1972); McGowan v. Maryland, 366 U. S. 420, 464, and n. 2 (1961)
(opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U. S. 157, 179
(1943) (Jackson, J., concurring in re-
533
suIt); Davis v. Beason, 133 U. S. 333, 342 (1890). These principles,
though not often at issue in our Free Exercise Clause cases, have
example, we invalidated a state law that disqualified members of
the clergy from holding certain public offices, because it "impose[d]
special disabilities on the basis of ... religious status," Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 877.
On the same principle, in Fowler v. Rhode Island, supra, we found
that a municipal ordinance was applied in an unconstitutional
manner when interpreted to prohibit preaching in a public park by a
Jehovah's Witness but to permit preaching during the course of a
Catholic mass or Protestant church service. See
also Niemotko v. Maryland, 340 U. S. 268, 272-273 (1951).
Cf. Larson v. Valente, 456 U. S. 228 (1982) (state statute that
treated some religious denominations more favorably than others
violated the Establishment Clause).
1
Although a law targeting religious beliefs as such is never
permissible, McDaniel v. Paty, supra, at 626
(pluralityopinion); Cantwell v. Connecticut, supra, at 303-304, if the
object of a law is to infringe upon or restrict practices because of
their religious motivation, the law is not neutral, see Employment
Div., Dept. of Human Resources of Ore. v. Smith, supra, at 878-879;
and it is invalid unless it is justified by a compelling interest and is
narrowly tailored to advance that interest. There are, of course,
many ways of demonstrating that the object or purpose of a law is
the suppression of religion or religious conduct. To determine the
object of a law, we must begin with its text, for the minimum
Page 164 of 267
requirement of neutrality is that a law not discriminate on its face.
A law lacks facial neutrality if it refers to a religious practice without
a secular meaning discernible from the language or context.
Petitioners contend that three of the ordinances fail this test of
facial neutrality because they use the words
534
534 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
"sacrifice" and "ritual," words with strong religious connotations.
Brief for Petitioners 16-17. We agree that these words are
consistent with the claim of facial discrimination, but the argument
is not conclusive. The words "sacrifice" and "ritual" have a religious
origin, but current use admits also of secular meanings. See
Webster's Third New International Dictionary 1961, 1996 (1971).
See also 12 Encyclopedia of Religion, at 556 ("[T]he
word sacrifice ultimately became very much a secular term in
common usage"). The ordinances, furthermore, define "sacrifice" in
secular terms, without referring to religious practices.
We reject the contention advanced by the city, see Brief for
Respondent 15, that our inquiry must end with the text of the laws
at issue. Facial neutrality is not determinative. The Free Exercise
Clause, like the Establishment Clause, extends beyond facial
discrimination. The Clause "forbids subtle departures from
neutrality," Gillette v. United States, 401 U. S. 437, 452 (1971), and
"covert suppression of particular religious beliefs," Bowen v. Roy,
supra, at 703 (opinion of Burger, C. J.). Official action that targets
religious conduct for distinctive treatment cannot be shielded by
mere compliance with the requirement of facial neutrality. The Free
Exercise Clause protects against governmental hostility which is
masked as well as overt. "The Court must survey meticulously the
circumstances of governmental categories to eliminate, as it were,
religious gerrymanders." Walz v. Tax Comm'n of New York City, 397
U. S. 664, 696 (1970) (Harlan, J., concurring).
The record in this case compels the conclusion that suppression of
the central element of the Santeria worship service was the object
CONSTI 2 CASES Free Exercise of Religion
of the ordinances. First, though use of the words "sacrifice" and
"ritual" does not compel a finding of improper targeting of the
Santeria religion, the choice of these words is support for our
conclusion. There are further respects in which the text of the city
council's enactments discloses the improper attempt to target
Santeria.
535
Resolution 87-66, adopted June 9, 1987, recited that "residents and
citizens of the City of Hialeah have expressed their concern that
certain religions may propose to engage in practices which are
inconsistent with public morals, peace or safety," and "reiterate[d]"
the city's commitment to prohibit "any and all [such] acts of any
and all religious groups." No one suggests, and on this record it
cannot be maintained, that city officials had in mind a religion other
than Santeria.
It becomes evident that these ordinances target Santeria sacrifice
when the ordinances' operation is considered. Apart from the text,
the effect of a law in its real operation is strong evidence of its
object. To be sure, adverse impact will not always lead to a finding
of impermissible targeting. For example, a social harm may have
been a legitimate concern of government for reasons quite apart
from discrimination. McGowan v. Maryland, 366 U. S., at 442.
See, e. g., Reynolds v. United States, 98 U. S.
145 (1879); Davis v. Beason, 133 U. S. 333(1890). See also Ely,
Legislative and Administrative Motivation in Constitutional Law, 79
Yale L. J. 1205, 1319 (1970). The subject at hand does implicate, of
course, multiple concerns unrelated to religious animosity, for
example, the suffering or mistreatment visited upon the sacrificed
animals and health hazards from improper disposal. But the
ordinances when considered together disclose an object remote
from these legitimate concerns. The design of these laws
accomplishes instead a "religious gerrymander," Walz v. Tax
Comm'n of New York City, supra, at 696 (Harlan, J., concurring), an
impermissible attempt to target petitioners and their religious
practices.
Page 165 of 267
It is a necessary conclusion that almost the only conduct subject to
Ordinances 87-40, 87-52, and 87-71 is the religious exercise of
Santeria church members. The texts show that they were drafted in
tandem to achieve this result. We begin with Ordinance 87-71. It
prohibits the sacrifice of animals, but defines sacrifice as "to
unnecessarily kill ... an animal in a public or private ritual or
ceremony not for the
536
536 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
primary purpose of food consumption." The definition excludes
almost all killings of animals except for religious sacrifice, and the
primary purpose requirement narrows the proscribed category even
further, in particular by exempting kosher slaughter, see 723 F.
Supp., at 1480. We need not discuss whether this differential
treatment of two religions is itself an independent constitutional
violation. Cf. Larson v. Valente, 456 U. S., at 244-246. It suffices to
recite this feature of the law as support for our conclusion that
Santeria alone was the exclusive legislative concern. The net result
of the gerrymander is that few if any killings of animals are
prohibited other than Santeria sacrifice, which is proscribed
because it occurs during a ritual or ceremony and its primary
purpose is to make an offering to the oris has, not food
consumption. Indeed, careful drafting ensured that, although
Santeria sacrifice is prohibited, killings that are no more necessary
or humane in almost all other circumstances are unpunished.
Operating in similar fashion is Ordinance 87-52, which prohibits the
"possess[ion], sacrifice, or slaughter" of an animal with the "inten[t]
to use such animal for food purposes." This prohibition, extending
to the keeping of an animal as well as the killing itself, applies if the
animal is killed in "any type of ritual" and there is an intent to use
the animal for food, whether or not it is in fact consumed for food.
The ordinance exempts, however, "any licensed [food]
establishment" with regard to "any animals which are specifically
raised for food purposes," if the activity is permitted by zoning and
other laws. This exception, too, seems intended to cover kosher
slaughter. Again, the burden of the ordinance, in practical terms,
CONSTI 2 CASES Free Exercise of Religion
falls on Santeria adherents but almost no others: If the killing is-
unlike most Santeria sacrifices-unaccompanied by the intent to use
the animal for food, then it is not prohibited by Ordinance 87-52; if
the killing is specifically for food but does not occur during the
course of "any type of ritual," it again falls outside the prohibition;
and if
537
the killing is for food and occurs during the course of a ritual, it is
still exempted if it occurs in a properly zoned and licensed
establishment and involves animals "specifically raised for food
purposes." A pattern of exemptions parallels the pattern of narrow
prohibitions. Each contributes to the gerrymander.
Ordinance 87-40 incorporates the Florida animal cruelty statute,
Fla. Stat. § 828.12 (1987). Its prohibition is broad on its face,
punishing "[w]hoever ... unnecessarily ... kills any animal." The city
claims that this ordinance is the epitome of a neutral prohibition.
Brief for Respondent 13-14. The problem, however, is the
interpretation given to the ordinance by respondent and the Florida
attorney general. Killings for religious reasons are deemed
unnecessary, whereas most other killings fall outside the
prohibition. The city, on what seems to be a per se basis, deems
hunting, slaughter of animals for food, eradication of insects and
pests, and euthanasia as necessary. See id., at 22. There is no
indication in the record that respondent has concluded that hunting
or fishing for sport is unnecessary. Indeed, one of the few reported
Florida cases decided under § 828.12 concludes that the use of live
rabbits to train greyhounds is not unnecessary.
See Kiper v. State, 310 So. 2d 42 (Fla. App.), cert. denied, 328 So.
2d 845 (Fla. 1975). Further, because it requires an evaluation of the
particular justification for the killing, this ordinance represents a
system of "individualized governmental assessment of the reasons
for the relevant conduct," Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U. S., at 884. As we noted
in Smith, in circumstances in which individualized exemptions from
a general requirement are available, the government "may not
refuse to extend that system to cases of 'religious hardship' without
compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708
Page 166 of 267
(opinion of Burger, C. J.). Respondent's application of the
ordinance's test of necessity devalues religious reasons for killing
by judging them to be of lesser import than nonre-
538
538 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
ligious reasons. Thus, religious practice is being singled out for
discriminatory treatment. Id., at 722, and n. 17 (STEVENS, J.,
concurring in part and concurring in result); id., at 708 (opinion of
Burger, C. J.); United States v. Lee, 455 U. S. 252, 264, n. 3 (1982)
(STEVENS, J., concurring in judgment).
We also find significant evidence of the ordinances' improper
targeting of Santeria sacrifice in the fact that they proscribe more
religious conduct than is necessary to achieve their stated ends. It
is not unreasonable to infer, at least when there are no persuasive
indications to the contrary, that a law which visits "gratuitous
restrictions" on religious conduct, McGowan v. Maryland, 366 U. S.,
at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated
governmental interests, but to suppress the conduct because of its
religious motivation.
The legitimate governmental interests in protecting the public
health and preventing cruelty to animals could be addressed by
restrictions stopping far short of a fiat prohibition of all Santeria
sacrificial practice. * If improper disposal, not the sacrifice itself, is
the harm to be prevented, the city could have imposed a general
regulation on the disposal of organic garbage. It did not do so.
Indeed, counsel for the city conceded at oral argument that, under
the ordinances, Santeria sacrifices would be illegal even if they
occurred in licensed, inspected, and zoned slaughterhouses. Tr. of
Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances
prohibit Santeria sacrifice even when it does not threaten the city's
*Respondent advances the additional governmental interest in
prohibiting the slaughter or sacrifice of animals in areas of the city
not zoned for slaughterhouses, see Brief for Respondent 28-31, and
CONSTI 2 CASES Free Exercise of Religion
the District Court found this interest to be compelling, see 723 F.
Supp. 1467, 1486 (SD Fla. 1989). This interest cannot justify
Ordinances 87-40, 87-52, and 87-71, for they apply to conduct
without regard to where it occurs. Ordinance 87-72 does impose a
locational restriction, but this asserted governmental interest is a
mere restatement of the prohibition itself, not a justification for it.
In our discussion, therefore, we put aside this asserted interest.
539
interest in the public health. The District Court accepted the
argument that narrower regulation would be unenforceable
because of the secrecy in the Santeria rituals and the lack of any
central religious authority to require compliance with secular
disposal regulations. See 723 F. Supp., at 1486-1487, and nn. 58-
59. It is difficult to understand, however, how a prohibition of the
sacrifices themselves, which occur in private, is enforceable if a ban
on improper disposal, which occurs in public, is not. The neutrality
of a law is suspect if First Amendment freedoms are curtailed to
prevent isolated collateral harms not themselves prohibited by
direct regulation. See, e. g., Schneider v. State, 308 U. S. 147, 162
(1939).
Under similar analysis, narrower regulation would achieve the city's
interest in preventing cruelty to animals. With regard to the city's
interest in ensuring the adequate care of animals, regulation of
conditions and treatment, regardless of why an animal is kept, is
the logical response to the city's concern, not a prohibition on
possession for the purpose of sacrifice. The same is true for the
city's interest in prohibiting cruel methods of killing. Under federal
and Florida law and Ordinance 87-40, which incorporates Florida
law in this regard, killing an animal by the "simultaneous and
instantaneous severance of the carotid arteries with a sharp
instrument"-the method used in kosher slaughter-is approved as
humane. See 7 U. S. C. § 1902(b); Fla. Stat. § 828.23(7)(b) (1991);
Ordinance 87-40, § 1. The District Court found that, though Santeria
sacrifice also results in severance of the carotid arteries, the
method used during sacrifice is less reliable and therefore not
humane. See 723 F. Supp., at 14721473. If the city has a real
concern that other methods are less humane, however, the subject
Page 167 of 267
of the regulation should be the method of slaughter itself, not a
religious classification that is said to bear some general relation to
it.
Ordinance 87-72-unlike the three other ordinancesdoes appear to
apply to substantial nonreligious conduct and
540
540 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Opinion of KENNEDY, J.
not to be overbroad. For our purposes here, however, the four
substantive ordinances may be treated as a group for neutrality
purposes. Ordinance 87-72 was passed the same day as Ordinance
87-71 and was enacted, as were the three others, in direct
response to the opening of the Church. It would be implausible to
suggest that the three other ordinances, but not Ordinance 87-72,
had as their object the suppression of religion. We need not decide
whether Ordinance 87-72 could survive constitutional scrutiny if it
existed separately; it must be invalidated because it functions, with
the rest of the enactments in question, to suppress Santeria
religious worship.
2 "people were put in jail for practicing this religion," the audience
In determining if the object of a law is a neutral one under the Free
Exercise Clause, we can also find guidance in our equal protection
cases. As Justice Harlan noted in the related context of the
Establishment Clause, "[n]eutrality in its application requires an
equal protection mode of analysis." Walz v. Tax Comm'n of New
York City, 397 U. S., at 696 (concurring opinion). Here, as in equal
protection cases, we may determine the city council's object from
both direct and circumstantial evidence. Arlington
Heights v. Metropolitan Housing Development Corp., 429 U. S. 252,
266 (1977). Relevant evidence includes, among other things, the
historical background of the decision under challenge, the specific
series of events leading to the enactment or official policy in
CONSTI 2 CASES Free Exercise of Religion
question, and the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body. Id., at 267-268. These objective factors bear
on the question of discriminatory object. Personnel Administrator of
Mass. v. Feeney, 442 U. S. 256, 279, n. 24 (1979).
That the ordinances were enacted "'because of,' not merely 'in
spite of,'" their suppression of Santeria religious practice, id., at
279, is revealed by the events preceding their enactment. Although
respondent claimed at oral argument
541
that it had experienced significant problems resulting from the
sacrifice of animals within the city before the announced opening of
the Church, Tr. of Oral Arg. 27, 46, the city council made no attempt
to address the supposed problem before its meeting in June 1987,
just weeks after the Church announced plans to open. The minutes
and taped excerpts of the June 9 session, both of which are in the
record, evidence significant hostility exhibited by residents,
members of the city council, and other city officials toward the
Santeria religion and its practice of animal sacrifice. The public
crowd that attended the June 9 meetings interrupted statements by
council members critical of Santeria with cheers and the brief
comments of Pichardo with taunts. When Councilman Martinez, a
supporter of the ordinances, stated that in prerevolution Cuba
applauded. Taped excerpts of Hialeah City Council Meeting, June 9,
1987.
Other statements by members of the city council were in a similar
vein. For example, Councilman Martinez, after noting his belief that
Santeria was outlawed in Cuba, questioned: "[I]f we could not
practice this [religion] in our homeland [Cuba], why bring it to this
country?" Councilman Cardoso said that Santeria devotees at the
Church "are in violation of everything this country stands for."
Councilman Mejides indicated that he was "totally against the
sacrificing of animals" and distinguished kosher slaughter because
it had a "real purpose." The "Bible says we are allowed to sacrifice
an animal for consumption," he continued, "but for any other
Page 168 of 267
purposes, I don't believe that the Bible allows that." The president
of the city council, Councilman Echevarria, asked: "What can we do
to prevent the Church from opening?"
Various Hialeah city officials made comparable comments.
The chaplain of the Hialeah Police Department told the city council
that Santeria was a sin, "foolishness," "an abomination to the Lord,"
and the worship of "demons." He advised
542
542 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
the city council: "We need to be helping people and sharing with
them the truth that is found in Jesus Christ." He concluded: "I would
exhort you ... not to permit this Church to exist." The city attorney
commented that Resolution 87-66 indicated: "This community will
not tolerate religious practices which are abhorrent to its
citizens .... " Ibid. Similar comments were made by the deputy city
attorney. This history discloses the object of the ordinances to
target animal sacrifice by Santeria worshippers because of its
religious motivation.
3 585 (1983); Larson v. Valente, 456 U. S., at 245-246; Presbyterian
In sum, the neutrality inquiry leads to one conclusion: The
ordinances had as their object the suppression of religion. The
pattern we have recited discloses animosity to Santeria adherents
and their religious practices; the ordinances by their own terms
target this religious exercise; the texts of the ordinances were
gerrymandered with care to proscribe religious killings of animals
but to exclude almost all secular killings; and the ordinances
suppress much more religious conduct than is necessary in order to
achieve the legitimate ends asserted in their defense. These
ordinances are not neutral, and the court below committed clear
error in failing to reach this conclusion.
B animals, the ordinances are drafted with care to forbid few killings
CONSTI 2 CASES Free Exercise of Religion
We turn next to a second requirement of the Free Exercise Clause,
the rule that laws burdening religious practice must be of general
applicability. Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U. S., at 879-881. All laws are selective to some
extent, but categories of selection are of paramount concern when
a law has the incidental effect of burdening religious practice. The
Free Exercise Clause "protect[s] religious observers against unequal
treatment," Hobbie v. Unemployment Appeals Comm'n of Fla., 480
U. S. 136, 148 (1987) (STEVENS, J., concurring in judgment), and
inequality results when a legislature decides that
543
the governmental interests it seeks to advance are worthy of being
pursued only against conduct with a religious motivation.
The principle that government, in pursuit of legitimate interests,
cannot in a selective manner impose burdens only on conduct
motivated by religious belief is essential to the protection of the
rights guaranteed by the Free Exercise Clause. The principle
underlying the general applicability requirement has parallels in our
First Amendment jurisprudence. See, e. g., Cohen v. Cowles Media
Co., 501 U. S. 663, 669-670 (1991); University of
Pennsylvania v. EEOC, 493 U. S. 182, 201 (1990); Minneapolis
Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575,
Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U. S. 440, 449 (1969). In this case we need not define
with precision the standard used to evaluate whether a prohibition
is of general application, for these ordinances fall well below the
minimum standard necessary to protect First Amendment rights.
Respondent claims that Ordinances 87-40, 87-52, and 87-71
advance two interests: protecting the public health and preventing
cruelty to animals. The ordinances are underinclusive for those
ends. They fail to prohibit nonreligious conduct that endangers
these interests in a similar or greater degree than Santeria sacrifice
does. The underinclusion is substantial, not inconsequential.
Despite the city's proffered interest in preventing cruelty to
Page 169 of 267
but those occasioned by religious sacrifice. Many types of animal
deaths or kills for nonreligious reasons are either not prohibited or
approved by express provision. For example, fishing-which occurs
in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out
57 (1991)-is legal. Extermination of mice and rats within a home is
also permitted. Florida law incorporated by Ordinance 87-40
sanctions
544
544 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
euthanasia of "stray, neglected, abandoned, or unwanted animals,"
Fla. Stat. § 828.058 (1987); destruction of animals judicially
removed from their owners "for humanitarian reasons" or when the
animal "is of no commercial value," § 828.073(4)(c)(2); the infliction
of pain or suffering "in the interest of medical science," § 828.02;
the placing of poison in one's yard or enclosure, § 828.08; and the
use of a live animal "to pursue or take wildlife or to participate in
any hunting," § 828.122(6)(b), and "to hunt wild hogs," §
828.122(6)(e).
The city concedes that "neither the State of Florida nor the City has
enacted a generally applicable ban on the killing of animals." Brief
for Respondent 21. It asserts, however, that animal sacrifice is
"different" from the animal killings that are permitted by
law. Ibid. According to the city, it is "self-evident" that killing
animals for food is "important"; the eradication of insects and pests
is "obviously justified"; and the euthanasia of excess animals
"makes sense." Id., at 22. These ipse dixits do not explain why
religion alone must bear the burden of the ordinances, when many
of these secular killings fall within the city's interest in preventing
the cruel treatment of animals.
The ordinances are also underinclusive with regard to the city's
interest in public health, which is threatened by the disposal of
animal carcasses in open public places and the consumption of
uninspected meat, see Brief for Respondent 32, citing 723 F. Supp.,
at 1474-1475, 1485. Neither interest is pursued by respondent with
CONSTI 2 CASES Free Exercise of Religion
regard to conduct that is not motivated by religious conviction. The
health risks posed by the improper disposal of animal carcasses are
the same whether Santeria sacrifice or some nonreligious killing
preceded it. The city does not, however, prohibit hunters from
bringing their kill to their houses, nor does it regulate disposal after
their activity. Despite substantial testimony at trial that the same
public health hazards result from improper disposal of garbage by
restaurants, see 11 Record 566,
545
590-591, restaurants are outside the scope of the ordinances.
Improper disposal is a general problem that causes substantial
health risks, 723 F. Supp., at 1485, but which respondent addresses
only when it results from religious exercise.
The ordinances are underinclusive as well with regard to the health
risk posed by consumption of uninspected meat. Under the city's
ordinances, hunters may eat their kill and fishermen may eat their
catch without undergoing governmental inspection. Likewise, state
law requires inspection of meat that is sold but exempts meat from
animals raised for the use of the owner and "members of his
household and nonpaying guests and employees." Fla. Stat. §
585.88(1)(a) (1991). The asserted interest in inspected meat is not
pursued in contexts similar to that of religious animal sacrifice.
Ordinance 87-72, which prohibits the slaughter of animals outside
of areas zoned for slaughterhouses, is underinclusive on its face.
The ordinance includes an exemption for "any person, group, or
organization" that "slaughters or processes for sale, small numbers
of hogs and/or cattle per week in accordance with an exemption
provided by state law." See Fla. Stat. § 828.24(3) (1991).
Respondent has not explained why commercial operations that
slaughter "small numbers" of hogs and cattle do not implicate its
professed desire to prevent cruelty to animals and preserve the
public health. Although the city has classified Santeria sacrifice as
slaughter, subjecting it to this ordinance, it does not regulate other
killings for food in like manner.
Page 170 of 267
We conclude, in sum, that each of Hialeah's ordinances pursues the
city's governmental interests only against conduct motivated by
religious belief. The ordinances "ha[ve] every appearance of a
prohibition that society is prepared to impose upon [Santeria
worshippers] but not upon itself." Florida Star v. B. J. F., 491 U. S.
524, 542 (1989) (SCALIA, J., concurring in part and concurring in
judgment). This
546
546 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
precise evil is what the requirement of general applicability is
designed to prevent.
III
A law burdening religious practice that is not neutral or not of
general application must undergo the most rigorous of scrutiny. To
satisfy the commands of the First Amendment, a law restrictive of
religious practice must advance" 'interests of the highest order'"
and must be narrowly tailored in pursuit of those
interests. McDaniel v. Paty, 435 U. S., at 628,
quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972). The
compelling interest standard that we apply once a law fails to meet
the Smith requirements is not "water[ed] ... down" but "really
means what it says." Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U. S., at 888. A law that targets religious
conduct for distinctive treatment or advances legitimate
governmental interests only against conduct with a religious
motivation will survive strict scrutiny only in rare cases. It follows
from what we have already said that these ordinances cannot
withstand this scrutiny.
First, even were the governmental interests compelling, the
ordinances are not drawn in narrow terms to accomplish those
interests. As we have discussed, see supra, at 538540, 543-546, all
four ordinances are overbroad or underinclusive in substantial
respects. The proffered objectives are not pursued with respect to
CONSTI 2 CASES Free Exercise of Religion
analogous nonreligious conduct, and those interests could be
achieved by narrower ordinances that burdened religion to a far
lesser degree. The absence of narrow tailoring suffices to establish
the invalidity of the ordinances. See Arkansas Writers' Project, Inc.
Respondent has not demonstrated, moreover, that, in the context
of these ordinances, its governmental interests are compelling.
Where government restricts only conduct protected by the First
Amendment and fails to enact feasible
547
measures to restrict other conduct producing substantial harm or
alleged harm of the same sort, the interest given in justification of
the restriction is not compelling. It is established in our strict
scrutiny jurisprudence that "a law cannot be regarded as protecting
an interest 'of the highest order' ... when it leaves appreciable
damage to that supposedly vital interest unprohibited." Florida
Star v. B. J. F., supra, at 541-542 (SCALIA, J., concurring in part and
concurring in judgment) (citation omitted). See Simon & Schuster,
Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105,
119-120 (1991). Cf. Florida Star v. B. J. F., supra, at 540541;
Smith v. Daily Mail Publishing Co., 443 U. S. 97, 104105 (1979); id.,
at 110 (REHNQUIST, J., concurring in judgment). As we show above,
see supra, at 543-546, the ordinances are underinclusive to a
substantial extent with respect to each of the interests that
respondent has asserted, and it is only conduct motivated by
religious conviction that bears the weight of the governmental
restrictions. There can be no serious claim that those interests
justify the ordinances.
IV
The Free Exercise Clause commits government itself to religious
tolerance, and upon even slight suspicion that proposals for state
intervention stem from animosity to religion or distrust of its
practices, all officials must pause to remember their own high duty
to the Constitution and to the rights it secures. Those in office must
be resolute in resisting importunate demands and must ensure that
Page 171 of 267
the sole reasons for imposing the burdens of law and regulation are
secular. Legislators may not devise mechanisms, overt or
disguised, designed to persecute or oppress a religion or its
practices. The laws here in question were enacted contrary to these
constitutional principles, and they are void.
Reversed.
548
548 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Appendix to opinion of the Court
APPENDIX TO OPINION OF THE COURT
City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987,
provides:
"WHEREAS, residents and citizens of the City of Hialeah have
expressed their concern that certain religions may propose to
engage in practices which are inconsistent with public morals,
peace or safety, and
"WHEREAS, the Florida Constitution, Article I, Declaration of Rights,
Section 3, Religious Freedom, specifically states that religious
freedom shall not justify practices inconsistent with public morals,
peace or safety.
"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
"1. The City reiterates its commitment to a prohibition against any
and all acts of any and all religious groups which are inconsistent
with public morals, peace or safety."
City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9, 1987,
provides:
CONSTI 2 CASES Free Exercise of Religion
"WHEREAS, the citizens of the City of Hialeah, Florida, have
expressed great concern over the potential for animal sacrifices
being conducted in the City of Hialeah; and
"WHEREAS, Section 828.27, Florida Statutes, provides that 'nothing
contained in this section shall prevent any county or municipality
from enacting any ordinance relating to animal control or cruelty to
animals which is identical to the provisions of this Chapter ...
except as to penalty.'
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
549
"Section 1. The Mayor and City Council of the City of Hialeah,
Florida, hereby adopt Florida Statute, Chapter 828-'Cruelty to
Animals' (copy attached hereto and made a part hereof), in its
entirety (relating to animal control or cruelty to animals), except as
to penalty.
"Section 2. Repeal of Ordinances in Conflict.
"All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict.
"Section 3. Penalties.
"Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court.
"Section 4. Inclusion in Code.
"The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be re-
Page 172 of 267
numbered to conform to the uniform numbering system of the
Code.
"Section 5. Severability Clause.
"If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the judge
or decree of a court of competent jurisdiction, such invalidity or
unconstitutionality shall not effect any of the remaining phrases,
clauses, sentences, paragraphs or sections of this ordinance.
"Section 6. Effective Date.
"This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City of
Hialeah."
City of Hialeah Resolution No. 87-90, adopted August 11, 1987,
provides:
"WHEREAS, the residents and citizens of the City of Hialeah,
Florida, have expressed great concern regard-
550
550 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Appendix to opinion of the Court
ing the possibility of public ritualistic animal sacrifices in the City of
Hialeah, Florida; and
"WHEREAS, the City of Hialeah, Florida, has received an opinion
from the Attorney General of the State of Florida, concluding that
public ritualistic animal sacrifices is [sic] a violation of the Florida
State Statute on Cruelty to Animals; and
CONSTI 2 CASES Free Exercise of Religion
"WHEREAS, the Attorney General further held that the sacrificial
killing of animals other than for the primary purpose of food
consumption is prohibited under state law; and
"WHEREAS, the City of Hialeah, Florida, has enacted an ordinance
mirroring state law prohibiting cruelty to animals.
"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
"Section 1. It is the policy of the Mayor and City Council of the City
of Hialeah, Florida, to oppose the ritual sacrifices of animals within
the City of Hialeah, FLorida [sic]. Any individual or organization that
seeks to practice animal sacrifice in violation of state and local law
will be prosecuted."
City of Hialeah, Florida, Ordinance No. 87-52, adopted September
8, 1987, provides:
"WHEREAS, the residents and citizens of the City of Hialeah,
Florida, have expressed great concern regarding the possibility of
public ritualistic animal sacrifices within the City of Hialeah, Florida;
and
"WHEREAS, the City of Hialeah, Florida, has received an opinion
from the Attorney General of the State of Florida, concluding that
public ritualistic animal sacrifice, other than for the primary
purpose of food consumption, is a violation of state law; and
551
"WHEREAS, the City of Hialeah, Florida, has enacted an ordinance
(Ordinance No. 87-40), mirroring the state law prohibiting cruelty to
animals.
"WHEREAS, the City of Hialeah, Florida, now wishes to specifically
prohibit the possession of animals for slaughter or sacrifice within
the City of Hialeah, Florida.
Page 173 of 267
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
"Section 1. Chapter 6 of the Code of Ordinances of the City of
Hialeah, Florida, is hereby amended by adding thereto two (2) new
Sections 6-8 'Definitions' and 6-9 'Prohibition Against Possession Of
Animals For Slaughter Or Sacrifice', which is to read as follows:
"Section 6-8. Definitions
"1. Animal-any living dumb creature.
"2. Sacrifice-to unnecessarily kill, torment, torture, or mutilate an
animal in a public or private ritual or ceremony not for the primary
purpose of food consumption.
"3. Slaughter-the killing of animals for food. "Section 6-9.
Prohibition Against Possession of Animals for Slaughter Or Sacrifice.
"1. No person shall own, keep or otherwise possess, sacrifice, or
slaughter any sheep, goat, pig, cow or the young of such species,
poultry, rabbit, dog, cat, or any other animal, intending to use such
animal for food purposes.
"2. This section is applicable to any group or individual that kills,
slaughters or sacrifices animals for any type of ritual, regardless of
whether or not the flesh or blood of the animal is to be consumed.
"3. Nothing in this ordinance is to be interpreted as prohibiting any
licensed establishment from slaughtering for food purposes any
animals which are specifically
552
552 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
Appendix to opinion of the Court
CONSTI 2 CASES Free Exercise of Religion
raised for food purposes where such activity is properly zoned
and/or permitted under state and local law and under rules
promulgated by the Florida Department of Agriculture.
"Section 2. Repeal of Ordinance in Conflict.
"All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict.
"Section 3. Penalties.
"Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court.
"Section 4. Inclusion in Code.
"The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be re-
numbered to conform to the uniform numbering system of the
Code.
"Section 5. Severability Clause.
"If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the
judgement or decree of a court of competent jurisdiction, such
invalidity or unconstitutionality shall not effect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this
ordinance.
"Section 6. Effective Date.
"This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City of
Hialeah."
City of Hialeah, Florida, Ordinance No. 87-71, adopted September
22, 1987, provides:
Page 174 of 267
"WHEREAS, the City Council of the City of Hialeah, Florida, has
determined that the sacrificing of animals
553
within the city limits is contrary to the public health, safety, welfare
and morals of the community; and
"WHEREAS, the City Council of the City of Hialeah, Florida, desires
to have qualified societies or corporations organized under the laws
of the State of Florida, to be authorized to investigate and
prosecute any violation(s) of the ordinance herein after set forth,
and for the registration of the agents of said societies.
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
"Section 1. For the purpose of this ordinance, the word sacrifice
shall mean: to unnecessarily kill, torment, torture, or mutilate an
animal in a public or private ritual or ceremony not for the primary
purpose of food consumption.
"Section 2. For the purpose of this ordinance, the word animal shall
mean: any living dumb creature.
"Section 3. It shall be unlawful for any person, persons,
corporations or associations to sacrifice any animal within the
corporate limits of the City of Hialeah, Florida.
"Section 4. All societies or associations for the prevention of cruelty
to animals organized under the laws of the State of Florida, seeking
to register with the City of Hialeah for purposes of investigating and
assisting in the prosecution of violations and provisions [sic] of this
Ordinance, shall apply to the City Council for authorization to so
register and shall be registered with the Office of the Mayor of the
City of Hialeah, Florida, following approval by the City Council at a
public hearing in accordance with rules and regulations (i. e.,
criteria) established by the City Council by resolution, and shall
CONSTI 2 CASES Free Exercise of Religion
thereafter, be empowered to assist in the prosection of any
violation of this Ordinance.
554
554 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH
VOL. 259, JULY 26, 1996 529
Iglesia Ni Cristo vs. Court of Appeals
G.R. No. 119673. July 26, 1996.*
IGLESIA NI CRISTO (INC), petitioner, vs. THE HONORABLE
COURT OF APPEALS, BOARD OF REVIEW FOR MOVING
PICTURES AND TELEVISION and HONORABLE HENRIETTA
S. MENDEZ, respondents.
Constitutional Law; Freedom of Religion; P.D. 1986 gives the
Board the power to screen, review and examine all television
programs.—The law gives the Board the power to screen, review
and examine all “television programs. ” By the clear terms of the
law, the Board has the power to “approve, delete x x x and/or
prohibit the x x x exhibition and/or television broadcast of x x x
television programs x x x.” The law also directs the Board to apply
“contemporary Filipino cultural values as standard” to determine
those which are objectionable for being “immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or
crime.”
Same; Same; Freedom of religion is designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good.—We reject petitioner’s submission
which need not set us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been accorded a preferred
Page 175 of 267
status by the framers of our fundamental laws, past and present.
We have affirmed this preferred status well aware that it is
“designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good.” We have also
laboriously defined in our jurisprudence the intersecting umbras
and penumbras of the right to religious profession and worship.
Same; Same; The exercise of religious freedom can be
regulated by the State when it will bring about the clear and
present danger of some substantial evil which the State is duty
bound to prevent.—We
_______________
*
EN BANC.
530
5 SUPREME COURT REPORTS ANNOTATED
30
Iglesia Ni Cristo vs. Court of Appeals
thus reject petitioner’s postulate that its religious program
is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom
of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which
the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public
welfare.
Same; Same; Any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed
brows.—Deeply ensconced in our fundamental law is its hostility
against all prior restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows. It is the
burden of the respondent Board to overthrow this presumption. If it
fails to discharge this burden, its act of censorship will be struck
down. It failed in the case at bar.
Same; Same; Ruling of respondent court clearly suppresses
petitioner’s freedom of speech and interferes with its right to free
exercise of religion.—The evidence shows that the respondent
CONSTI 2 CASES Free Exercise of Religion
Board x-rated petitioners TV series for “attacking” other religions,
especially the Catholic church. An examination of the evidence,
especially Exhibits “A,” “A-1,” “B,” “C,” and “D” will show that the
so-called “attacks” are mere criticisms of some of the deeply held
dogmas and tenets of other religions. The videotapes were not
viewed by the respondent court as they were not presented as
evidence. Yet they were considered by the respondent court as
indecent, contrary to law and good customs, hence, can be
prohibited from public viewing under Section 3(c) of PD 1986. This
ruling clearly suppresses petitioner’s freedom of speech and
interferes with its right to free exercise of religion.
Same; Same; The ground “attack against another religion”
was merely added by the respondent Board in its Rules.—The
respondents cannot also rely on the ground “attacks against
another religion” in x-rating the religious program of petitioner.
Even a sideglance at Section 3 of PD No. 1986 will reveal that it is
not among the grounds to justify an order prohibiting the broadcast
of petitioner’s television program. The ground “attack against
another religion” was merely added by the respondent Board in its
Rules. This
531
VOL. 259, JULY 26, 1996 531
Iglesia Ni Cristo vs. Court of Appeals
rule is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and
spirit of the law they seek to enforce.
Same; Same; Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the
showing of a substantive and imminent evil which has taken the
life of a reality already on ground.—The records show that the
decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified
by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on
ground.
PADILLA, J., Concurring and Dissenting Opinion:
Page 176 of 267
 Constitutional Law; Freedom of Religion; There can be no prior
restraints on the exercise of free speech, expression or religion.—It
should by now be undisputably recognized and firmly rooted in this
country that there can be no prior restraints on the exercise of free
speech, expression or religion, unless such exercise poses a clear
and present danger of a substantive evil which the State has the
right and even the duty to prevent. The ban against such prior
restraints will result, as it has resulted in the past, in occasional
abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and
expression than to arm a governmental administrative agency with
the authority to censor speech and expression in accordance with
legislative standards which albeit apparently laudable in their
nature, can very well be bent or stretched by such agency to
convenient latitudes as to frustrate and eviscerate the precious
freedoms of speech and expression.
MELO, J., Concurring and Dissenting Opinion:
Constitutional Law; Freedom of Religion; Any prior restriction
upon a religious expression would be a restriction on the right of
religion.—The enjoyment of the freedom of religion is always
coupled with the freedom of expression. For the profession of faith
inevitably
532
5 SUPREME COURT REPORTS ANNOTATED
32
Iglesia Ni Cristo vs. Court of Appeals
carries with it, as a necessary appendage, the prerogative of
propagation. The constitutional guaranty of free exercise and
enjoyment of religious profession and worship thus denotes the
right to disseminate religious information (American Bible Society
vs. City of Manila, 101 Phil. 386 [1957]). Any prior restriction upon a
religious expression would be a restriction on the right of religion.
Same; Same; The State can exercise no power to restrict such
right until the exercise thereof traverses the point that will
endanger the order of civil society.—Freedom of religion and
expression is the rule and its restriction, the exception. Any prior
restriction on the exercise of the freedom to profess religious faith
and the propagation thereof will unduly diminish that religion’s
authority to spread what it believes to be the sacred truth. The
State can exercise no power to restrict such right until the exercise
CONSTI 2 CASES Free Exercise of Religion
thereof traverses the point that will endanger the order of civil
society.
KAPUNAN, J., Concurring and Dissenting Opinion:
Constitutional Law; Freedom of Religion; The freedom to
disseminate religious information is a right protected by the free
exercise clause of the Constitution.—The freedom to disseminate
religious information is a right protected by the free exercise clause
of the Constitution. It encompasses a wide range of ideas and takes
many forms. In the process of enlightening the adherents or
convincing non-believers of the truth of its beliefs, a religious sect
or denomination is allowed the free choice of utilizing various
media, including pulpit or podium, print, television film, and the
electronic mail.
MENDOZA, J., Separate Opinion:
Constitutional Law; Freedom of Religion; Fact that judicial
review of administrative action is available does not obviate the
constitutional objection to censorship.—Censorship may be allowed
only in a narrow class of cases involving pornography, excessive
violence, and danger to national security. Even in these cases, only
courts can prohibit the showing of a film or the broadcast of a
program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through
subsequent punishment. Considering the potentiality for harm
which motion pictures and TV programs may have especially on the
young, all materials may validly be required to be submitted for
review before they
533
VOL. 259, JULY 26, 1996 533
Iglesia Ni Cristo vs. Court of Appeals
may be shown or broadcast. However, the final determination
of the character of the materials cannot be left to an administrative
agency. That judicial review of administrative action is available
does not obviate the constitutional objection to censorship.
PANGANIBAN, J., Separate Concurring Opinion:
Constitutional Law; Freedom of Religion; The mere invocation
of religious freedom will not stalemate the State and ipso facto
Page 177 of 267
render it incompetent in preserving the rights of others and in
protecting the general welfare.—Religious freedom is absolute
when it is confined within the realm of thought to a private,
personal relationship between a man’s conscience and his God, but
it is subject to regulation when religious belief is transformed into
external acts that affect or afflict others. The mere invocation of
religious freedom will not stalemate the State and ipso factorender
it incompetent in preserving the rights of others and in protecting
the general welfare.
VITUG, J., Separate Opinion:
Constitutional Law; Freedom of Religion; The exercise of
religious belief is not without inherent and statutory limitations.—I
agree with those who support the view that religious freedom
occupies an exalted position in our hierarchy of rights and that the
freedom to disseminate religious information is a constitutionally-
sanctioned prerogative that allows any legitimate religious
denomination a free choice of media in the propagation of its credo.
Like any other right, however, the exercise of religious belief is not
without inherent and statutory limitations.
Same; Same; The Board is empowered to screen, review and
examine all television programs.—A reading of Section 3 of P.D.
1986 shows that the Board is empowered to “screen, review and
examine all x x x television programs” and to “approve or disprove,
delete objectionable portion from and/or prohibit the x x x
television broadcast of x x x television programs x x x which, in the
judgment of the BOARD (so) applying contemporary Filipino cultural
values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs x x x.” I believe that
the phrase “contrary to law” should be read together with other
existing laws such as, for instance, the provisions of the Revised
Penal Code, particularly Article 201, which prohibits the exhibition
of shows that “offend another
534
5 SUPREME COURT REPORTS ANNOTATED
34
Iglesia Ni Cristo vs. Court of Appeals
race or religion.” I see in this provision a good and sound
standard. Recent events indicate recurrent violent incidents
between and among communities with diverse religious beliefs and
CONSTI 2 CASES Free Exercise of Religion
dogma. The danger is past mere apprehension; it has become a
virtual reality and now prevalent in some parts of the world.
Same; Same; In order not to infringe constitutional principles,
any restriction by the Board must, of course, be for legitimate and
valid reasons.—In order not to infringe constitutional principles, any
restriction by the Board must, of course, be for legitimate and valid
reasons. I certainly do not think that prior censorship should
altogether be rejected just because sanctions can later be imposed.
Regulating the exercise of a right is not necessarily an anathema to
it; in fact, it can safeguard and secure that right.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Cuevas, De la Cuesta & De las Alas for petitioner.
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of
the respondent Court of Appeals affirming the action of the
respondent Board of Review for Moving Pictures and Television
which x-rated the TV Program “Ang Iglesia ni Cristo.”
Petitioner Iglesia ni Cristo, a duly organized religious
organization, has a television program entitled “Ang Iglesia ni
Cristo” aired on Channel 2 every Saturday and on Channel 13 every
Sunday. The program presents and propagates petitioner’s religious
beliefs, doctrines and practices oftentimes in comparative studies
with other religions.
Sometime in the months of September, October and November
1992, petitioner submitted to the respondent Board of Review for
Moving Pictures and Television the VTR tapes of its TV program
Series Nos. 115, 119, 121 and 128. The Board classified the series
as “X” or not for public viewing on the
535
VOL. 259, JULY 26, 1996 535
Iglesia Ni Cristo vs. Court of Appeals
ground that they “offend and constitute an attack against other
religions which is expressly prohibited by law.”
Petitioner pursued two (2) courses of action against the
respondent Board. On November 28, 1992, it appealed to the Office
of the President the classification of its TV Series No. 128. It
succeeded in its appeal for on December 18, 1992, the Office of the
Page 178 of 267
President reversed the decision of the respondent Board. Forthwith,
the Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the
respondent Board Civil Case No. Q-92-14280, with the RTC, NCR,
Quezon City.1 Petitioner alleged that the respondent Board acted
without jurisdiction or with grave abuse of discretion in requiring
petitioner to submit the VTR tapes of its TV program and in x-rating
them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In
their Answer, respondent Board invoked its power under PD No.
1986 in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner’s
prayer for a writ of preliminary injunction. The parties orally argued
and then marked their documentary evidence. Petitioner submitted
the following as its exhibits, viz.:
1. (1)Exhibit “A,” respondent Board’s Voting Slip for Television
showing its September 9, 1992 action on petitioner’s Series
No. 115 as follows:2
REMARKS:
There are some inconsistencies in the particular program as it is
very surprising for this program to show series of Catholic
ceremonies and also some religious sects and using it in their
discussion about the bible. There are remarks which are direct
criticism which affect other religions.
_______________
536
536 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
Need more opinions for this particular program. Please subject to
more opinions.
1. (2)Exhibit “A-1,” respondent Board’s Voting Slip for
Television showing its September 11, 1992 subsequent
action on petitioner’s Series No. 115 as follows:3
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
CONSTI 2 CASES Free Exercise of Religion
We suggest that the program should delve on explaining their
own faith and beliefs and avoid attacks on other faith.
1. (3)Exhibit “B,” respondent Board’s Voting Slip for Television
showing its October 9, 1992 action on petitioner’s Series
No. 119, as follows:4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and
says that our (Catholic) veneration of the Virgin Mary is not to be
condoned because nowhere it is found in the bible that we should
do so.
This is intolerance and robs off all sects of freedom of choice,
worship and decision.
1. (4)Exhibit “C,” respondent Board’s Voting Slip for Television
showing its October 20, 1992 action on petitioner’s Series
No. 121 as follows:5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the
attacks, they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion
that they are right and the rest are wrong, which they clearly
present in this episode.
1. (5)Exhibit “D,” respondent Board’s Voting Slip for Television
showing its November 20, 1992 action on petitioner’s
Series No. 128 as follows:6
_______________
537
VOL. 259, JULY 26, 1996 537
Iglesia Ni Cristo vs. Court of Appeals
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic
and Protestant’s beliefs.
We suggest a second review.
Page 179 of 267
 1. (6)Exhibits “E,” “E-1,” petitioner’s block time contract with
ABS-CBN Broadcasting Corporation dated September 1,
1992.7
2. (7)Exhibit “F,” petitioner’s Airtime Contract with Island
Broadcasting Corporation.8
3. (8)Exhibit “G,” letter dated December 18, 1992 of former
Ex-ecutive Secretary Edelmiro A. Amante, Sr., addressed to
Henrietta S. Mendez reversing the decision of the
respondent Board which x-rated the showing of petitioner’s
Series No. 129. The letter reads in part:
“x x x
The television episode in question is protected by the
constitutional guarantee of free speech and expression under
Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as
well as studied the passages found by MTRCB to be objectionable
and we find no indication that the episode poses any clear and
present danger sufficient to limit the said constitutional guarantee.”
1. (9)Exhibits “H,” “H-1,” letter dated November 26, 1992 of
Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos
appealing the action of the respondent Board x-rating
petitioner’s Series No. 128.
_______________
REMARKS:
An unbalanced interpretation of some parts of the bible
regarding Christmas. They (The Iglesia ni Kristo) tackle/discuss only
their own interpretations (and) while the sides of the Protestants
and the Catholics who they pick on in this episode are not heard of.
We feel that this topic of the Iglesia ni Kristo which is (?) of
attacking other religious beliefs does not merit public telecast.
(Original Records, p. 30).
538
538 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
On its part, respondent Board submitted the following exhibits, viz.:
CONSTI 2 CASES Free Exercise of Religion
1. (1)Exhibit “1,” Permit Certificate for Television Exhibition No.
15181 dated December 18, 1992 allowing the showing of
Series No. 128 under parental guidance.
2. (2)Exhibit “2,” which is Exhibit “G” of petitioner.
3. (3)Exhibit “3,” letter dated October 12, 1992 of Henrietta S.
Mendez, addressed to the Christian Era Broadcasting
Service which reads in part:
xxx
In the matter of your television show “Ang Iglesia ni Cristo”
Series No. 119, please be informed that the Board was constrained
to deny your show a permit to exhibit. The material involved
constitute an attack against another religion which is expressly
prohibited by law. Please be guided in the submission of future
shows.
After evaluating the evidence of the parties, the trial court issued a
writ of preliminary injunction on petitioner’s bond of P10,000.00.
The trial court set the pre-trial of the case and the parties
submitted their pre-trial briefs.9 The pre-trial briefs show that the
parties’ evidence is basically the evidence they submitted in the
hearing of the issue of preliminary injunction. The trial of the case
was set and reset several times as the parties tried to reach an
amicable accord. Their efforts failed and the records show that after
submission of memoranda, the trial court rendered a
Judgment,10 on December 15, 1993, the dispositive portion of which
reads:
“x x x
WHEREFORE, judgment is hereby rendered ordering respondent
Board of Review for Moving Pictures and Television (BRMPT) to
grant petitioner Iglesia ni Cristo the necessary permit for all the
series of ‘Ang Iglesia ni Cristo’ program.
_______________
539
VOL. 259, JULY 26, 1996 539
Iglesia Ni Cristo vs. Court of Appeals
Petitioner Iglesia ni Cristo, however, is directed to refrain from
offending and attacking other existing religions in showing ‘Ang
Iglesia ni Cristo’ program.
SO ORDERED.”
Page 180 of 267
Petitioner moved for reconsideration 11 praying: (a) for the deletion
of the second paragraph of the dispositive portion of the Decision,
and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The
respondent Board opposed the motion.12 On March 7, 1993, the trial
court granted petitioner’s Motion for Reconsideration. It ordered: 13
“x x x
WHEREFORE, the Motion for Reconsideration is granted. The
second portion of the Court’s Order dated December 15, 1993,
directing petitioner to refrain from offending and attacking other
existing religions in showing ‘Ang Iglesia ni Cristo’ program is
hereby deleted and set aside. Respondents are further prohibited
from requiring petitioner Iglesia ni Cristo to submit for review VTR
tapes of its religious program ‘Ang Iglesia ni Cristo.’ ”
Respondent Board appealed to the Court of Appeals after its motion
for reconsideration was denied.14
On March 5, 1995, the respondent Court of Appeals 15 reversed
the trial court. It ruled that: (1) the respondent board has
jurisdiction and power to review the TV program “Ang Iglesia ni
Cristo,” and (2) the respondent Board did not act with grave abuse
of discretion when it denied permit for the exhibition on TV of the
three series of “Ang Iglesia ni Cristo” on the ground that the
materials constitute an attack against
_______________
11
Original Records, pp. 223-230.
12
Original Records, pp. 233-242.
13
Original Records, pp. 245-250.
14
Original Records, pp. 379-381.
15
Tenth Division with Associate Justice Antonio P. Solano
(ponente), Associate Justice Alfredo Benipayo (chairman) and
Associate Justice Ricardo Galvez (member).
540
540 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
another religion. It also found the series “indecent, contrary to law
and contrary to good customs.”
In this petition for review on certiorari under Rule 45, petitioner
raises the following issues:
I
CONSTI 2 CASES Free Exercise of Religion
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS
EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS
FREEDOM, THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS SUBJECT TO
THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE
THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO
CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT THE ‘ANG IGLESIA NI CRISTO,’ A PURELY
RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW AND
GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioner’s TV program
“Ang Iglesia ni Cristo,” and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the
airing of petitioner’s religious program, series Nos. 115, 119 and
121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good
customs.
541
VOL. 259, JULY 26, 1996 541
Iglesia Ni Cristo vs. Court of Appeals
The first issue can be resolved by examining the powers of the
Board under PD No. 1986. Its section 3 pertinently provides:
“Sec. 3. Powers and Functions.—The BOARD shall have the
following functions, powers and duties:
xxx xxx xxx
Page 181 of 267
1. b)To screen, review and examine all motion pictures as
herein defined, television programs, including publicity
materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for
theatrical or non-theatrical distribution for television
broadcast or for general viewing, imported or produced in
the Philippines and in the latter case, whether they be for
local viewing or for export.
2. c)To approve, delete objectionable portion from
and/or prohibit the importation, exportation, production,
copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television
programs and publicity materials, subject of the preceding
paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the
Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
1. i)Those which tend to incite subversion, insurrection,
rebellion or sedition against the State, or otherwise
threaten the economic and/or political stability of the
State;
2. ii)Those which tend to undermine the faith and confidence
of the people, their government and/or duly constituted
authorities;
3. iii)Those which glorify criminals or condone crimes;
4. iv)Those which serve no other purpose but to satisfy the
market for violence or pornography;
5. v)Those which tend to abet the traffic in and use of
prohibited drugs;
6. vi)Those which are libelous or defamatory to the good name
and reputation of any person, whether living or dead;
CONSTI 2 CASES Free Exercise of Religion
7. vii)Those which may constitute contempt of court or of any
quasi-judicial tribunal, or pertain to matters which are sub-
judice in nature (emphasis ours).
542
542 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
The law gives the Board the power to screen, review and
examine all “television programs.” By the clear terms of the law,
the Board has the power to “approve, delete x x x and/or prohibit
the x x x exhibition and/or television broadcast of x x x television
programs x x x.” The law also directs the Board to apply
“contemporary Filipino cultural values as standard” to determine
those which are objectionable for being “immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or
crime.”
Petitioner contends that the term “television program” should
not include religious programs like its program “Ang Iglesia ni
Cristo.” A contrary interpretation, it is urged, will contravene
Section 5, Article III of the Constitution which guarantees that “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.”
We reject petitioner’s submission which need not set us adrift in
a constitutional voyage towards an uncharted sea. Freedom of
religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this
preferred status well aware that it is “designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good.” 16 We have also laboriously defined in
our jurisprudence the intersecting umbras and penumbras of the
right to religious profession and worship. To quote the summation
of Mr. Justice Isagani A. Cruz, our well-known constitutionalist: 17
_______________
Page 182 of 267
 16
Victoriano v. Elizalde Rope Workers’ Union, L-25246,
September 12, 1974 per Mr. Justice Calixto Zaldivar.
17
Cruz, Constitutional Law, 1991 ed., pp. 176-178.
543
VOL. 259, JULY 26, 1996 543
Iglesia Ni Cristo vs. Court of Appeals
Religious Profession and Worship
The right to religious profession and worship has a two-fold
aspect, viz., freedom to believe and freedom to act on one’s beliefs.
The first is absolute as long as the belief is confined within the
realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.
1. (1)Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about
life and death; worship any god he chooses, or none at all; embrace
or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the
immortality of his soul—in fact, cherish any religious conviction as
he and he alone sees fit. However absurd his beliefs may be to
others, even if they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. ‘Men may believe what they
cannot prove.’ Every one has a right to his beliefs and he may not
be called to account because he cannot prove what he believes.
1. (2)Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or
omissions that affect the public, his freedom to do so becomes
subject to the authority of the State. As great as this liberty may
be, religious freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the
rights of others. It is error to think that the mere invocation of
religious freedom will stalemate the State and render it impotent in
protecting the general welfare. The inherent police power can be
exercised to prevent religious practices inimical to society. And this
is true even if such practices are pursued out of sincere religious
CONSTI 2 CASES Free Exercise of Religion
conviction and not merely for the purpose of evading the
reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: ‘The constitutional provision
on religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
544
544 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
Accordingly, while one has full freedom to believe in Satan, he may
not offer the object of his piety a human sacrifice, as this would be
murder. Those who literally interpret the Biblical command to “go
forth and multiply” are nevertheless not allowed to contract plural
marriages in violation of the laws against bigamy. A person cannot
refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God
alone. An atheist cannot express his disbelief in acts of derision
that wound the feelings of the faithful. The police power can be
validly asserted against the Indian practice of the suttee, born of
deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.
We thus reject petitioner’s postulate that its religious program
is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom
of internal belief. Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which
the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public
welfare. A laissez faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels the Court against
its blind adoption as religion is and continues to be a volatile area
of concern in our country today. Across the sea and in our shore,
the bloodiest and bitterest wars fought by men were caused by
irreconcilable religious differences. Our country is still not safe from
the recurrence of this stultifying strife considering our warring
religious beliefs and the fanaticism with which some of us cling and
claw to these beliefs. Even now, we have yet to settle the near
century old strife in Mindanao, the roots of which have been
nourished by the mistrust and misunderstanding between our
Page 183 of 267
Christian and Muslim brothers and sisters. The bewildering rise of
weird religious cults espousing violence as an article of faith also
proves the wisdom of our rule rejecting a strict let alone policy on
the exercise of religion. For sure, we shall continue to subject any
act pinching the space for the free exercise of religion to a
545
VOL. 259, JULY 26, 1996 545
Iglesia Ni Cristo vs. Court of Appeals
heightened scrutiny but we shall not leave its rational exercise to
the irrationality of man. For when religion divides and its exercise
destroys, the State should not stand still.
It is also petitioner’s submission that the respondent appellate
court gravely erred when it affirmed the ruling of the respondent
Board x-rating its TV Program Series Nos. 115, 119, 121 and 128.
The records show that the respondent Board disallowed the
program series for “attacking” other religions. Thus, Exhibits “A,”
“A-1,” (respondent Board’s Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for “x x x criticizing different
religions, based on their own interpretation of the Bible.” They
suggested that the program should only explain petitioner’s “x x x
own faith and beliefs and avoid attacks on other faiths.” Exhibit “B”
shows that Series No. 119 was x-rated because “the Iglesia ni
Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned
because nowhere it is found in the bible that we should do so. This
is intolerance x x x.” Exhibit “C” shows that Series No. 121 was x-
rated “x x x for reasons of the attacks, they do on, specifically, the
Catholic Religion. x x x (T)hey can not tell, dictate any other religion
that they are right and the rest are wrong x x x” Exhibit “D” also
shows that Series No. 128 was not favorably recommended
because it “x x x outrages Catholic and Protestant’s beliefs.” On
second review, it was x-rated because of its “unbalanced
interpretations of some parts of the bible.” 18 In sum, the respondent
Board x-rated petitioner’s TV program Series Nos. 115, 119, 121
and 128 because of petitioner’s controversial biblical
interpretations and its “attacks” against contrary religious beliefs.
The respondent appellate court agreed and even held that the said
“attacks” are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility
against all prior restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by the
CONSTI 2 CASES Free Exercise of Religion
_______________
18
Original Records, p. 30.
546
546 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
presumption of invalidity and should be greeted with furrowed
brows.19 It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of censorship
will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated
petitioners TV series for “attacking” other religions, especially the
Catholic church. An examination of the evidence, especially
Exhibits “A,” “A-1,” “B,” “C,” and “D” will show that the so-called
“attacks” are mere criticisms of some of the deeply held dogmas
and tenets of other religions. The videotapes were not viewed by
the respondent court as they were not presented as evidence. Yet
they were considered by the respondent court as indecent, contrary
to law and good customs, hence, can be prohibited from public
viewing under Section 3(c) of PD 1986. This ruling clearly
suppresses petitioner’s freedom of speech and interferes with its
right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell
v. Connecticut,20 viz.:
xxx
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields, the tenets of one man may seem
the rankest error to his neighbor. To persuade others to his own
point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are
prominent in church or state or even to false statements. But the
people of this nation have ordained in the light of history that
inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of democracy.
______________________________
19
Near v. Minnesota, 283 US 697 (1931); Bantam Books, Inc. v.
Sullivan, 372 US 58 (1963); New York Times v. United States, 403
US 713 (1971).
20
310 US 296.
Page 184 of 267
 547
VOL. 259, JULY 26, 1996 547
Iglesia Ni Cristo vs. Court of Appeals
The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such
criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious
dogmas and beliefs are often at war and to preserve peace among
their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet
of options. Neutrality alone is its fixed and immovable stance. In
fine, respondent board cannot squelch the speech of petitioner
Iglesia ni Cristo simply because it attacks other religions, even if
said religion happens to be the most numerous church in our
country. In a State where there ought to be no difference between
the appearance and the reality of freedom of religion, the remedy
against bad theology is better theology. The bedrock of freedom of
religion is freedom of thought and it is best served by encouraging
the marketplace of dueling ideas. When the luxury of time permits,
the marketplace of ideas demands that speech should be met by
more speech for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground “attacks
against another religion” in x-rating the religious program of
petitioner. Even a sideglance at Section 3 of PD No. 1986 will reveal
that it is not among the grounds to justify an order prohibiting the
broadcast of petitioner’s television program. The ground “attack
against another religion” was merely added by the respondent
Board in its Rules.21 This rule
_______________
21
Sec. 4. Governing Standard.—a) the Board shall judge the
motion pictures and television programs and publicity materials
submitted to it for review, using as standard contemporary Filipino
cultural values, to abate what are legally objectionable for being
immoral, indecent, contrary to law, and good customs x x x such as
but not limited:
xxx xxx xxx
548
CONSTI 2 CASES Free Exercise of Religion
548 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and
spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize “attack
against any religion” as a ground allegedly “x x x because Section
3(c) of PD No. 1986 prohibits the showing of motion pictures,
television programs and publicity materials which are contrary to
law and Article 201 (2) (b) (3) of the Revised Penal Code punishes
anyone who exhibits “shows which offend any race or religion.” We
respectfully disagree for it is plain that the word “attack” is not
synonymous with the word “offend.” Moreover, Article 201 (2) (b)
(3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It
cannot be utilized to justify prior censorship of speech. It must be
emphasized that E.O. 876, the law prior to PD 1986, included
“attack against any religion” as a ground for censorship. The
ground was not, however, carried over by PD 1986. Its deletion is a
decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view. Thus, in an Opinion
dated November 28, 1985 then Minister of Justice, now President of
the Senate, Neptali Gonzales explained:
“x x x
“However, the question whether the BRMPT (now MTRCB) may
preview and censor the subject television program of INC should be
viewed in the light of the provision of Section 3, paragraph (c) of PD
1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: ‘immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines
or its people or with dangerous tendency to encourage, the
commission of violence, or of a wrong’ as determined by the Board,
‘applying contemporary Filipino cultural values as standard.’ As
stated, the intention of the Board to subject the INC’s television
program to ‘previewing and censorship is prompted by the fact that
its religious program’ makes mention of beliefs and practices of
_______________
Page 185 of 267
 vii. Those which clearly constitute an attack against any race,
creed, or religion as distinguished from individual members
thereof.”
549
VOL. 259, JULY 26, 1996 549
Iglesia Ni Cristo vs. Court of Appeals
other religion.’ On the face of the law itself, there can conceivably
be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be
within the contemplation of the standards of censorship set by
law.” (Emphasis supplied)
Fourth. In x-rating the TV program of the petitioner,
the respondents failed to apply the clear and present danger
rule. In American Bible Society v. City of Manila,22 this Court held:
“The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can be
justified like other restraints on freedom of expression on the
ground that there is a clear and present danger of any substantive
evil which the State has the right to prevent.” In Victoriano vs.
Elizalde Rope Workers Union,23 we further ruled that “x x x it is only
where it is unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the
smallest extent necessary to avoid the danger.”
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video
tapes constitute impermissible attacks against another religion.
There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality
already on ground.
It is suggested that we re-examine the application of clear and
present danger rule to the case at bar. In the United States, it is
true that the clear and present danger test has
_______________
22
101 Phil. 386.
CONSTI 2 CASES Free Exercise of Religion
23
59 SCRA 54, 58.
550
550 SUPREME COURT REPORTS ANNOTATED
Iglesia Ni Cristo vs. Court of Appeals
undergone permutations. It was Mr. Justice Holmes who formulated
the test in Schenck v. US,24 as follows: “x x x the question in every
case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right
to prevent.” Admittedly, the test was originally designed to
determine the latitude which should be given to speech that
espouses antigovernment action. Bannered by Justices Holmes and
Brandeis, the test attained its full flowering in the decade of the
forties, when its umbrella was used to protect speech other than
subversive speech.25 Thus, for instance, the test was applied to
annul a total ban on labor picketing. 26 The use of the test took a
downswing in the 1950’s when the US Supreme Court
decided Dennis v. United Statesinvolving communist
conspiracy.27 In Dennis, the components of the test were altered as
the High Court adopted Judge Learned Hand’s formulation that “x x
x in each case [courts] must ask whether the gravity of the ‘evil,’
discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger.” The imminence
requirement of the test was thus diminished and to that extent, the
protection of the rule was weakened. In 1969, however, the
strength of the test was reinstated in Brandenburg v. Ohio,28when
the High Court restored in the test the imminence requirement, and
even added an intent requirement which according to a noted
commentator ensured that only speech directed at inciting
lawlessness
_______________
24
249 US 47, 63 Led 470 (1919).
25
Bridges v. California, 314 US 252, 262 where J. Black observed
that the test “has afforded a practical guidance in a variety of
cases in which the scope of constitutional protections of freedom of
expression was an issue.”
26
Thornhill v. Alabama, 310 US 88 (1940).
27
341 US 494 (1951).
28
Id., at p. 510.
551
Page 186 of 267
 VOL. 259, JULY 26, 1996 551
Iglesia Ni Cristo vs. Court of Appeals
could be punished.29 Presently in the United States, the clear and
present danger test is not applied to protect low value
speeches such as obscene speech, commercial speech and
defamation. Be that as it may, 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. 30 Hence, even
following the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and
present danger test to the case at bar because the issue involves
the content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the
evil apprehended cannot be established. The contention overlooks
the fact that the case at bar involves videotapes that are pre-
taped and hence, their speech content is known and not an X
quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the
substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that “x x x the
determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the
boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administra-
_______________
29
Gunther, Learned Hand and the Origins of Modern First
Amendment Doctrine, Some Fragments of History, 27 Stan L. Rev.
719 (1975).
30
Hentoff, Speech, Harm and Self Government: Understanding
the Ambit of the Clear and Present Danger Test, 91 Col. Law Rev.
No. 6, p. 1453 (1991).
552
552 SUPREME COURT REPORTS ANNOTATED
CONSTI 2 CASES Free Exercise of Religion
Iglesia Ni Cristo vs. Court of Appeals
tive body such as a Board of Censors.” He submits that a “system
of prior restraint may only be validly administered by judges and
not left to administrative agencies.” The same submission is made
by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another
American rule in our jurisdiction. Its seedbed was laid down by Mr.
Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day.31 By 1965, the US Supreme Court
in Freedman v. Maryland32 was ready to hold that “the teaching of
cases is that, because only a judicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination
suffices to impose a valid final restraint.”33
While the thesis has a lot to commend itself, we are not ready to
hold that it is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our
courts.As far back as 1921, we upheld this set-up in Sotto vs.
Ruiz,34 viz.:
“The use of the mails by private persons is in the nature of a
privilege which can be regulated in order to avoid its abuse.
Persons possess no absolute right to put into the mail anything
they please, regardless of its character.
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power, is
extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of
the law, since whether an article is or is not libelous, is
fundamentally a le-
_______________
31
370 US 478 (1962).
32
380 US 51 (1965).
33
Id. at p. 58.
34
41 Phil. 468 (1921) per Justice Malcolm.
553
Page 187 of 267
 VOL. 259, JULY 26, 1996 553
Iglesia Ni Cristo vs. Court of Appeals
gal question. In order for there to be due process of law, the action
of the Director of Posts must be subject to revision by the courts in
case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727; Public Clearing House vs.
Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916],
23-Fed., 773)
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous
character rests with the Director of Posts and involves the exercise
of his judgment and discretion.Every intendment of the laws is in
favor of the correctness of his action. The rule is (and we go only to
those cases coming from the United States Supreme Court and
pertaining to the United States Postmaster-General), that the courts
will not interfere with the decision of the Director of Posts unless
clearly of opinion that it was wrong. (Bates & Guilid Co. vs.
Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S.,
63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David
vs. Brown [1900], 103 Fed., 909, announcing a somewhat different
doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the
proposition whether or not courts alone are competent to decide
whether speech is constitutionally protected. 35 The issue involves
highly arguable policy considerations and can be better addressed
by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of
Appeals dated March 24, 1995 is affirmed insofar as it sustained
the jurisdiction of the respondent MTRCB to review petitioner’s TV
program entitled “Ang Iglesia ni Cristo,” and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-
rating petitioner’s TV Program Series Nos. 115, 119, and 121. No
costs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Francisco and Torres, Jr.,
JJ., concur.
_______________
35
See Hunter, Toward a Better Understanding of the Prior
Restraint Doctrine, A Reply to Prof. Mayton, 67 Cornell L. Rev. 283
CONSTI 2 CASES Free Exercise of Religion
(1982) for the view that courts are no better than administrative
agencies in protecting First Amendment rights.
554
5 SUPREME COURT REPORTS ANNOTATED
54
Iglesia Ni Cristo vs. Court of Appeals
Narvasa (C.J.), In the result.
Padilla, J., See separate concurring and dissenting opinion.
Bellosillo, J., On leave.
Melo, J., Please see separate opinion.
Vitug, J., Please see separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see separate opinion.
Hermosisima, Jr., J., I join the concurring and dissenting
opinion of Justice Kapunan.
Panganiban, J., Please see separate (concurring) opinion.
Judgment sustaining jurisdiction of MTRCB over petitioner’s TV
program affirmed while reversed and set aside as to the x-rating of
said program.
Note.—Even the exercise of religion may be regulated at some
slight inconvenience in order that the State may protect its citizens
from injury. (Centeno vs. Villalon-Pornillos, 236 SCRA 197 [1994])
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.
Actions; Judgments; Law of the Case; The issues which have
already been ruled upon prior to the remand of a case 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.—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 APPLICA-
Page 188 of 267
_______________
*
EN BANC.
2 prohibits government from inhibiting religious belief with rewards
2 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
BLE 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. 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.
Same; Same; Same; Due Process; Since neither the
complainant, respondent nor the government has filed a motion for
reconsideration assailing the ruling in this case, 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, and insofar as it would overturn the
parties’ right to rely upon the Court’s interpretation which has long
attained finality, it also runs counter to substantive due process.—
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.
Constitutional Law; Freedom of Religion; Free Exercise Clause
and Establishment Clause; Words and Phrases; 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.—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
CONSTI 2 CASES Free Exercise of Religion
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
for religious
3
VOL. 492, JUNE 22, 2006 3
Estrada vs. Escritor
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.
Same; Same; Strains of U.S. Jurisprudence on the Religion
Clauses; U.S. history has produced two identifiably different, even
opposing, strains of jurisprudence on the religion clauses—the 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, and, the second standard, the benevolent neutrality or
accommodation.—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. 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.
Same; Same; Same; Strict Separation; Words and Phrases; 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.—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
Page 189 of 267
the state adjust its secular programs to alleviate burdens the
programs placed on believers. 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.
4 enacted that vision into law by guaranteeing the free exercise of
4 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
Same; Same; Same; Same; Unlike the strict separationists, the
strict neutrality view, which is a tamer version of the strict
separationist 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.”—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, 330 U.S. 1 (1946), 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.” 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.
Same; Same; Same; Same; 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.—The problem with the
strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de factovoiding of religious
expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v.
Schempp, 374 U.S. 203 (1963), 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
CONSTI 2 CASES Free Exercise of Religion
Constitution. 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
religion but not, say, of philosophy or science. The strict neutrality
approach all but erases this distinction. Thus it is
5
VOL. 492, JUNE 22, 2006 5
Estrada vs. Escritor
not surprising that the [U.S.] Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious
classifications.
Same; Same; Same; Benevolent Neutrality or Accommodation;
Words and Phrases; The theory of benevolent neutrality or
accommodation is premised on a different view of the “wall of
separation,” in that, 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.—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. 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.
Page 190 of 267
 Same; Same; Same; Same; 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; 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.—But the more difficult religion cases
involve legislative acts which have a
6 therefore, the U.S. Court’s interpretation of the same. Unlike in the
6 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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 regulationindividuals 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.” 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. 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. 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.
Same; Same; 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
CONSTI 2 CASES Free Exercise of Religion
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.—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
U.S. where legislative exemptions of religion had to be upheld by
the U.S. Supreme Court as constituting
7
VOL. 492, JUNE 22, 2006 7
Estrada vs. Escritor
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, salary of religious officers in
government institutions, and optional religious instruction. Our own
preamble also invokes the aid of a divine being. 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.
Same; Same; Benevolent Neutrality-Accommodation
Standard; It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution—our
own Constitutions have made significant changes to accommodate
and exempt religion.—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. 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
Page 191 of 267
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.
Same; Same; Same; The Constitution itself mandates the
Court to make exemptions as in Ebralinag v. Division
Superintendent of Schools, 219 SCRA 256 (1993), and the
American Bible Society v. City of Manila, 101 Phil. 386 (1957), in
cases involving criminal laws of general application.—Two things
must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommo-
8 interpretation indubitably show that benevolent neutrality is the
8 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
dation 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.
Same; Same; Same; Freedom of Speech; 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.—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
CONSTI 2 CASES Free Exercise of Religion
law in question is a general criminal law. 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.
Same; Same; Same; 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; 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—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 for this precisely is the protection afforded by the
religion clauses of the Constitution; Our constitutional history and
launching pad from which the Court
9
VOL. 492, JUNE 22, 2006 9
Estrada vs. Escritor
should take off in interpreting religion clause cases.—We must
emphasize that the adoption of the benevolent neutrality-
accommodation approachdoes 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. As stated in the
Decision: x x x 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
Page 192 of 267
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.
Same; Same; Same; A look at the evidence that the Office of
the Solicitor General (OSG) has presented fails to demonstrate “the
gravest abuses, endangering paramount interests” which could
limit or override respondent Escritor’s fundamental right to
religious freedom, and 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.—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. Thus, having previously
established the preliminary condi-
10
1 SUPREME COURT REPORTS ANNOTATED
0
Estrada vs. Escritor
tions 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.
Same; Same; Same; 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,
CONSTI 2 CASES Free Exercise of Religion
endangering paramount interests can limit the fundamental right
to religious freedom; 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.—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
11
VOL. 492, JUNE 22, 2006 11
Estrada vs. Escritor
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. This, the
Solicitor General failed to do.
Same; Same; Same; 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
Page 193 of 267
prohibition is essential to fulfill any compelling interest, if it does
not, in fact, attempt to enforce that prohibition.—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.
Same; Same; Same; Bill of Rights; 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
12
1 SUPREME COURT REPORTS ANNOTATED
2
Estrada vs. Escritor
mobocracy in a democracy (the majority or a coalition of
minorities).—The government’s conduct may appear innocent and
nondis-criminatory 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
CONSTI 2 CASES Free Exercise of Religion
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).
Same; Same; The records are bereft of even a feeble attempt
to procure any evidence to show that the means the state adopted
in pursuing this compelling interest is the least restrictive to
respondent Escritor’s religious freedom—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.—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. 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
13
VOL. 492, JUNE 22, 2006 13
Estrada vs. Escritor
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.
Page 194 of 267
YNARES-SANTIAGO, J., Dissenting:
Freedom of Religion; Public Officers; Civil Service; Disgraceful
and Immoral Conduct; The degree of morality required of every
employee or official in the public service has been consistently
high, and the rules are particularly strict when the respondent is a
Judge or a court employee.—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. 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. 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.
Same; Same; Same; Same; Those who choose to tolerate the
situation where a man and a woman separated from their
legitimate spouses and decide to live together in an “ideal” and yet
unlawful union state—or more specifically, those who argue that
respondent Escritor’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.—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 applica-
14
1 SUPREME COURT REPORTS ANNOTATED
4
Estrada vs. Escritor
ble 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
CONSTI 2 CASES Free Exercise of Religion
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.
Same; Same; Same; Same; The issue in this case is legal and
not philosophical—is respondent Escritor guilty of “disgraceful and
immoral” conduct in the context of the Civil Service Law?—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. Abandonment by the legal husband without
justification does not exculpate the offender; it merely mitigates
the penalty.
Same; Same; Same; Same; 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.—Our
existing rule is that an act so corrupt or false as to constitute a
criminal act is “grossly immoral.” It is not merely “immoral.”
Respondent now
15
VOL. 492, JUNE 22, 2006 15
Estrada vs. Escritor
Page 195 of 267
 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.
Same; Same; Same; Same; Times are changing—illicit sex is
now looked upon more kindly but we should not completely
disregard or overlook a relationship of adultery or concubinage
involving a court employee and not order it to be terminated.—
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.
Same; Same; Same; Same; 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.—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,
16
CONSTI 2 CASES Free Exercise of Religion
1 SUPREME COURT REPORTS ANNOTATED
6
Estrada vs. Escritor
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.
Same; Same; Same; Same; 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.—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 Code and the Revised Penal Code,
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.
Page 196 of 267
 Same; Same; Same; Same; Marriages; Husband and Wife; The
strengthening of marriage ties and the concomitant hostility to
adul-
17
VOL. 492, JUNE 22, 2006 17
Estrada vs. Escritor
terous or illicit marital relations is a primary governmental
concern.—The argument that a marital relationship is the concern
of religious authorities and not the State has no basis. In Reynolds
v. United States, 98 U.S. 145 (1878), 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. 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.
Same; Same; Same; Same; 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.—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. 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.
Same; Same; Same; Same; 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
CONSTI 2 CASES Free Exercise of Religion
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 exacting
standards of ethics and morality imposed upon court judges and
court employees are required to
18
1 SUPREME COURT REPORTS ANNOTATED
8
Estrada vs. Escritor
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. 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.
CARPIO, J., Dissenting Opinion:
Freedom of Religion; Free Exercise Clause; Compelling State
Interest Test; The compelling state interest test espoused in
Sherbet v. Verner, 374 U.S. 398 (1963), has been abandoned more
than 15 years ago by the U.S. Supreme Court in the Employment
Division v. Smith, 485 U.S. 660 (1985) and 494 U.S. 872 (1990).—
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. Smith 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.
Page 197 of 267
 Same; Same; 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 that the 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.—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
19
VOL. 492, JUNE 22, 2006 19
Estrada vs. Escritor
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 x Thus, from the 1879 case of Reynolds v. U.S.,
98 U.S. 145 (1878), 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.
Same; Same; Theories on the Religion Clause; 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.—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.
Same; Same; Same; Strict Separation or “No Aid”
Theory; Words and Phrases; 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.—The strict separation or “no aid” theory holds
CONSTI 2 CASES Free Exercise of Religion
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. This theory found its first expression in the case
of Everson v. Board of Education, 330 U.S. 1 (1946), 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.
Same; Same; Same; Governmental Neutrality Theory; Words
and Phrases; Under the governmental neutrality theory, the estab-
20
2 SUPREME COURT REPORTS ANNOTATED
0
Estrada vs. Escritor
lishment clause requires government to be neutral on religious
matters.—Under the governmental neutrality theory, the
establishment clause requires government to be neutral on
religious matters. This theory was articulated by Mr. Justice Clark in
the case of Abington School District v. Schempp, 374 U.S. 203
(1963), 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. This test as stated by
Mr. Justice Clark embodies a theory of strict neutrality—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. (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.”
Same; Same; Same; Accommodation Theory; Words and
Phrases; The accommodation theory provides that any limitation
Page 198 of 267
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.—
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. The accommodation
theory found its first expression in Zorach v. Clauson, 343 U.S. 306
(1951). 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.
21
VOL. 492, JUNE 22, 2006 21
Estrada vs. Escritor
Same; Same; Same; Same; 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 while
permissive accommodation refers to exercises of political
discretion that benefit religion, and that the Constitution neither
requires nor forbids.—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,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. 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, for example, by
CONSTI 2 CASES Free Exercise of Religion
making an exception to proscriptive drug laws for sacramental
peyote use.
Same; Same; Same; Same; 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.”—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.” 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 Establish-
22
2 SUPREME COURT REPORTS ANNOTATED
2
Estrada vs. Escritor
ment Clause. What the Smith cases espouse, therefore, is not
really the strict neutrality approach, but more of permissive
accommodation.
Same; Same; Public Officers; Civil Service; Courts; Court
Personnel; 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.—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.” While arguably not constituting “disgraceful and immoral
conduct,” Escritor’s cohabitation with Quilapio is a patent violation
of our penal law on concubinage that vitiates “the integrity of court
Page 199 of 267
personnel and the court itself.” 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.
Same; Same; Marriages; Husband and Wife; Equally
compelling is the State’s interest in the preservation of marriage
and the family as basic social institutions, which is ultimately the
public policy underlying Articles 334 and 349 of the Revised Penal
Code.—Equally compelling is the State’s interest in the preservation
of marriage and the family as basic social institutions, 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 interested and in the protection of which the
State has the strongest interest. In Domingo v. Court of Appeals,
226 SCRA 572 (1993), the Court stressed that: Marriage, a
sacrosanct institution, declared by the Constitution as an
“inviolable social
23
VOL. 492, JUNE 22, 2006 23
Estrada vs. Escritor
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.”
Same; Same; Same; 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.—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.” This is another
problem that arises in free exercise exemption analysis—the
CONSTI 2 CASES Free Exercise of Religion
benevolent neutrality approach fails to take into account the role
that equality plays in free exercise theory. While the text of the Free
Exercise Clause is consistent with protecting religion from
discrimination, it does not compel discrimination in favor of religion.
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.”
Same; Same; Same; Slipper Slope Adjudication; 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.—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
24
2 SUPREME COURT REPORTS ANNOTATED
4
Estrada vs. Escritor
secured church annulment of their marriage even without a
final annulment from a civil court. The majority pushes their opinion
on a slippery slope.
Same; Same; Same; 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.—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
Page 200 of 267
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.
Same; Same; Same; There is even no claim here that
concubinage is central to the religious belief of the Jehovah’s
Witnesses, or even apart of the religious belief of the Jehovah’s
Witnesses.—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.
Same; Same; 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—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.—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.
Hence, while there are times when government
25
VOL. 492, JUNE 22, 2006 25
Estrada vs. Escritor
must adapt to, or acquiesce to meet the needs of religious
exercise, there are also times when the exercises a religion wishes
to pursue must be adapted or even prohibited in order to meet the
needs of public policy. 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.” 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., 98 U.S. 145 (1878), “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
CONSTI 2 CASES Free Exercise of Religion
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.
ADMINISTRATIVE MATTER in the Supreme Court. Disgraceful and
Immoral Conduct.
The facts are stated in the resolution of the Court.
Antonio Manzano for complainant.
Teodorico M. Diesmos for Soledad Escritor.
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
26
26 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
Page 201 of 267
VI, Sec. 46(b)(5) of the Revised Administrative Code. 3 Respondent I, Soledad S. Escritor, do hereby declare that I have accepted
Escritor testified that when she entered the judiciary in 1999, she Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
was already a widow, her husband 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.
1
Estrada v. Escritor, 455 Phil. 411; 408 SCRA 1 (2003). I recognize this relationship as a binding tie before ‘Jehovah’
2
Id., at p. 444; p. 50. Incidentally, Escritor moved for the God and before all persons to be held to and honored in full accord
inhibition of Judge Caoibes from hearing her case to avoid suspicion with the principles of God’s Word. I will continue to seek the means
and bias as she previously filed an administrative case against him. to obtain legal recognition of this relationship by the civil
Escritor’s motion was denied. authorities and if at any future time a change in circumstances
3
Id. The Code provides: make this possible, I promise to legalize this union.
Sec. 46. Discipline: General Provisions.— Signed this 28th day of July 1991.
1. (a)No officer or employee in the Civil Service shall be Parenthetically, Escritor’s partner, Quilapio, executed a similar
suspended or dismissed except for cause as provided by pledge on the same day. Both pledges were executed in Atimonan,
law and after due process. Quezon and signed by three witnesses. At the time Escritor
2. (b)The following shall be grounds for disciplinary action: executed her pledge, her husband was still alive but living with
another woman. Quilapio was likewise married at that time, but had
xxxxxxxxx been separated in fact from his wife. Id., at p. 446; p. 52.
(5) Disgraceful and immoral conduct; x x x. 28
27 28 SUPREME COURT REPORTS ANNOTATED
VOL. 492, JUNE 22, 2006 27 Estrada vs. Escritor
Estrada vs. Escritor For Jehovah’s Witnesses, the Declaration allows members of the
having died in 1998.4 She admitted that she started living with congregation who have been abandoned by their spouses to enter
Luciano Quilapio, Jr. without the benefit of marriage more than into marital relations. The Declaration thus makes the resulting
twenty years ago when her husband was still alive but living with union moral and binding within the congregation all over the world
another woman. She also admitted that she and Quilapio have a except in countries where divorce is allowed. As laid out by the
son.5But as a member of the religious sect known as the Jehovah’s tenets of their faith, the Jehovah’s congregation requires that at the
Witnesses and the Watch Tower and Bible Tract Society, respondent time the declarations are executed, the couple cannot secure the
asserted that their conjugal arrangement is in conformity with their civil authorities’ approval of the marital relationship because of
religious beliefs and has the approval of her congregation. 6 In fact, legal impediments. Only couples who have been baptized and in
after ten years of living together, she executed on July 28, 1991, a good standing may execute the Declaration, which requires the
“Declaration of Pledging Faithfulness.”7 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.8Escritor and Quilapio’s declarations were executed in the
4
Id., at p. 445; p. 51. usual and approved form prescribed by the Jehovah’s
5
Id., at pp. 445, 447; p. 51. Witnesses,9 approved by elders of the congregation where the
6
Id., at pp. 445, 453, and 457; pp. 51, 56-57, 59. declarations were executed,10and recorded in the Watch Tower
7
Id., at pp. 445-456; pp. 51-52. The Declaration provides: Central Office.11
Moreover, the Jehovah’s congregation believes that once all
DECLARATION OF PLEDGING FAITHFULNESS legal impediments for the couple are lifted, the validity of the

CONSTI 2 CASES Free Exercise of Religion Page 202 of 267

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
_______________
8
Id., at pp. 447-448, 452-453; pp. 53-54, 55. 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 p. 449; p. 55.
10
Id., at p. 452; p. 58.
11
Id., at p. 449; p. 55.
12
See Id., at pp. 447-452; pp. 53-58.
29
VOL. 492, JUNE 22, 2006 29
Estrada vs. Escritor
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,
CONSTI 2 CASES Free Exercise of Religion
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
_______________
13
Id., at pp. 445, 453, and 457; pp. 51, 53, 58.
14
Id., at p. 596; p. 141.
30
30 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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:
1. (a)examine the sincerity and centrality of respondent’s
claimed religious belief and practice;
2. (b)present evidence on the state’s “compelling interest” to
override respondent’s religious belief and practice; and
3. (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
Page 203 of 267
evidence adduced by the State proves its more compelling interest.
This issue involves a pure question of fact.
_______________
15
Id., at pp. 599-600; p. 191.
16
Agustin v. Court of Appeals, G.R. No. 107846, April 18,
1997, 271 SCRA 457; Gokongwei v. Securities and Exchange
Commission, 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. Court of
Appeals, 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.
31
VOL. 492, JUNE 22, 2006 31
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
from primitive times, when it started out as the state itself, when
the
_______________
17
See discussion under Estrada v. Escritor, 455 Phil. 411, 458-
468; 408 SCRA 1, 63-73 (2003).
32
32 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
_______________
18
During 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 pp.
458-459; p. 64.
19
This was the time of theocracy, during the rise of the Hebrew
state and the Mosaic religion. See Id., at pp. 459-461; p. 65.
Page 204 of 267
 20
Following the rise of Saul, and the pre-Christian Rome which
engaged in emperor-worship. See Id., at pp. 461-462; p. 65.
21
Id., at pp. 462-463; p. 66.
22
Id., at p. 468; pp. 72-73.
33
VOL. 492, JUNE 22, 2006 33
Estrada vs. Escritor
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
_______________
23
Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 565 (4th ed. 1997).
24
Id.
25
See Estrada v. Escritor, 455 Phil. 411, 479-480; 408 SCRA 1,
83 (2003).
26
Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 575 (4th ed. 1997).
34
CONSTI 2 CASES Free Exercise of Religion
34 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
_______________
27
Estrada v. Escritor, 455 Phil. 411, 480; 408 SCRA 1, 83
(2003), citing BETH, L., AMERICAN THEORY OF CHURCH AND
STATE 71 (1958).
35
VOL. 492, JUNE 22, 2006 35
Estrada vs. Escritor
Page 205 of 267
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
_______________
28
See Id., at pp. 487, 512-516; pp. 89, 114-118.
29
Id., at pp. 515; p. 115, 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 Making1276 (2nd ed.
1980).
30
Id., at p. 515; p. 115, 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:
36
36 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
CONSTI 2 CASES Free Exercise of Religion
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 [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 pp. 513-514; p. 113.
32
Id., at p. 514; pp. 113-114, 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 p. 515; p. 115, citing Weber, P., Neutrality and First
Amendment Interpretation in EQUAL SEPARATION 3 (1990).
37
Page 206 of 267
 VOL. 492, JUNE 22, 2006 37
Estrada vs. Escritor
The tamer version of the strict separationist view, the strict
neutrality or separationist view, (or, the governmental
neutralitytheory) 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
_______________
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 p. 18.
35
Everson v. Board of Education, 330 U.S. 1, 18 (1947).
36
See Estrada v. Escritor, 455 Phil. 411, 516; 408 SCRA 1, 115
(2003), citingTHE 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
CONSTI 2 CASES Free Exercise of Religion
incidentally burdens religious exercise, the First Amendment has
not been offended.
38
38 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
_______________
37
374 U.S. 203 (1963).
38
Estrada v. Escritor, 455 Phil. 411, 517; 408 SCRA 1, 116
(2003), citingBUZZARD, L., ERICSSON, S., THE BATTLE FOR
RELIGIOUS LIBERTY 60 (1980).
39
Id., at pp. 517-518; pp. 116-117, citing Kelley, D. Strict
Neutrality and the Free Exercise of Religion in WEBER, P., EQUAL
SEPARATION 1189 (1990).
Page 207 of 267
 40
Id., at p. 518; p. 117, citing 75. Monsma, S. The Neutrality
Principle and a Pluralist Concept of Accommodation, in WEBER,
P., EQUAL SEPARATION 74-75 (1990).
39
VOL. 492, JUNE 22, 2006 39
Estrada vs. Escritor
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 Amend-
_______________
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.
CONSTI 2 CASES Free Exercise of Religion
See discussion of the birth of the theory in Estrada v.
Escritor, 455 Phil. 411, 518-519; 408 SCRA 1, 117-118 (2003).
42
343 U.S. 306 (1951).
40
40 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
ment. 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.”
xxxxxxxxx
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
_______________
43
Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
Page 208 of 267
 41
VOL. 492, JUNE 22, 2006 41
Estrada vs. Escritor
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
Sab-bath 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;48or 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.
_______________
44
Estrada v. Escritor, 455 Phil. 411, 521-522; 408 SCRA 1, 120
(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).
42
42 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
CONSTI 2 CASES Free Exercise of Religion
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 accommodation 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
_______________
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; 408 SCRA 1, 121 (2003).
52
Estrada v. Escritor, 455 Phil. 411, 482; 408 SCRA 1, 85
(2003), citing Carter, S., The Resurrection of Religious Freedom,
107 HARVARD LAW REVIEW 118, 1280129 (1993).
43
VOL. 492, JUNE 22, 2006 43
Estrada vs. Escritor
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
Page 209 of 267
(2) Free Exercise Jurisprudence: Sherbert, Yoder because any incidental burden on the free exercise of
appellant’s religion may be justified by a “compelling state
and Smith
interest in the regulation of a subject within the State’s
The pinnacle of free exercise protection and the theory of
constitutional power to regulate. . .”57 (emphasis supplied)
accommodation in the U.S. blossomed in the case of Sherbert v.
The Court stressed that in the area of religious liberty, it is
Verner,55 which ruled that state regulation that indirectly restrains
basic that it is not sufficient to merely show a rational
or punishes religious belief or conduct must be subjected to strict
relationship of the substantial infringement to the religious
scrutiny under the Free Exercise Clause. 56 According to Sherbert,
right and a colorable state interest. “(I)n this highly sensitive
when a law of general application infringes religious exercise, albeit
constitutional area, ‘[o]nly the gravest abuses, endangering
incidentally, the state interest sought to be promoted must be so
paramount interests, give occasion for permissible limitation.’
paramount and compelling as to override the free exercise claim.
”58 The Court found that there was no such compelling state
Otherwise, the Court itself will carve out the exemption.
interest to override Sherbert’s religious liberty. It added that even if
In this case, Sherbert, a Seventh Day Adventist, claimed
the state could show that Sherbert’s exemption would pose serious
unemployment compensation under the law as her employment
detrimental effects to the unemployment compensation fund and
was terminated for refusal to work on Saturdays on religious
scheduling of work, it was incumbent upon the state to show
grounds. Her claim was denied. She sought recourse in the
that no alternative means of regulations would address such
Supreme Court. In laying down the standard for determining
detrimental effects without infringing religious liberty. The state,
whether the denial of benefits could withstand constitutional
however, did not discharge this burden. The Court thus carved out
scrutiny, the Court ruled, viz.:
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
53 Sherbert’s benefits would force her to choose between receiving
Id., at p. 482; p. 85, citing Sullivan, K., Religion and Liberal
benefits and following her religion. This choice placed “the same
Democracy, 59 THE UNIVERSITY OF CHICAGO LAW REVIEW 195,
kind of burden upon the free exercise of religion as would a fine
214-215 (1992).
54 imposed against (her) for her Sat-
Id.
55
374 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. 57
Sherbert v. Verner, 374 U.S. 398, 403 (1963).
Smith, 80 CHI.-KENT L. REV. 1287, 1302 (2005). 58
56 Id., at p. 406.
Carmella, Angela C., State Constitutional Protection of
45
Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993
B.Y.U.L.REV. 275, 277 (1993). VOL. 492, JUNE 22, 2006 45
44 Estrada vs. Escritor
44 SUPREME COURT REPORTS ANNOTATED urday worship.” This germinal case of Sherbert firmly established
Estrada vs. Escritor the exemption doctrine,59 viz.:
It is certain that not every conscience can be accommodated by all
“Plainly enough, appellee’s conscientious objection to Saturday
the laws of the land; but when general laws conflict with
work constitutes no conduct prompted by religious principles of a
scruples of conscience, exemptions ought to be granted
kind within the reach of state legislation. If, therefore, the decision
unless some “compelling state interest” intervenes.
of the South Carolina Supreme Court is to withstand appellant’s
Thus, Sherbert and subsequent cases held that when government
constitutional challenge, it must be either because her
action burdens, even inadvertently, a sincerely held religious belief
disqualification as a beneficiary represents no infringement
or practice, the state must justify the burden by demonstrating that
by the State of her constitutional right of free exercise, or

CONSTI 2 CASES Free Exercise of Religion Page 210 of 267

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
_______________
59
Estrada v. Escritor, 455 Phil. 411, 495; 408 SCRA 1, 98
(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).
46
46 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
62
Id., at pp. 214-215, 219-220.
47
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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
Page 211 of 267
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
_______________
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).
48
48 SUPREME COURT REPORTS ANNOTATED
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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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
65
Id., at pp. 30-32.
66
Id.
49
VOL. 492, JUNE 22, 2006 49
Estrada vs. Escritor
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,69drastically 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
Page 212 of 267
 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
_______________
50 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
_______________
51
VOL. 492, JUNE 22, 2006 51
Estrada vs. Escritor
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 protec-
_______________
52
52 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
tion 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
Page 213 of 267
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
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VOL. 492, JUNE 22, 2006 53
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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
_______________
54
54 SUPREME COURT REPORTS ANNOTATED
CONSTI 2 CASES Free Exercise of Religion
Estrada vs. Escritor
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
_______________
55
VOL. 492, JUNE 22, 2006 55
Estrada vs. Escritor
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.
Page 214 of 267
 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
_______________
56
56 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
57
VOL. 492, JUNE 22, 2006 57
Estrada vs. Escritor
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.101So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993.102The 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. Vernerand Wisconsin v. Yoder, and to
guarantee its application in all cases where free exercise of religion
Page 215 of 267
is substantially burdened; and to provide a claim of defense to a
person whose religious exercise is substantially burdened by
_______________
58 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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.”
_______________
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Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
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
accommodationapproach. 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 con-
_______________
108
See Noonan, John T., Jr. & Gaffney, Edward McGlynn,
Jr., Religious Freedom: History, Cases, and Other Materials on the
Interaction of Religion and Government531 (2001).
60
60 SUPREME COURT REPORTS ANNOTATED
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formity 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
Page 216 of 267
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
_______________
(2005).
111
Estrada v. Escritor, 455 Phil. 411, 526; 408 SCRA 1, 124
(2003).
61
VOL. 492, JUNE 22, 2006 61
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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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
112
Id., at p. 527; p. 125, citing Buzzard, L., Ericsson, S., The
Battle for Religious Liberty 61-62 (1980).
62
62 SUPREME COURT REPORTS ANNOTATED
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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.
Page 217 of 267
 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
_______________
63
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Estrada vs. Escritor
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
_______________
64
64 SUPREME COURT REPORTS ANNOTATED
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CONSTI 2 CASES Free Exercise of Religion
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
_______________
122
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 HARVARD LAW REVIEW 1410, 1416-1417
(1990).
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Estrada vs. Escritor
as constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own
Page 218 of 267
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.
_______________
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66 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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 x x x x 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,
CONSTI 2 CASES Free Exercise of Religion
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 separationistapproach, 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
_______________
128
Id., at pp. 564 and 575; pp. 158 and 169.
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VOL. 492, JUNE 22, 2006 67
Estrada vs. Escritor
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,
Page 219 of 267
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
_______________
129
Id., at pp. 563-564; pp. 157-159.
130
Id., at p. 574; p. 168. 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 p. 536; p. 133.
131
101 Phil. 386 (1957).
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68 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
132
G.R. No. 95770, March 1, 1993, 219 SCRA 256.
69
VOL. 492, JUNE 22, 2006 69
Estrada vs. Escritor
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 [1985]) 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 Car-
Page 220 of 267
_______________
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 pp. 270-271.
135
G.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.
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70 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
pio’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-
accommodationis 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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
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.
71
VOL. 492, JUNE 22, 2006 71
Estrada vs. Escritor
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
Page 221 of 267
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 neces-
72
72 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
sary. 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
CONSTI 2 CASES Free Exercise of Religion
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
_______________
137
Estrada v. Escritor, 455 Phil. 411, 576-578; 408 SCRA 1, 170-
171 (2003).
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VOL. 492, JUNE 22, 2006 73
Estrada vs. Escritor
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
Page 222 of 267
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 Smithdoctrine 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
74
74 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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 Ballardand Cantwell. The
sincerity of the claimant’s belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. x x x
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
CONSTI 2 CASES Free Exercise of Religion
exemption is given; it must precisely show how and to what
extent those objectives will be undermined if exemptions
are granted. x x x
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 x x x.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
_______________
138
Id., at pp. 529-531; pp. 126-128.
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VOL. 492, JUNE 22, 2006 75
Estrada vs. Escritor
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
Page 223 of 267
an invocation of the Free Exercise Clause alone, rather than a the Smithdoctrine that “the guaranty of religious liberty as
legislative exemption. embodied in the Free Exercise Clause does not require the grant of
Moreover, it should be noted that while there is no Philippine exemptions from generally applicable laws to individuals whose
case as yet wherein the Court granted an religious practice conflict with those laws,” his theory is infirmed by
accommodation/exemption to a religious act from the application of the showing that the benevolent neutrality approach which
general penal laws, permissive accommodation based on religious allows for both mandatory and permissive
freedom has been granted with respect to one of the crimes accommodations was unequivocally adopted by our framers in
penalized under the Revised Penal Code, that of bigamy. the Philippine Constitution, our legislature, and our jurisprudence.
In the U.S. case of Reynolds v. United States,139 the U.S. Court Parenthetically, it should be pointed out that a “permissive
expressly denied to Mormons an exemption from a general federal accommodation-only” stance is the antithesis to the notion
law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith.140 In contradistinction, _______________
Philippine law accommo-
tion, 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
139
98 U.S. 145 (1878). which democratic traditions depend. Thus, according to the U.S.
140
See KMIEC, DOUGLAS, W, & PRESSER, STEPHEN Court, this important societal interest prevails over the
B, INDIVIDUAL RIGHTS AND THE AMERICAN CONSTITUTION 105 countervailing religious practice of the Mormons.
(1998). In this case, the issue was whether a general federal law 141
A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.
criminalizing polygamy can be applied to a Mormon whose religion 77
included that practice. The U.S. Court, in affirming Reynold’s VOL. 492, JUNE 22, 2006 77
convic-
Estrada vs. Escritor
76
that religion clauses, like the other fundamental liberties found in
76 SUPREME COURT REPORTS ANNOTATED the Bill or Rights, is a preferred right and an independent source of
Estrada vs. Escritor right.
dates the same practice among Moslems, through a legislative act. What Mr. Justice Carpio is left with is the argument, based
For while the act of marrying more than one still constitutes bigamy on Smith, that the test in Sherbert is not applicable when the law in
under the Revised Penal Code, Article 180 of P.D. No. 1083, question is a generally applicable criminal law. Stated differently,
otherwise known as the Code of Muslim Personal Laws of the even if Mr. Justice Carpio conceded that there is no question that in
Philippines, provides that the penal laws relative to the crime of the Philippine context, accommodations are made, the question
bigamy “shall not apply to a person married . . . under Muslim law.” remains as to how far the exemptions will be made and who would
Thus, by legislative action, accommodation is granted of a Muslim make these exemptions.
practice which would otherwise violate a valid and general criminal On this point, two things must be clarified: first, in relation to
law. Mr. Justice Carpio recognized this accommodation when, in his criminal statutes, only the question of mandatory accommodation
dissent in our Decision dated August 4, 2003 and citing Sulu is uncertain, for Philippine law and jurisprudence have, in fact,
Islamic Association of Masjid Lambayong v. Malik,141 he stated that allowed legislative accommodation. Second, the power of the
a Muslim Judge “is not criminally liable for bigamy because Shari’a Courts to grant exemptions in general (i.e., finding that the Free
law allows a Muslim to have more than one wife.” Exercise Clause required the accommodation, or mandatory
From the foregoing, the weakness of Mr. Justice Carpio’s accommodations) has already been decided, not just once, but
“permissive-accommodation only” advocacy in this jurisdiction twice by the Court. Thus, the crux of the matter is whether this
becomes manifest. Having anchored his argument on

CONSTI 2 CASES Free Exercise of Religion Page 224 of 267

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
78
78 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
_______________
CONSTI 2 CASES Free Exercise of Religion
VOL. 492, JUNE 22, 2006 79
Estrada vs. Escritor
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.
_______________
143
See Pepper, Stephen, Conflicting Paradigms of Religious
Freedom: Liberty Versus Equality, 1993 B. Y. U. L. REV. 7, 12-13
(1993).
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80 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
Page 225 of 267
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:
“x x x 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
_______________
144
Estrada v. Escritor, 455 Phil. 411, 574-575; 408 SCRA 1, 167-
168 (2003).
81
VOL. 492, JUNE 22, 2006 81
Estrada vs. Escritor
large but for each of us” to the greatest extent possible
within flexible constitutional limits.”145
II. THE CURRENT PROCEEDINGS
CONSTI 2 CASES Free Exercise of Religion
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 testbased 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
_______________
82
82 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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.
Page 226 of 267
 The OSG merely offered the following as exhibits and their
purposes:
1. 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. 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 So-
83
VOL. 492, JUNE 22, 2006 83
Estrada vs. Escritor
licitor General, quoting the Constitution 148 and the Family
Code,149argues 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
CONSTI 2 CASES Free Exercise of Religion
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.
_______________
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 p. 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 pp. 21-22.
84
84 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
Page 227 of 267
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
85
VOL. 492, JUNE 22, 2006 85
Estrada vs. Escritor
those objectives will be undermined if exemptions are
granted.151This, 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
CONSTI 2 CASES Free Exercise of Religion
_______________
151
See Estrada v. Escritor, 455 Phil. 411, 529-531; 408 SCRA 1,
126-128 (2003).
152
OSG Memorandum-In-Intervention, Rollo, p. 23.
86
86 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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:
1. (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 Constitu-
_______________
87
VOL. 492, JUNE 22, 2006 87
Estrada vs. Escritor
1. tion, the distinction between public and secular morality
160
on the one hand, and religious morality, on the other,
should be kept in mind;161
2. (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
Page 228 of 267
 3. (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
_______________
Article 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Article 1306. The contracting parties may establish 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.:
All educational institutions shall include the study of the
Constitution as part of the curricula.
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; 408 SCRA 1, 179
(2003).
162
Id., at pp. 589-590; p. 182.
163
Id., at p. 591; p. 183.
88
88 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
1. (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
CONSTI 2 CASES Free Exercise of Religion
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
2. (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
_______________
164
Id., at p. 592; p. 184.
165
Id., at p. 593; pp. 184-185.
166
Id., at pp. 593-595; pp. 185-187.
167
Id., at pp. 594-595; p. 186.
168
Id., at pp. 595-596; p. 187.
89
VOL. 492, JUNE 22, 2006 89
Estrada vs. Escritor
Catholics who have secured church annulment of their marriage
even without a final annulment from a civil court. First, unlike
Page 229 of 267
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
_______________
90 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
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
CONSTI 2 CASES Free Exercise of Religion
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.171Thus, 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,”172the Solicitor General failed to appreciate
that benevolent neutralitycould 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
_______________
170
Id., at p. 51.
171
Estrada v. Escritor, 455 Phil. 411, 574; 408 SCRA 1, 167
(2003).
172
OSG Memorandum-In-Intervention, Rollo, p. 708.
173
See Estrada v. Escritor, 455 Phil. 411, 536-554; 408 SCRA
1 (2003).
91
VOL. 492, JUNE 22, 2006 91
Estrada vs. Escritor
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.
Page 230 of 267
 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.
Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona,
Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur.
Panganiban, (C.J.), I join J. Carpio’s Dissent.
_______________
174
Id., at pp. 529-531; pp. 128-129.
92
9 SUPREME COURT REPORTS ANNOTATED
2 seemingly benign will be tolerated.
Estrada vs. Escritor
Ynares-Santiago, J., See Dissenting Opinion.
Carpio, J., See Dissenting Opinion.
Carpio-Morales, J., I maintain my vote articulated in the
dissenting opinion of J. Carpio in the Aug. 4/03 decision. I thus
concur with his present dissent.
Callejo, J., I concur with the dissent made by Justice Carpio.
Velasco, Jr., J., No part due to prior action of OCA.
CONSTI 2 CASES Free Exercise of Religion
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST
REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No
unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how
This case defines the extent that our people may shape the
debates during elections. It is significant and of first impression. We
are asked to decide whether the Commission on Elections
(COMELEC) has the competence to limit expressions made by the
citizens — who are not candidates — during elections.
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February
22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
Page 231 of 267
 On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod.
Each tarpaulin was approximately six feet (6') by ten feet (10') in
size. They were posted on the front walls of the cathedral within
public view. The first tarpaulin contains the message "IBASURA RH
Law" referring to the Reproductive Health Law of 2012 or Republic
Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and
lists candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark. 5 The electoral
candidates were classified according to their vote on the adoption
of Republic Act No. 10354, otherwise known as the RH Law. 6Those
who voted for the passing of the law were classified by petitioners
as comprising "Team Patay," while those who voted against it form
"Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin
was neither sponsored nor paid for by any candidate. Petitioners
also conceded that the tarpaulin contains names ofcandidates for
the 2013 elections, but not of politicians who helped in the passage
of the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being
oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among
others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2) pending
this opinion and the availment of legal remedies, the tarpaulin be
allowed to remain.11

Trillanes, Antonio Escudero, Francis On February 27, 2013, COMELEC Law Department issued a
letter12 ordering the immediate removal of the tarpaulin; otherwise,
it will be constrained to file an election offense against petitioners.
Villar, Cynthia Hontiveros, Risa The letter of COMELEC Law Department was silenton the remedies
available to petitioners. The letter provides as follows:
Party List Buhay Legarda, Loren
Dear Bishop Navarra:

Party List Ang Pamilya Party List Gabriela It has reached this Office that our Election Officer for this City, Atty.
Mavil Majarucon, had already given you notice on February 22,
2013 as regards the election propaganda material posted on the
Party List Akbayan church vicinity promoting for or against the candidates and party-

CONSTI 2 CASES Free Exercise of Religion Page 232 of 267

list groups with the following names and messages, particularly
described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in
violation of Comelec Resolution No. 9615 promulgated on January
15, 2013 particularly on the size (even with the subsequent division
of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please
order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election
offense case against you.
We pray that the Catholic Church will be the first institution to help
the Commission on Elections inensuring the conduct of peaceful,
orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their
exercise of free speech, petitioners initiated this case through this
petition for certiorari and prohibition with application for
CONSTI 2 CASES Free Exercise of Religion
preliminary injunction and temporary restraining order. 14 They
question respondents’ notice dated February 22, 2013 and letter
issued on February 27, 2013. They pray that: (1) the petition be
given due course; (2) a temporary restraining order (TRO) and/or a
writ of preliminary injunction be issued restraining respondents
from further proceeding in enforcing their orders for the removal of
the Team Patay tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently
restraining respondents from enforcing them or any other similar
order.15
After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from enforcing
the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment 17 arguing that
(1) a petition for certiorari and prohibition under Rule 65 of the
Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin
is an election propaganda subject to regulation by COMELEC
pursuant to its mandate under Article IX-C, Section 4 of the
Constitution. Hence, respondents claim that the issuances ordering
its removal for being oversized are valid and constitutional. 18
During the hearing held on March 19, 2013, the parties were
directed to file their respective memoranda within 10 days or by
April 1, 2013, taking into consideration the intervening holidays. 19
The issues, which also served as guide for the oral arguments,
are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT
A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
Page 233 of 267
 A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED
ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE
ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL
CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A
FORM OF EXPRESSION, WHETHER THE COMELEC
POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE
REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
CONSTI 2 CASES Free Exercise of Religion
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that
the notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court. 21
Rule 64 is not the exclusive remedy for all acts of the COMELEC.
Rule 65 is applicable especially to raise objections relating to a
grave abuse of discretion resulting in the ouster of jurisdiction. 22 As
a special civil action, there must also be a showing that there be no
plain, speedy, and adequate remedy in the ordinary course of the
law.
Respondents contend that the assailed notice and letter are not
subject to review by this court, whose power to review is "limited
only to final decisions, rulings and orders of the COMELEC En Banc
rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and
letter are reviewable only by COMELEC itself pursuant to Article IX-
C, Section 2(3) of the Constitution 24 on COMELEC’s power to decide
all questions affecting elections.25 Respondents invoke the cases of
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions,
orders, rulings and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race
of Eastern Samar filed the election protest. 32 At issue was the
validity of the promulgation of a COMELEC Division resolution. 33 No
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motion for reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not have
jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution] 34 to
mean final orders, rulings and decisionsof the COMELEC rendered in
the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en
banc, not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations
omitted)
However, in the next case cited by respondents, Repol v. COMELEC,
this court provided exceptions to this general rule. Repolwas
another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court
because the COMELEC First Division issued a status quo ante order
against the Regional Trial Court executing its decision pending
appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review
interlocutory orders of a COMELEC Division. 38However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified
the exception:
This Court, however, has ruled in the past that this procedural
requirement [of filing a motion for reconsideration] may be glossed
over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when
the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of
COMELEC — in electoral contests — despite not being reviewed by
the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
CONSTI 2 CASES Free Exercise of Religion
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a
nullity; or
5) The need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the
status quo anteorder issued by the COMELEC Division was
unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of
Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the COMELEC
First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders should
be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN. 44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the
findings in an administrative case that he engaged in vote buying
in the 1995 elections.46No motion for reconsideration was filed
before the COMELEC En Banc. This court, however, took cognizance
of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election
protest case involving the mayoralty candidates of Taguig
City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition
for lack of form and substance.49 This court clarified the general
rule and refused to take cognizance of the review of the COMELEC
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order. While recognizing the exceptions in ABS-CBN, this court ruled
that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court from
taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing
candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for
public office. Their petition is filed to assert their fundamental right
to expression.
Furthermore, all these cases cited by respondents pertained to
COMELEC’s exercise of its adjudicatory or quasi-judicial power. This
case pertains to acts of COMELEC in the implementation of its
regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation:
the infringement on speech and the "chilling effect" caused by
respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the
notice51 dated February 22,2013 and letter52 dated February 27,
2013 ordering the removal of the tarpaulin.53 It is their position that
these infringe on their fundamental right to freedom of expression
and violate the principle of separation of church and state and,
thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined
from the allegations in the petition. Subject matter jurisdiction is
defined as the authority "to hear and determine cases of the
general class to which the proceedings in question belong and is
CONSTI 2 CASES Free Exercise of Religion
conferred by the sovereign authority which organizes the court and
defines its powers."55Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected
by the restrictions imposed by COMELEC. Political speech is
motivated by the desire to be heard and understood, to move
people to action. It is concerned with the sovereign right to change
the contours of power whether through the election of
representatives in a republican government or the revision of the
basic text of the Constitution. The zeal with which we protect this
kind of speech does not depend on our evaluation of the cogency of
the message. Neither do we assess whether we should protect
speech based on the motives of COMELEC. We evaluate restrictions
on freedom of expression from their effects. We protect both
speech and medium because the quality of this freedom in practice
will define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’
acts are capable of repetition. Under the conditions in which it was
issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their
voices heard on issues during the elections. Other citizens who wish
to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this court’s expanded exercise of certiorari
as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether ornot there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.56(Emphasis supplied)
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On the other hand, respondents relied on its constitutional mandate
to decide all questions affectingelections. Article IX-C, Section 2(3)
of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the
COMELEC, in its exercise of jurisdiction, gravely abused it. We are
confronted with the question as to whether the COMELEC had any
jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall
under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean
that COMELEC has the exclusive power to decide any and
allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this
court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article
VIII, Section 5(1) of the Constitution.This provision provides for this
court’s original jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the expanded jurisdiction
of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the constitutionality of
the notice and letter coming from COMELEC is within this court’s
power to review.
CONSTI 2 CASES Free Exercise of Religion
During elections, we have the power and the duty to correct any
grave abuse of discretion or any act tainted with unconstitutionality
on the part of any government branch or instrumentality. This
includes actions by the COMELEC. Furthermore, it is this court’s
constitutional mandate to protect the people against government’s
infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition before
this court.
Respondents contend that petitioners’ failure to file the proper suit
with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions
to the general rule on hierarchy of courts, none of these are
present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this
court’s discretionary power to take cognizance of a petition filed
directly to it if warranted by "compelling reasons, or [by] the nature
and importance of the issues raised. . . ."61 Petitioners submit that
there are "exceptional and compelling reasons to justify a direct
resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the
application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences. The strictness of the policy
is designed to shield the Court from having to deal with causes that
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are also well within the competence of the lower courts, and thus
leave time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when
serious and important reasons exist to justify an exception to the
policy.64
In Bañez, we also elaborated on the reasons why lower courts are
allowed to issue writs of certiorari, prohibition, and mandamus,
citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it
is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and
should not be burdened with the task of dealing with causes in the
first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore.
Hence, that jurisdiction should generally be exercised relative to
actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for
some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within
the competence of the Court of Appeals or a Regional Trial Court, it
is in either of these courts that the specific action for the writ’s
procurement must be presented. This is and should continue to be
the policy in this regard, a policy that courts and lawyers must
strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was
created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner.
Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent
to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring
the facts from the evidence as these are physically presented
CONSTI 2 CASES Free Exercise of Religion
before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the ‘actual case’ that
makes ripe a determination of the constitutionality of such action.
The consequences, of course, would be national in scope. There
are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be
appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court
that reviews the determination of facts and law made by the trial
courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the
Court of Appeals also has original jurisdiction over most special civil
actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there
are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new
ground or further reiterating — in the light of new circumstances or
in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition
of the actions of the Court of Appeals, this court promulgates these
doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the
Constitution and act in order to protect constitutional rights when
these become exigent should not be emasculated by the doctrine
in respect of the hierarchy of courts. That has never been the
purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad
rule.68 This court has "full discretionary power to take cognizance
and assume jurisdiction [over] special civil actions for
certiorari . . .filed directly with it for exceptionally compelling
reasons69 or if warranted by the nature of the issues clearly and
specifically raised in the petition."70 As correctly pointed out by
petitioners,71 we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine
issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the
Page 238 of 267
remedies of certiorari and prohibition toassail the constitutionality
of actions of both legislative and executive branches of the
government.72
In this case, the assailed issuances of respondents prejudice not
only petitioners’ right to freedom of expression in the present case,
but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote
an eminent political theorist:
[T]he theory of freedom of expression involves more than a
technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith
and a whole way of life. The theory grew out of an age that was
awakened and invigorated by the idea of new society in which
man's mind was free, his fate determined by his own powers of
reason, and his prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually robust
community. It contemplates a mode of life that, through
encouraging toleration, skepticism, reason and initiative, will allow
man to realize his full potentialities.It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant. 73
In a democracy, the citizen’s right tofreely participate in the
exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may
provide, as public participation in nation-building isa fundamental
principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this
court.
A second exception is when the issuesinvolved are of
transcendental importance.74 In these cases, the imminence and
clarity of the threat to fundamental constitutional rights outweigh
the necessity for prudence. The doctrine relating to constitutional
issues of transcendental importance prevents courts from the
paralysis of procedural niceties when clearly faced with the need
for substantial protection.
CONSTI 2 CASES Free Exercise of Religion
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of expression
which warrants invocation of relief from this court. The principles
laid down in this decision will likely influence the discourse of
freedom of speech in the future, especially in the context of
elections. The right to suffrage not only includes the right to vote
for one’s chosen candidate, but also the right to vocalize that
choice to the public in general, in the hope of influencing their
votes. It may be said that in an election year, the right to vote
necessarily includes the right to free speech and expression. The
protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this
court. In cases of first impression, no jurisprudence yet exists that
will guide the lower courts on this matter. In Government of the
United States v. Purganan,76 this court took cognizance of the case
as a matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important
issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of suffrage
includes the right of freedom of expression. This is a question which
this court has yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this
court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming
modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
Page 239 of 267
In this case, it is this court, with its constitutionally enshrined
judicial power, that can rule with finality on whether COMELEC
committed grave abuse of discretion or performed acts contrary to
the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored.
This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed
that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this
court.
Sixth, the filed petition reviews the act of a constitutional organ.
COMELEC is a constitutional body. In Albano v. Arranz, 80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every
province were [to] arrogate itself the power to disregard, suspend,
or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC
through pursuing remedies with the lower courts, any ruling on
their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court would be in
the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law that
could free them from the injurious effects of respondents’ acts in
violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this
basic right constitute an exceptionally compelling reason to justify
the direct resort to this court. The lack of other sufficient remedies
in the course of law alone is sufficient ground to allow direct resort
to this court.
Eighth, the petition includes questionsthat are "dictated by public
welfare and the advancement of public policy, or demanded by the
CONSTI 2 CASES Free Exercise of Religion
broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an
inappropriate remedy."82 In the past, questions similar to these
which this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens’ right to bear
arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import.
Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must
occur at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such, may be
resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the ambit of
this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal
access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4)
nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general
application, must yield to the specific demands of the Constitution.
The freedom of expression concededly holds, it is true, a vantage
point in hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to
me a genuine attempt on the part of Congress and the Commission
Page 240 of 267
on Elections to ensure that all candidates are given an equal
chance to media coverage and thereby be equally perceived as
giving real life to the candidates’ right of free expression rather
than being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional mandate, is not
for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is
not in point in this case.
The present petition does not involve a dispute between the rich
and poor, or the powerful and weak, on their equal opportunities for
media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are
non-candidates, to post the tarpaulin in their private property, asan
exercise of their right of free expression. Despite the invocation of
the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the
concept of what constitutes a political question:
What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been
specifically delegated to some other department or particular
officer of the government, withdiscretionary power to
act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on
what the text of the law should be. In political forums, particularly
the legislature, the creation of the textof the law is based on a
general discussion of factual circumstances, broadly construed in
order to allow for general application by the executive branch.
Thus, the creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on
existing facts established on a specific case-to-case basis, where
CONSTI 2 CASES Free Exercise of Religion
parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to
the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence
or modesty. There is no political question. It can be acted upon by
this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the
powers or competence of different agencies and departments of
the executive or those of the legislature. The political question
doctrine is used as a defense when the petition asks this court to
nullify certain acts that are exclusively within the domain of their
respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise of that
power was so capricious and arbitrary so as to amount to grave
abuse of discretion.
The concept of a political question, however, never precludes
judicial review when the act of a constitutional organ infringes upon
a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the
manner of regulation of the tarpaulin in question, it cannot do so by
abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question
doctrine:
When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not
Page 241 of 267
established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine
has undergone an evolution since the timethat it had been first
invoked in Marcos v. Manglapus. Increasingly, this court has taken
the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional
doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of
Article VI, Section 18 of the 1987 Constitution involving the removal
of petitioners from the Commission on Appointments. In times past,
this would have involved a quint essentially political question as it
related to the dominance of political parties in Congress. However,
in these cases, this court exercised its power of judicial review
noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by
which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora, 95 this court declared
again that the possible existence ofa political question did not bar
an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the
question of whether there was grave abuse of discretion in the
President’s use of his power to call out the armed forces to prevent
and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as
to whether a former President resigned was not a political question
even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in
such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates
a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.
CONSTI 2 CASES Free Exercise of Religion
This court’s understanding of the political question has not been
static or unbending. In Llamas v. Executive Secretary Oscar
Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which
the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial
review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute
interference with the functions of the President. 98
The concept of judicial power in relation to the concept of the
political question was discussed most extensively in Francisco v.
HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that
was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the duty of
the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." As well observed by
retired Justice Isagani Cruz, this expanded definition of judicial
power considerably constricted the scope of political question. He
opined that the language luminously suggests that this duty (and
power) is available even against the executive and legislative
departments including the President and the Congress, in the
exercise of their discretionary powers.100 (Emphasis in the original,
citations omitted)
Francisco also provides the cases which show the evolution of the
political question, as applied in the following cases:
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In Marcos v. Manglapus, this Court, speaking through Madame
Justice Irene Cortes, held: The present Constitution limits resort to
the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions,
would have normally left to the political departments to decide. x x
x
In Bengzon v. Senate Blue Ribbon Committee, through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, "(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to
this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases." (Emphasis
and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this
Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we were
to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question.x x x (Emphasis and italics
supplied.)
....
In our jurisdiction, the determination of whether an issue involves a
truly political and non-justiciable question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits.101 (Citations omitted)
CONSTI 2 CASES Free Exercise of Religion
As stated in Francisco, a political question will not be considered
justiciable if there are no constitutionally imposed limits on powers
or functions conferred upon political bodies. Hence, the existence
of constitutionally imposed limits justifies subjecting the official
actions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the
right to free speech. Any instance that this right may be abridged
demands judicial scrutiny. It does not fall squarely into any doubt
that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of
exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En
Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the
requirement in Rule 65 that "there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of
law."103 They add that the proper venue to assail the validity of the
assailed issuances was in the course of an administrative hearing
to be conducted by COMELEC.104 In the event that an election
offense is filed against petitioners for posting the tarpaulin, they
claim that petitioners should resort to the remedies prescribed in
Rule 34 of the COMELEC Rules of Procedure. 105
The argument on exhaustion of administrative remedies is not
proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication. Ripeness
is the "prerequisite that something had by then been accomplished
or performed by either branch [or in this case, organ of
government] before a court may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and
their medium, had understandable relevance especially during the
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elections. COMELEC’s letter threatening the filing of the election
offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the
violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional
order. In Chavez v. Gonzales,107 Justice Carpio in a separate opinion
emphasized: "[i]f everthere is a hierarchy of protected expressions,
political expression would occupy the highest rank, and among
different kinds of political expression, the subject of fair and honest
elections would be at the top."108 Sovereignty resides in the
people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in
order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative
remedies is applicable, the current controversy is within the
exceptions to the principle. In Chua v. Ang, 110 this court held:
On the other hand, prior exhaustion of administrative remedies
may be dispensed with and judicial action may be validly resorted
to immediately: (a) when there is a violation of due process; (b)
when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess
of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable
injury; (f) when the respondent is a department secretary whose
acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h) when it would
amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not
provide a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the
present case. First, petitioners allegethat the assailed issuances
CONSTI 2 CASES Free Exercise of Religion
violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question.
Second, the circumstances of the present case indicate the urgency
of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to
relax or suspend the rules or to except a case from their operation
when compelling reasons so warrant, or whenthe purpose of justice
requires it, [and when] [w]hat constitutes [as] good and sufficient
cause that will merit suspension of the rules is discretionary upon
the court".112Certainly, this case of first impression where COMELEC
has threatenedto prosecute private parties who seek to participate
in the elections by calling attention to issues they want debated by
the publicin the manner they feel would be effective is one of those
cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by
private citizens
Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution,
which provides:
Section 4. The Commission may,during the election period,
supervise or regulate the enjoyment or utilization of all franchises
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or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by
COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on
the day before and on plebiscite day.117 Sanidad argued that the
prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the
"evil sought to be prevented by this provision is the possibility that
a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising
their freedom of expression during plebiscite periods are neither
the franchise holders nor the candidates[,]"120 thus, their right to
expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither
franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) Based on the enumeration made on actsthat
CONSTI 2 CASES Free Exercise of Religion
may be penalized, it will be inferred that this provision only affects
candidates.
Petitioners assail the "Notice to Remove Campaign Materials"
issued by COMELEC. This was followed bythe assailed letter
regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list
groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign
materials only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may
authorize political parties and party-list groups to erect common
poster areas for their candidates in not more than ten (10) public
places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election
propaganda: Provided, That the size ofthe poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10)
public places, the size of which shall not exceed four (4) by six (6)
feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof,
and in public places or property which shall be allocated equitably
and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules
and regulations implementing the Fair Election Act, provides as
follows:
SECTION 17. Posting of Campaign Materials. - Parties and
candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places subject
to the requirements and/or limitations set forth in the next
following section; and
b. Private places provided it has the consent of the owner
thereof.
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The posting of campaign materials in public places outside of the
designated common poster areas and those enumerated under
Section 7 (g) of these Rules and the like is prohibited. Persons
posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the
candidates and parties caused the posting of campaign materials
outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the
Election Officer of the city or municipality where the unlawful
election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called
upon by the Election Officeror other officials of the COMELEC shall
apprehend the violators caught in the act, and file the appropriate
charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in
their issuances. The above provisions regulating the posting of
campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda"
also states that these are "allowed for all registered political
parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide
candidates seeking national and local elective positions subject to
the limitation on authorized expenses of candidates and political
parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the
election propaganda are released would ensure that these
candidates and political parties maintain within the authorized
expenses limitation.
The tarpaulin was not paid for byany candidate or political
party.125 There was no allegation that petitioners coordinated with
any of the persons named in the tarpaulin regarding its posting. On
the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law. Respondents also cite National Press
Club v. COMELEC126 in arguing that its regulatory power under the
CONSTI 2 CASES Free Exercise of Religion
Constitution, to some extent, set a limit on the right to free speech
during election period.127
National Press Club involved the prohibition on the sale and
donation of space and time for political advertisements, limiting
political advertisements to COMELEC-designated space and time.
This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the
prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily
infringes on the freedom of speech of the candidates. 128
This court upheld the constitutionality of the COMELEC prohibition
in National Press Club. However, this case does not apply as most
of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press
Club, Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not
infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press
Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a
commentary on the candidates for the 2013 national elections
because of the COMELEC notice and letter. It was not merelya
regulation on the campaigns of candidates vying for public office.
Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code, defines an"election campaign" as
follows:
....
(b) The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall
include:
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 (1) Forming organizations, associations, clubs, committees
or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a
candidate;
(2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose
of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to
a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan
election activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in
a forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only
to the candidates and political parties themselves. The focus of the
definition is that the act must be "designed to promote the election
or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public
concern, that is, a statement of either appreciation or criticism on
votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
CONSTI 2 CASES Free Exercise of Religion
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to freedom
of expression.
On the other hand, respondents contend that the tarpaulin is an
election propaganda subject to their regulation pursuant to their
mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized
are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section
4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances.132
No law. . .
While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy
Section 1119 of the Revised Ordinances of 1927 of Manila for the
public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of
streets and public places for purposes such as athletic games,
sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the
holding of petitioner’s public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to
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peaceful assembly and to petition for redress of grievances, albeit
not absolute,137 and the petition for mandamus to compel
respondent Mayor to issue the permit was granted. 138
In ABS-CBN v. COMELEC, what was assailed was not a law but
COMELEC En Banc Resolution No. 98-1419 where the COMELEC
resolved to approve the issuance of a restraining order to stop ABS-
CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of speech
should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against
a compelling state interest clearly allowed in the Constitution. The
test depends on the relevant theory of speech implicit in the kind of
society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech and
of the press provided in the US Constitution. The word "expression"
was added in the 1987 Constitution by Commissioner Brocka for
having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer.
On Section 9, page 2, line 29, it says: "No law shall be passed
abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if
not, add the words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it would
refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee
say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
CONSTI 2 CASES Free Exercise of Religion
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection?
(Silence) The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be
passed abridging the freedom of speech, expression or of the
press . . . ."141 Speech may be said to be inextricably linked to
freedom itself as "[t]he right to think is the beginning of freedom,
and speech must be protected from the government because
speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker, seeking to
signal others, uses conventional actions because he orshe
reasonably believes that such actions will be taken by the audience
in the manner intended; and (2) the audience so takes the
actions."144 "[I]n communicative action[,] the hearer may respond
to the claims by . . . either accepting the speech act’s claims or
opposing them with criticism or requests for justification." 145
Speech is not limited to vocal communication. "[C]onduct is treated
as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements
are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the
[right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct enacted,
and even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of
Cebu,148 students who were members of the religious sect
Jehovah’s Witnesses were to be expelled from school for refusing to
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salute the flag, sing the national anthem, and recite the patriotic
pledge.149 In his concurring opinion, Justice Cruz discussed how the
salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the
right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been
said that the Bill of Rights that guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the
liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its messageas clearly as
the written or spoken word. As a valid form of expression, it cannot
be compelled any more than it can be prohibited in the face of valid
religious objections like those raised in this petition. To impose it on
the petitioners is to deny them the right not to speak when their
religion bids them to be silent. This coercion of conscience has no
place in the free society.
The democratic system provides for the accommodation of diverse
ideas, including the unconventional and even the bizarre or
eccentric. The will of the majority prevails, but it cannot regiment
thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis
case. The conscientious objections of the petitioners, no less than
the impatience of those who disagree with them, are protected by
the Constitution. The State cannot make the individual speak when
the soul within rebels.151
Even before freedom "of expression" was included in Article III,
Section 4 of the present Constitution,this court has applied its
precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak, 152 petitioners
objected to the classification of the motion picture "Kapit sa
Patalim" as "For Adults Only." They contend that the classification
"is without legal and factual basis and is exercised as impermissible
restraint of artistic expression."153 This court recognized that
"[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic
impulse."154 It adds that "every writer,actor, or producer, no matter
what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what
CONSTI 2 CASES Free Exercise of Religion
constitutes obscenity appears to be unduly restrictive."156 However,
the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case is
in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin
allows larger fonts which make it easier to view its messages from
greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside moving
vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will
catch their attention and, thus, the greater the possibility that they
will understand its message.
Second, the size of the tarpaulin may underscore the importance of
the message to the reader. From an ordinary person’s perspective,
those who post their messages in larger fonts care more about their
message than those who carry their messages in smaller media.
The perceived importance given by the speakers, in this case
petitioners, to their cause is also part of the message. The
effectivity of communication sometimes relies on the emphasis put
by the speakers and onthe credibility of the speakers themselves.
Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they
make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces,
therefore, may translate to more opportunities to amplify, explain,
and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political
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candidates and an expression of support, larger spaces can allow
for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of
ideas, catalyze reactions to advocacies, and contribute more to a
more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance
and accountability in our government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms
of public discussion during elections are framed and kept hostage
by brief and catchy but meaningless sound bites extolling the
character of the candidate. Worse, elections sideline political
arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact
encourage it. Between the candidates and the electorate, the latter
have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints
and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and
place.158 They are fundamentally part of expression protected under
Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen
the need to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public
affairs, including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy"
submit that "substantial, open, [and] ethical dialogue isa critical,
and indeed defining, feature of a good polity." 159 This theory may be
considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will beaffected by the
decision."160 It anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the people.161 To
ensure order in running the state’s affairs, sovereign powers were
delegated and individuals would be elected or nominated in key
CONSTI 2 CASES Free Exercise of Religion
government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of the
people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be protected and
encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and
the maintenance of good government demand a full discussion of
public affairs."163 This court has, thus, adopted the principle that
"debate on public issues should be uninhibited, robust,and wide
open . . . [including even] unpleasantly sharp attacks on
government and public officials."164
Second, free speech should be encouraged under the concept of a
market place of ideas. This theory was articulated by Justice
Holmes in that "the ultimate good desired is better reached by
[the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is
the power of the thought to get itself accepted in the competition
of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to
"consider, test, and develop their own conclusions." 167 A free, open,
and dynamic market place of ideas is constantly shaping new ones.
This promotes both stability and change where recurring points
may crystallize and weak ones may develop. Of course, free speech
is more than the right to approve existing political beliefs and
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economic arrangements as it includes, "[t]o paraphrase Justice
Holmes, [the] freedom for the thought that we hate, no less than
for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs
people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the
free trade of ideas.
Third, free speech involves self-expression that enhances human
dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc, 171 this
court discussed as follows:
The rights of free expression, free assembly and petition, are not
only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well
as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well
as for the imposition of the lawful sanctions on erring public officers
and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important democratic role [in
providing] forums for the development of civil skills, for
deliberation, and for the formation of identity and community
spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals
and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a
potential source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and shared
values and ideals, to join together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to
"protect individuals and minorities against majoritarian abuses
perpetrated through [the] framework [of democratic
CONSTI 2 CASES Free Exercise of Religion
governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry
at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be
oppressed by "dominant factions of the electorate [that] capture
[the] government for their own selfish ends[.]"177 According to
Madison, "[i]t is of great importance in a republic not only to guard
the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part." 178 We
should strive to ensure that free speech is protected especially in
light of any potential oppression against those who find themselves
in the fringes on public issues.
Lastly, free speech must be protected under the safety valve
theory.179 This provides that "nonviolent manifestations of dissent
reduce the likelihood of violence[.]"180 "[A] dam about to burst . . .
resulting in the ‘banking up of a menacing flood of sullen anger
behind the walls of restriction’"181 has been used to describe the
effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a
need for peaceful methods in making passionate dissent. This
includes "free expression and political participation" 183 in that they
can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature
alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering
the possibility that repression of nonviolent dissent may spill over
to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high
degree of protection. Respondents argue that the tarpaulinis
election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who
voted for it.186 As such, it is subject to regulation by COMELEC under
its constitutional mandate.187 Election propaganda is defined under
Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION
1. Definitions . . .
....
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4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website, including,
but not limited to, social networks, blogging sites, and micro-
blogging sites, in return for consideration, or otherwise capable of
pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of
voting against the RH Law, and their criticism toward those who
voted in its favor.189It was "part of their advocacy campaign against
the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively
restrain[ed] and curtail[ed] [their] freedom of expression should be
declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as
"highly ranked in our scheme of constitutional values."193 These
rights enjoy precedence and primacy.194 In Philippine Blooming
Mills, this court discussed the preferred position occupied by
freedom of expression:
Property and property rights can belost thru prescription; but
human rights are imprescriptible. If human rights are extinguished
by the passage of time, then the Bill of Rights is a useless attempt
to limit the power of government and ceases to be an efficacious
shield against the tyranny of officials, of majorities, ofthe influential
and powerful, and of oligarchs - political, economic or otherwise.
CONSTI 2 CASES Free Exercise of Religion
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what
may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage." 196 A similar idea
appeared in our jurisprudence as early as 1969, which was Justice
Barredo’s concurring and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental
point others miss, that genuine democracy thrives only where the
power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines
is a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it
tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right of
the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of
public affairs by our officials must be allowed to suffer incessant
and unabating scrutiny, favorable or unfavorable, everyday and at
all times. Every holder of power in our government must be ready
to undergo exposure any moment of the day or night, from January
to December every year, as it is only in this way that he can
rightfully gain the confidence of the people. I have no patience for
those who would regard public dissection of the establishment as
an attribute to be indulged by the people only at certain periods of
time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can
only be properly enjoyed.It stands to reason therefore, that suffrage
itself would be next to useless if these liberties cannot be
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untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this
court discussed that some types of speech may be subject to
regulation:
Some types of speech may be subjected to some regulation by the
State under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may
vary from those of another, e.g., obscene speech. Distinctionshave
therefore been made in the treatment, analysis, and evaluation
ofthe permissible scope of restrictions on various categories of
speech. We have ruled, for example, that in our jurisdiction slander
or libel, lewd and obscene speech, as well as "fighting words" are
not entitled to constitutional protection and may be
penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political
speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more
than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political
speech. In Justice Brion’s dissenting opinion, he discussed that
"[t]he content of the tarpaulin, as well as the timing of its posting,
makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue,
by itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live election
one hence, Team Buhay and Team Patay and the plea to support
one and oppose the other."204
While the tarpaulin may influence the success or failure of the
named candidates and political parties, this does not necessarily
mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political
party, or party-list group.
CONSTI 2 CASES Free Exercise of Religion
The second paragraph of Section 1(4) of COMELEC Resolution No.
9615, or the rules and regulations implementing Republic Act No.
9006 as an aid to interpret the law insofar as the facts of this case
requires, states:
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website, including,
but not limited to, social networks, blogging sites, and micro-
blogging sites, in return for consideration, or otherwise capable of
pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are
not included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No.
9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office, and shall
include any of the following:
....
Personal opinions, views, and preferences for candidates, contained
in blogs shall not be considered acts of election campaigning or
partisan politicalactivity unless expressed by government officials
Page 253 of 267
in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the Civil
Service.
In any event, this case does not refer to speech in cyberspace, and
its effects and parameters should be deemed narrowly tailored only
in relation to the facts and issues in this case. It also appears that
such wording in COMELEC Resolution No. 9615 does not similarly
appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political
speech.
As early as 1918, in United States v. Bustos,205 this court recognized
the need for full discussion of public affairs. We acknowledged that
free speech includes the right to criticize the conduct of public
men:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses
of official dom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. 206
Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism, save
for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his or
her government, provided it is "specific and therefore constructive,
reasoned or tempered, and not a contemptuous condemnation of
the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of
the Election Law provision "penaliz[ing] the anonymous criticism of
a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being
penalized.212 The ponente adds that he would "dislike very muchto
CONSTI 2 CASES Free Exercise of Religion
see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value
may lie in the fact that there may be something worth hearing from
the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every society’s goal for
development. It puts forward matters that may be changed for the
better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts
that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act
No. 6646, which prohibits mass media from selling print space and
air time for campaign except to the COMELEC, to be a democracy-
enhancing measure.216This court mentioned how "discussion of
public issues and debate on the qualifications of candidates in an
election are essential to the proper functioning of the government
established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest
public purposes in the context of elections when the free exercise
thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every
advocate’s right to make known what the people need to
know,219 while the meaningful exercise of one’s right of suffrage
includes the right of every voter to know what they need to know in
order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance
of debate on public issues, and the freedom of expression
especially in relation to information that ensures the meaningful
exercise of the right of suffrage:
We have adopted the principle that debate on public issues should
be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the
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generating of interest essential if our elections will truly be free,
clean and honest.
We have also ruled that the preferred freedom of expression calls
all the more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful the
equally vital right of suffrage.221(Emphasis supplied, citations
omitted)
Speech with political consequences isat the core of the freedom of
expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god
of rights to which all other rights and even government protection
of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even
some forms of protected speech are still subjectto some
restrictions. The degree of restriction may depend on whether the
regulation is content-based or content-neutral. 223 Content-based
regulations can either be based on the viewpoint of the speaker or
the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a
content-neutral regulation. The order was made simply because
petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224
On the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political speech and
not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction sought to
be applied . . . is a mere time, place, and manner regulation, it’s
still unconstitutional for lack of a clear and reasonable nexus with a
constitutionally sanctioned objective."226
CONSTI 2 CASES Free Exercise of Religion
The regulation may reasonably be considered as either content-
neutral or content-based.227 Regardless, the disposition of this case
will be the same. Generally, compared with other forms of speech,
the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of
expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize
speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to
raise public issues that should be tackled by the candidates as
what has happened in this case. COMELEC’s discretion to limit
speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The
content of the tarpaulin is not easily divorced from the size of its
medium.
Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as
measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of
invalidity and is measured against the clear and present danger
rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of
imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of
overcoming the presumed unconstitutionality." 231
Page 255 of 267
Even with the clear and present danger test, respondents failed to
justify the regulation. There is no compelling and substantial state
interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no
reason for the state to minimize the right of non-candidate
petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based
on the subject matter of the utterance or speech."232 In contrast,
content-neutral regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints
starting with the 1948 case of Primicias v. Fugoso. 234The ordinance
in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession
ormeeting, but not the power to refuse the issuance of a permit for
such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so
regulated that it shall not beinjurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National
Traffic Commission resolution that prohibited the passing of animal-
drawn vehicles along certain roads at specific hours. 238 This court
similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon
and avoid obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more
or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of
excitement. . . ."241 It is with this backdrop that the state is justified
in imposing restrictions on incidental matters as time, place, and
manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized
the steps that permit applicants must follow which include
CONSTI 2 CASES Free Exercise of Religion
informing the licensing authority ahead of time as regards the date,
public place, and time of the assembly. 242 This would afford the
public official time to inform applicants if there would be valid
objections, provided that the clear and present danger test is the
standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in
Batas Pambansa No. 880, otherwise known as the Public Assembly
Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as
a valid content-neutral regulation. In the 2006 case of Bayan v.
Ermita,244 this court discussed how Batas Pambansa No. 880 does
not prohibit assemblies but simply regulates their time, place, and
manner.245 In 2010, this court found in Integrated Bar of the
Philippines v. Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without
first affording petitioners the opportunity to be heard. 247
We reiterate that the regulation involved at bar is content-based.
The tarpaulin content is not easily divorced from the size of its
medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the
provisions imposing a size limit for tarpaulins are content-neutral
regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed." 248
If we apply the test for content-neutral regulation, the questioned
acts of COMELEC will not pass the three requirements for
evaluating such restraints on freedom of speech.249 "When the
speech restraints take the form of a content-neutral regulation, only
a substantial governmental interest is required for its
validity,"250 and it is subject only to the intermediate approach. 251
This intermediate approach is based on the test that we have
prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:
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[1] if it is within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3] if
the governmental interest is unrelated to the suppression of free
expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the
furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of
the COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the
second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include constitutionally
declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure equal
opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to
posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different
sizes gives candidates and their supporters the incentive to post
larger posters[,] [and] [t]his places candidates with more money
and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities." 257
First, Adiong v. COMELEC has held that this interest is "not as
important as the right of [a private citizen] to freely express his
choice and exercise his right of free speech."258 In any case, faced
with both rights to freedom of speech and equality, a prudent
course would be to "try to resolve the tension in a way that protects
the right of participation." 259
CONSTI 2 CASES Free Exercise of Religion
Second, the pertinent election lawsrelated to private property only
require that the private property owner’s consent be obtained when
posting election propaganda in the property. 260 This is consistent
with the fundamental right against deprivation of property without
due process of law.261 The present facts do not involve such posting
of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution 262 on their authority to
recommend effective measures to minimize election spending.
Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based
on the two feet (2’) by three feet (3’) size limitation under Section
6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation. 263
This court held in Adiong v. COMELEC that "[c]ompared to the
paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are
of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not
curtailed. As petitioners pointed out, the size limitation will not
serve the objective of minimizing election spending considering
there is no limit on the number of tarpaulins that may be posted. 265
The third requisite is likewise lacking. We look not only at the
legislative intent or motive in imposing the restriction, but more so
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at the effects of such restriction, if implemented. The restriction
must not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to
make speech.
In this case, the size regulation is not unrelated to the suppression
of speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has
the effect of dissuading expressions with political consequences.
These should be encouraged, more so when exercised to make
more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower
test of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to
further speech by the electorate. Given the stature of petitioners
and their message, there are indicators that this will cause a
"chilling effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In
the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis has
earlier asserted that "the materials on which words were written
down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of
private individuals for the endorsement of their electoral
campaigns.
CONSTI 2 CASES Free Exercise of Religion
On the one extreme, this can take illicit forms such as when
endorsement materials in the form of tarpaulins, posters, or media
advertisements are made ostensibly by "friends" but in reality are
really paid for by the candidate or political party. This skirts the
constitutional value that provides for equal opportunities for all
candidates.
However, as agreed by the parties during the oral arguments in this
case, this is not the situation that confronts us. In such cases, it will
simply be a matter for investigation and proof of fraud on the part
of the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage
by the possibility of abuse by those seeking to be elected. It is true
that there can be underhanded, covert, or illicit dealings so as to
hide the candidate’s real levels of expenditures. However, labelling
all expressions of private parties that tend to have an effect on the
debate in the elections as election paraphernalia would be too
broad a remedy that can stifle genuine speech like in this case.
Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message
of a candidate, others will spend their own resources in order to
lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party.
In lieu of donating funds to the campaign, they will instead use
their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and
statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what
candidates and political parties will carry in their election posters or
media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through
rhetorical devices, it communicates the desire of Diocese that the
positions of those who run for a political position on this social issue
be determinative of how the public will vote. It primarily advocates
a stand on a social issue; only secondarily — even almost
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incidentally — will cause the election or non-election of a
candidate.
The twin tarpaulins consist of satire of political parties. Satire is a
"literary form that employs such devices as sarcasm, irony and
ridicule to deride prevailing vices or follies,"268 and this may target
any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this
literary field, claimed that satire had two defining features: "one is
wit or humor founded on fantasy or a sense of the grotesque and
absurd, the other is an object of attack."271 Thus, satire frequently
uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a
list of dead individuals nor could the Archbishop of the Diocese of
Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin
caricatures political parties and parodies the intention of those in
the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its
author: Reproductive health is an important marker for the church
of petitioners to endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from candidates
and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective.
Thus, they usually simply exhort the public to vote for a person
with a brief description of the attributes of the candidate. For
example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke,"
or "Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression
has always been wary of censorship or subsequent punishment
that entails evaluation of the speaker’s viewpoint or the content of
one’s speech. This is especially true when the expression involved
has political consequences. In this case, it hopes to affect the type
of deliberation that happens during elections. A becoming humility
CONSTI 2 CASES Free Exercise of Religion
on the part of any human institution no matter how endowed with
the secular ability to decide legal controversies with finality entails
that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides
space for the weakest dissent. Tolerance has always been a
libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our
visionaries. Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality
that may soon evolve into creative solutions to grave social
problems. This is the utilitarian version. It could also be that it is
just part of human necessity to evolve through being able to
express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken together with
the guarantee of free expression, enhances each other’s value.
Among these are the provisions that acknowledge the idea of
equality. In shaping doctrine construing these constitutional values,
this court needs to exercise extraordinary prudence and produce
narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as
exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two
paradigms of free speech that separate at the point of giving
priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech
prevails over regulation[,] but regulation promoting political
equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as
protecting, even implicitly subsidizing, unpopular or dissenting
voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political
actors who, through authority, power, resources, identity, or status,
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have capabilities that may drown out the messages of others. This
is especially true in a developing or emerging economy that is part
of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to
find one’s authentic self or to participate in the self determination
of one’s communities is not new only to law. It has always been a
philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social
theorist Herbert Marcuse recognized how institutionalized
inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already
established machinery of discrimination."275 In his view, any
improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of
those in power and control.276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken in a
real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology,
but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one’s own life: to
be able to determine what to do and what not to do, what to suffer
and what not. But the subject of this autonomy is never the
contingent, private individual as that which he actually is or
happens to be; it is rather the individual as a human being who is
capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the
other is not that of finding a compromise between competitors, or
between freedom and law, between general and individual interest,
common and private welfare in an established society, but of
creating the society in which man is no longer enslaved by
institutions which vitiate self-determination from the beginning. In
other words, freedom is still to be created even for the freest of the
existing societies.277 (Emphasis in the original)
CONSTI 2 CASES Free Exercise of Religion
Marcuse suggests that the democratic argument — with all opinions
presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating
and choosing on the basis of knowledge, that they must have
access to authentic information, and that, on this basis, their
evaluation must be the result of autonomous thought." 278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer
compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited by
those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural
right’ of resistance for oppressed and overpowered minorities to
use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks
away and transcends from established hierarchies, power
structures, and indoctrinations. The tolerance of libertarian society
he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal
scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations such
as "expressive, deliberative, and informational interests,"282 costs or
the price of expression, and background facts, when taken
together, produce bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value of expressive
liberties. Justice Brandeis proposed that "public discussion is a
political duty."284 Cass Sustein placed political speech on the upper
tier of his twotier model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as "both
intended and received as a contribution to public deliberation about
some issue."286
But this is usually related also tofair access to opportunities for
such liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some
guarantee that efforts to express views on matters of common
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concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of
speech with more speech."289 This view moves away from playing
down the danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred strategy for
addressing them."290 However, in some cases, the idea of more
speech may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a formal rather than a
substantive sense."292 Thus, more speech can only mean more
speech from the few who are dominant rather than those who are
not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on
the validity of Section 11(b) ofthe Electoral Reforms Law of
1987.293 This section "prohibits mass media from selling or giving
free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections."294 This court
explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional
provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises
or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
CONSTI 2 CASES Free Exercise of Religion
Section 1. The Congress shall give highest priorityto the enactment
of measures that protect and enhance the right of all the people to
human dignity, reducesocial, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s
guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of
equality of opportunity or equality inthe ability of citizens as
speakers should not have a bearing in free speech doctrine. Under
this view, "members of the public are trusted to make their own
individual evaluations of speech, and government is forbidden to
intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market." 297 This is
consistent with the libertarian suspicion on the use of viewpoint as
well as content to evaluate the constitutional validity or invalidity of
speech.
The textual basis of this view is that the constitutional provision
uses negative rather than affirmative language. It uses ‘speech’ as
its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this, "government must
leave speakers and listeners in the private order to their own
devices in sorting out the relative influence of speech."300
Page 261 of 267
Justice Romero’s dissenting opinion in Osmeña v. COMELEC
formulates this view that freedom of speech includes "not only the
right to express one’s views, but also other cognate rights relevant
to the free communication [of] ideas, not excluding the right to be
informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of
elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to
pressure — the utmost ventilation of opinion of men and issues,
through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to
truly reflect the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only
to emphasize free speech primacy such that"courts, as a rule are
wary to impose greater restrictions as to any attempt to curtail
speeches with political content,"303 thus:
the concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the
market place of ideas is still the best alternative to censorship." 305
Parenthetically and just to provide the whole detail of the
argument, the majority of the US Supreme Court in the campaign
expenditures case of Buckley v. Valeo "condemned restrictions
(even if content-neutral) on expressive liberty imposed in the name
of ‘enhanc[ing] the relative voice of others’ and thereby
‘equaliz[ing] access to the political arena." 306 The majority did not
use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on
the amount which a person can speak, which takes out of his
CONSTI 2 CASES Free Exercise of Religion
exclusive judgment the decision of when enough is enough,
deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political
campaigning inherently constricts the sum of public information
and runs counter to our ‘profound national commitment that
debate on public issues should be uninhibited, robust, and wide-
open.’"308
In fact, "[c]onstraining those who have funds or have been able to
raise funds does not ease the plight of those without funds in the
first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market
forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose
limitations is not necessarily to argue that the sky’s the limit
[because in] any campaign there are saturation levels and a point
where spending no longer pays off in votes per dollar." 310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality and
the effect of speech. It valorizes the ability of human beings to
express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it
will have in a deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the majority may
have the effect of drowning out the speech and the messages of
those in the minority. In a sense, social inequality does have its
effect on the exercise and effect of the guarantee of free speech.
Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who
espouse the more popular ideas will have better reception than the
subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own
degree of struggle.
Page 262 of 267
The traditional view has been to tolerate the viewpoint of the
speaker and the content of his or her expression. This view, thus,
restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This
should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v. COMELEC
and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made
by persons who are not candidates or who do not speak as
members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible
range of opinions coming from the electorate including those that
can catalyze candid, uninhibited, and robust debate in the criteria
for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a
private citizen which will not amount toan election paraphernalia to
be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally
valid if it reaches into speech of persons who are not candidates or
who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that,
taken as a whole, has for its principal object the endorsement of a
candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing
the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation
must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be
CONSTI 2 CASES Free Exercise of Religion
prohibited or censored onthe basis of its content. For this purpose,
it will notmatter whether the speech is made with or on private
property.
This is not the situation, however, in this case for two reasons. First,
as discussed, the principal message in the twin tarpaulins of
petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio
Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this
case, will not pass the test of reasonability. A fixed size for election
posters or tarpaulins without any relation to the distance from the
intended average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful
exercise of the right to suffrage,312 the present case also involves
one’s right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by
applying such regulations to private individuals. 314 Certainly, any
provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the
tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post
the material on their walls.
Even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their right to
use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz: 315
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Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal
protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where
decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private property." 317 Consequently,
it violates Article III, Section 1 of the Constitution which provides
thatno person shall be deprived of his property without due process
of law. This court explained:
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person’s acquisitions without control or diminution save by the
law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245
US 60 [1917])318
This court ruled that the regulation in Adiong violates private
property rights:
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest, the
burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in
this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it
prohibits the posting or display of election propaganda in any place,
whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front
dooror on a post in his yard. While the COMELEC will certainly never
CONSTI 2 CASES Free Exercise of Religion
require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or
regulation, may do.319 Respondents ordered petitioners, who are
private citizens, to remove the tarpaulin from their own property.
The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to
property. There may be no expression when there is no place where
the expression may be made. COMELEC’s infringement upon
petitioners’ property rights as in the present case also reaches out
to infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest
they seek to promote justifies the intrusion into petitioners’
property rights. Election laws and regulations must be reasonable.
It must also acknowledge a private individual’s right to exercise
property rights. Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to
prevent the posting of election propaganda in private property
without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations.
Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the
tarpaulin in their own private property is an impermissible
encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC
in issuing the questioned notice and letter violated the right of
petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church
and state.320 This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
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and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious
test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none
stablishment clause.322 Second is the free exercise and enjoyment
of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz,
imams, or any other religious make such act immune from any
secular regulation. 324 The religious also have a secular existence.
They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not
all acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of
the petitioners, the Bishop and the Diocese of Bacolod, on the RH
Bill is inextricably connected to its Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these cases stems from
the reality that every act can be motivated by moral, ethical, and
religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths,
to religious ceremonies, and then to acts of a secular character that
may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any
religious bearing.
Definitely, the characterizations ofthe religious of their acts are not
conclusive on this court. Certainly, our powers of adjudication
cannot be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The
Division Superintendent of Schools of Cebu326 in claiming that the
court "emphatically" held that the adherents ofa particular religion
shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovah’s Witnesses from participating in the
CONSTI 2 CASES Free Exercise of Religion
flag ceremony "out of respect for their religious beliefs, [no matter
how] "bizarre" those beliefsmay seem to others."328 This court
found a balance between the assertion of a religious practice and
the compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the
government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or
effect therefore 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."330
This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative
purpose; (2) it neither advances nor inhibits religion; and (3) it does
not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face,
"does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears to
coincide with the message of the tarpaulin regarding the RH Law
does not, by itself, bring the expression within the ambit of
religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals
to support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding
upon this court. The position of the Catholic religion in the
Page 265 of 267
Philippines as regards the RH Law does not suffice to qualify the
posting by one of its members of a tarpaulin as religious speech
solely on such basis. The enumeration of candidates on the face of
the tarpaulin precludes any doubtas to its nature as speech with
political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v.
National Labor Relations Commission333 cited by petitioners finds no
application in the present case. The posting of the tarpaulin does
not fall within the category of matters that are beyond the
jurisdiction of civil courts as enumerated in the Austriacase such as
"proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities
withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what
it thought was its duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the speech
of the electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature
of those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list
organizations.
They are classified into black and white: as belonging to "Team
Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected
speech.
That petitioners chose to categorize them as purveyors of death or
of life on the basis of a single issue — and a complex piece of
legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may
agree to the way their thoughts were expressed, as in fact there
CONSTI 2 CASES Free Exercise of Religion
are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to
consider being more broad-minded and non-judgmental. Some may
have expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a detailed code
that prescribes good conduct. It provides space for all to be guided
by their conscience, not only in the act that they do to others but
also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not
only by those in the minority. This can often be expressed by
dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean
that their statements are true, or that they have basis, or that they
have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by
petitioners. It is a specie of expression protected by our
fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the
interpretation of petitioners of their ecclesiastical duty, but their
parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms:
expression by the electorate that tends to rouse the public to
debate contemporary issues. This is not speechby candidates or
political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we
should all deserve. It is protected as a fundamental and primordial
right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
Page 266 of 267
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.

SO ORDERED.

CONSTI 2 CASES Free Exercise of Religion Page 267 of 267