Professional Documents
Culture Documents
Escritor I
455 Phil. 411; 408 SCRA 1 (2003); In view of Dean Leonens repeated reference on this case. With focus on points not fully discussed in Estrada v. Escritor II (2006), the assigned reading
o Established in Braunfeld v. Brown (1961). o Since the burden was the indirect effect of a law with a secular purpose, it would violate the
Free Exercise Clause only if there were alternative ways of achieving the state's interest
B. Establishment Clause
Everson v. Board of Education (1947) o The US Supreme Court's first encounter with the Establishment Clause. o Court adopted Jefferson's metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause. o Recall: phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States. Lemon test o Laid down in Lemon v. Kurtzman (1971). o The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. 1. The statute must have a secular legislative purpose. 2. Its primary or principal effect must be one that neither advances nor inhibits religion. 3. The statute must not foster 'an excessive entanglement with religion.' McGowan v. Maryland (1961)
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o Illustrated that in the area of government displays or affirmations of belief, the Court has given
leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. Marsh v. Chambers (1983) o The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs
o o
o 1973 Constitution added in General Provisions in Article XV Section 15 that "(t)he separation of
o church and state shall be inviolable." the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.
B. Jurisprudence o In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic.
o Aglipay v. Ruiz defined "religion" as a "profession of faith to an active power that binds and
elevates man to his Creator."
1. Free Exercise Clause o The Free Exercise Clause principally guarantees voluntarism.
American Bible Society v. City of Manila (1957) o Illustrated that religious speech comes within the pale of the Free Exercise Clause. o This was the Courts maiden affirmation of the clear and present danger rule in the religious freedom area [although it was not clear if the Court applied the test in the case] where it should be identified that: 1. there is a secular value the government regulation sought to protect
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2. the religious speech posed a clear and present danger to this or other secular value protected by government 3. there was danger but it could not be characterized as clear and present. Gerona v. Secretary of Education (1957) o Held that The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought; Dean: applied belief-action test. o Involves conduct expressive of religious belief colliding with a rule prescribed in accordance with law. o Laid down the following religious freedom doctrines: 1. it is incumbent upon the Court to determine whether a certain ritual is religious or not; 2. religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability incidentally burdens the exercise of one's religion, one's r.ight to religious freedom cannot justify exemption from compliance with the law Victoriano v. Elizalde Rope Unions (1974) o Court mentioned several tests in determining when religious freedom may be validly limited. 1. "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom 2. religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state's secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden 3. "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes [this test was employed although Court found it is not applicable in the case] o Although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Ebranilag v. Th Division Superintendent of Schools (1993) o Oveturned the Gerona ruling. o Used the grave and imminent danger" test laid down in Justice Teehankee's dissent in German v. Barangan: The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Iglesia ni Cristo . CA, et al. (1996) o The Court applied in unequivocal terms the "clear and present danger" test to religious speech. o Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial" o Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. * The Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.
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2. Establishment Clause
Values sought to be protected by the Establishment Clause 1. volunteerism a. personal dimension -- it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. b. social dimension -- it means that the "growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. 2. insulation of the political process from interfaith dissension Aglipay v. Ruiz (1937) o Neutrality principle was applied. o The Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Garces v. Estenzo (1981) o The Court declared that not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Pamil v. Teleron, et al. (1978) o In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. o 7 members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. o The prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Fonacier v. CA (1985) o The Courting, citing Watson v. Jones, declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association is that the rules for resolving such controversies should be those of any voluntary association.
o One set of facts, for instance, can be differently viewed from the Establishment Clause
o perspective and the Free Exercise Clause point of view, and decided in opposite directions. (e.g. Pamil v. Teleron) Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. Tension also exists when a law of general application provides exemption in order to uphold free exercise.
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o In some cases, a practice is obviously violative of the Establishment Clause but the Court
o nevertheless upholds it. How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge.