1

Chapter 1

INTRODUCTION

Background of the Study

Jaro is the cradle of Christian faiths with Roman Catholic

established and founded in the area. It is notable for its large

amount of nineteenth- century architecture. Stradding the main

plaza is the antique Jaro Cathedral and the Palasyo, the

archbishop’s residence.

Jaro’s celebration of the Feast of Nuestra Señora de la

Candelaria (Our Lady of the Candles) every February 2 is well

known in the Philippines. The fiesta features pageantry with a

fiesta queen from one of the prominent families of the place, and

a cockfight at the Iloilo Coliseum, where cockfighting

aficionados from all over the Philippines converge.

In view of such religious event, Regulation Ordinance No.

2014-0141 was passed by the Office of the Sangguniang Panlungsod

authorizing the closure of the Jaro Plaza from January 15 –

February 3, 2014, after Hon. Jed Patrick E. Mabilog, City Mayor,

authorizes the Association of Barangay Captains, Jaro District

through Executive Order No. 100, Series of 2013 to manage the

Jaro Agro- Idustrial and Charity Fair.

During the closure, the Jaro Public Plaza was secured and

used as an area for the Jaro Agro-Industrial and Charity Fair.

It has become a place of trade. Stalls were instituted and rented

by the citizens where they can sell food, ready to wear (RTWs)

1 Regulation Ordinance No. 2014-14 – An ordinance authorizing the Association of Barangay Captains (ABC), JaroDistrict, to close the Jaro Plaza from January 15 – February 3, 2014, in connection with the celebration of the Jaro Agro- Industrial and Charity Fair 2014, except the use of sidewalks surrounding the said plaza. (Attached as Appendix A)

2

dresses, shirts, shorts, toys and even ukay- ukay (used clothing)

and borloloys (fancy jewelries). Some sell ornamental plants,

orchids, wooden craft and marble stuffs. Also, festival rides

such as ferris wheel and octopus ride were established.

However, one can only enter the Jaro Plaza upon payment of

the entrance fee of Php 10.00 per person.

Furthermore, such closure was only made during the Feast

celebrated by Roman Catholic devotees which is also deemed to be

made only in their favour as reflected in Regulation Ordinance

No. 2014-014, one of the whereas clauses states that, one of the

most celebrated events in the City of Iloilo is the Patronal

Fiesta of Nuestra Señora de la Candelaria of the District of Jaro

which caters to thousands of tourists every year.

Faced with this reality every year, such closure of the Jaro

Plaza in commemoration of the Feast has become a major threat in

the separation of the church and state and the non-establishment

clause set forth in the Constitution. It was provided that the

separation of the church and state is inviolable and that it

prohibits the state from passing laws which aid one religion, aid

all religions, or prefer one religion over another.

Moreover, lots of issues regarding the legality of the

closure and use of the Jaro Plaza arise every year. Such issues

were not yet deemed given finality by the authorities, as these

were tackled again and again by radio reporters and TV

personalities.

3

Taking in mind that not all people are mindful of the law,

its purpose and its effects, one must be an instrument to make

the public know the truth and in order to do what is right.

Hence, this research paper.

Statement of the Problem

This study aims to determine if the closure of the Jaro

Plaza in commemoration of the Feast of Nuestra Señora de la

Candelaria violates Section 5 of Article III of the 1987

Constitution, specifically the non-establishment clause.

Hypotheses of the Study

1. The closure of Jaro Plaza in commemoration of the Feast of

Nuestra Señora de la Candelaria does not violate the non-

establishment clause set forth by the Constitution.

2. The closure of Jaro Plaza in commemoration of the Feast of

Nuestra Señora de la Candelaria violates the non-establishment

clause set forth by the Constitution.

Theoretical Framework of the Study

Benevolent Neutrality-Accommodation

The Supreme Court of the Philippines, ruling in 2003 and

2006 in the landmark case of Estrada vs. Escritor,2 established

the doctrine of benevolent neutrality-accommodation. The 2006

ruling, penned by former Chief Justice Puno, explained

2 Estrada vs. Escritor, A.M. No. P-02-1651, August 4,2003 and June 22, 2006;

Retrieved February 28, 2014; http://en.wikipedia.org/wiki/Freedom_of_religion_in_the_Philippines.

4

benevolent-neutrality in the context of U.S. jurisprudence as

follows:

Under the benevolent-neutrality theory, the principle

underlying the First Amendment is that freedom to carry out one’s

duties to a Supreme Being is an inalienable right, not one

dependent on the grace of legislature. Religious freedom is seen

as a substantive right and not merely a privilege against

discriminatory legislation. With religion looked upon with

benevolence and not hostility, benevolent neutrality allows

accommodation of religion under certain circumstances.

The ruling went on to cite a U.S. Supreme Court decision

which had held that if prohibiting the exercise of religion is

merely the incidental effect of a generally applicable and

otherwise valid provision, the First Amendment has not been

offended.  Though concurring in the decision,

Justice O'Connor dissented strongly from the rationale, arguing

that a compelling state interest test should have been applied.

Echoing Justice O'Connor's point from the U.S. case, the

ruling in Estrada vs. Escritor3 went on to quote her as having

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. The ruling then

declared 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, and summarized

a three-part compelling state interest test by quoting Michael W.

3 Estrada vs. Escritor, A.M. No. P-02-1651, August 4,2003 and June 22, 2006

5

McConnell as follows:If the plaintiff can show that a law or

government practice inhibits the free exercise of his religious

beliefs, the burden shifts to the government to demonstrate that

the law or practice is necessary to the accomplishment of some

important (or ‘compelling’) secular objective and that it is the

least restrictive means of achieving that objective. If the

plaintiff meets this burden and the government does not, the

plaintiff is entitled to exemption from the law or practice at

issue. In order to be protected, the claimant’s beliefs must be

‘sincere’, but they need not necessarily be consistent, coherent,

clearly articulated, or congruent with those of the claimant’s

religious denomination. ‘Only beliefs rooted in religion are

protected by the Free Exercise Clause’; secular beliefs, however

sincere and conscientious, do not suffice.

The ruling noted that the then-current prevailing view under

U.S. law is that that there are no required accommodations under

the First Amendment, although it permits of legislative

accommodations. Considering Philippine jurisprudence, though, the

ruling said: By juxtaposing the American Constitution and

jurisprudence against that of the Philippines, it is immediately

clear that one cannot simply conclude that we have adopted—lock,

stock and barrel—the religion clauses as embodied in the First

Amendment, and therefore, the U.S. Court’s interpretation of the

same. Unlike in the U.S. where legislative exemptions of religion

had to be upheld by the U.S. Supreme Court as constituting

permissive accommodations, similar exemptions for religion are

mandatory accommodations under our own constitutions.

These landmark decisions in Estrada vs.Escritor established

that benevolent neutrality-accommodation is the framework by

6

which free exercise cases must be decided in the Philippines.

This amount to a requirement that any law which conflicts with a

violator's sincerely held religious beliefs must pass a strict

scrutiny test in order to be enforceable.

Conceptual Framework of the Study

The Philippines is a Catholic-dominated nation, but the

concept of separation of church and state has been well-enshrined

in our Constitution. Our Constitution echoes the First Amendment

to the US Constitution. In Article III, Section 5 of the 1987

Philippine Constitution, it is stated 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. No

religious test shall be required for the exercise of civil or

political rights.”

Section 5 capsulate the twin aspects of religious freedom. 

The first part is the non-establishment clause: “no law shall be

made respecting an establishment of religion” while the second

part is the free exercise clause.  These two reinforces each

other and reflect the main intent to separate the church and the

state.  By allowing the free exercise of religion, the State

cannot be said to be supporting the establishment of any

particular religion.  And by not espousing a state religion, the

state guarantees the people of the freedom to believe in anything

7

or nothing at all and to act according to that belief or non-

belief.4

The Non- Establishment Clause seeks to protect voluntarism

and insulation of the political process from interfaith

dissension. Voluntarism 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.

Insulation from political process means that the growth through

voluntary support of its members will not take place if there is

intervention from the State.5

What non-establishment calls for is government neutrality in

religious matters. Such government neutrality may be summarized

in four general propositions: (1) Government must not prefer one

religion over another or religion over irreligion because such

preference would violate voluntarism and breed dissension; (2)

Government funds must not be applied to religious purposes

because this too would violate voluntarism and breed interfaith

dissension; (3) Government action must not aid religion because

this too can violate voluntarism and breed interfaith dissension;

(4) Government action must not result in excessive entanglement

with religion because this too can violate voluntarism and breed

interfaith dissension.6

4 Separation of the Church and State: Where to Draw the Line; Retrieved March 16, 2014; http://www.pinoylegal.com/tag/non-establishment-clause.5 The 1987 Constitution of the Republic of the Philippines: A Commentary; Bernas, S.J. 2009 Edition,page 345.6 Bernas, S.J. 2009 Edition; The 1987 Constitution of the Republic of the Philippines: A Commentary;,page 346.

8

Lemon Test

In the case of Lemon v. Kurtzman7, the Supreme Court of the

United States ruled that Pennsylvania's 1968 Non public

Elementary and Secondary Education Act (represented through David

Kurtzman), which allowed the state Superintendent of Public

Instruction to reimburse non public schools (most of which

were Catholic) for the salaries of teachers who taught secular

material in these non public schools, secular textbooks and

secular instructional materials, violated the Establishment

Clause of the First Amendment. The decision also upheld a

decision of the First Circuit, which had struck down the Rhode

Island Salary Supplement Act providing state funds to supplement

salaries at nonpublic elementary schools by 15%. As in

Pennsylvania, most of these funds were spent on Catholic schools.

The Court's decision in this case established the "Lemon

test", which details the requirements for legislation

concerning religion. It consists of three prongs:

1.The government's action must have a secular legislative

purpose; (Purpose Prong)

2.The government's action must not have the primary effect of

either advancing or inhibiting religion; (Effect Prong)

3.The government's action must not result in an "excessive

government entanglement" with religion. (Entanglement Prong)

If any of these prongs is violated, the government's action is

deemed unconstitutional under the Establishment Clause of

the First Amendment to the United States Constitution.

7 403 U.S. 602 S. Ct.2105,29 L, Ed. 2d 745, 1971. U.S.

9

The act stipulated that "eligible teachers must teach only

courses offered in the public schools, using only materials used

in the public schools, and must agree not to teach courses in

religion." Still, a three-judge panel found 25% of the State's

elementary students attended non-public schools, about 95% of

those attended Roman Catholic schools, and the sole beneficiaries

under the act were 250 teachers at Roman Catholic schools.

The court found that the parochial school system was "an

integral part of the religious mission of the Catholic Church,"

and held that the Act fostered "excessive entanglement" between

government and religion, thus violating the Establishment Clause.

Both statutes are unconstitutional under the Religion Clauses of

the First Amendment, as the cumulative impact of the entire

relationship arising under the statutes involves excessive

entanglement between government and religion.8

Significance of the Study

The result of this research may be beneficial to the

following:

City Officials, Association of Barangay Captains and the

Local Government Unit. They can gain insights from the results of

this study. To determine if the passed regulation ordinance is

not in violation of the non-establishment clause and to further

defend their assailed sponsored ordinance faced with legality

issues. This study aims to provide a basis for future ordinance

or resolutions to be passed in order to afford better projects in

the future without breaking the wall that separates the church

from the state.

8 Retrieved March 1, 2014; http://en.wikipedia.org/wiki/Lemon_v._Kurtzman.

10

Public. This research was made to provide legal grounds as

basis to answer the issues raised regarding the legality of the

closure of the Jaro Plaza. To enlighten them of the law and its

application in cases which involves the church and the state.

Future Researchers. To provide related or similar

studies regarding the separation of the church and state and the

non – establishment clause as set forth in the 1987 Philippine

Constitution.

Definition of Terms

For clarity and understanding, the following terms are

hereby defined conceptually and operationally.

Non-Establishment Clause. Non-establishment clause means

that the State cannot set up a church; nor pass laws which aids

one religion; aid all religion, or prefer one religion over

another nor force nor influence a person to go to or remain away

from church against his will; or force him to profess a belief or

disbelief; that the State cannot openly or secretly participate

in the affairs of any religious organization or group and vice

versa”.9

As used in this study, the same definition is used.

Church. This means a building for public and especially

Christian worship; a body or organization of religious believers

or the whole body of Christians.10

As used in this study, the same definition is used.

9 Everson vs. Board of Education, 330 U.S. 1, 18 (1947). 10 Merriam- Webster, Incorporated 2012.

11

State. This term refers to a politically organized body of

people usually occupying a definite territory; a body of persons

constituting a special class in a society; or the members or

representatives of the governing classes assembled in a

legislative body.11

As used in this study, state is a community of persons, more

or less numerous, permanently occupying a fixed territory and

possessed of an independent government organized for political

ends to which the great n=body of inhabitants render habitual

obedience.12

Religion. This means the service and worship of God or the

supernatural, the commitment or devotion to religious faith or

observance. It is derived from the Middle English religion, from

Old French religion, from Latin religion, vaguely referring to a

“bond between man and the gods.” This pre-Christian term for the

cult and rituals of pagan Rome was first Christianized in the

Latin translation of the Bible. It may be defined as any specific

system of belief, worship, conduct, etc., often involving code of

ethis and philosophy.13

As used in this study and in Philippine jurisprudence,

religion, for purposes of the religion clauses, has thus far been

interpreted as theistic. It is defined as a profession of faith

to an active power that binds and elevates man to his Creator.14

It also includes a rejection of religion, refusal to believe in a

11 Merriam- Webster, Incorporated 2012.12 Garner, Introduction to Political Science, 41.; The Concept of the State, Constitutional Law I by Isagani Cruz, p. 14. 13 Webster’s New Dictionary, p. 1228.14 Church and State: The Religious Clauses in the Philippine Consittution; Retrieved March 16, 2014; http://journal.lawcenter.ph/articles/2006/11/24/church-and-state-the-religious-clauses-in-philippine-constitution.

12

hereafter or in the supremacy of a supernatural person with

powers over life and death.15

Chapter 2

REVIEW OF RELATED LITERATURE AND STUDIES

History of Jaro Plaza

15 Constitutional Law 2007 by Isagani Cruz, p. 177.

13

Jaro Plaza, now the Graciano Lopez Jaena Park, is the center

of activity in Jaro. It has been a silent witness to the history

of the people. It has its historical value and that numerous

attractions surrounds it which include the Jaro Cathedral, the

Jaro Belfry, Old Mansions, the former Jaro City Hall and the

Archbishop’s Place. It also serves as a show-window of Jaro's

early development as a prosperous town and as the center of

Catholicism in Western Visayas. It is a significant religious,

administrative and cultural landmark and a reflection of

Ilonggo’s rich culture.16

This plaza was started by Spanish missionaries or government

as a belief that a plaza is an effective instrument of bringing

the natives closer to Catholicism and in achieving effective

administrative control over the people.

On its religious function, it was where the life cycle of

the people was anchored. It was where they were baptized and

married, had their confirmation and confession, and brought to

when they were dead. The plaza also was the center of other

religious activities such as the patronal fiesta, holy week

celebration, passion singing, Christmas celebration, Flores de

Mayo and Santacruzan.17

Under the Americans up to more recent times, the Jaro Plaza

has assumed wider roles. The Jaro’s celebration of the Feast of

Nuestra Senora de la Candelaria (Our Lady of Candles) every

February 2 is well known in the Philippines. It was even attended

16 Jaro Plaza; Retrieved February 25, 2014; http://www.exploreiloilo.com/guide/jaro-plaza/. 17 Henry F. Funtencia, PH D.,The Jaro Plaza as a Heritage Gem, http://www.thenewstoday.info/2008/10/31/the.jaro.plaza.as.a.heritage.gem.html.

14

by prominent politicians, businessmen and civic leaders from

various parts of the country. As such, the Jaro Plaza became

associated with food in abundance, grand fireworks display,

elegant ballroom dancing, fabulous Jaro Queen presentation,

inspiring agro-industrial fair, various interesting cultural

programs, and plenty of assorted rides and show. This fiesta

features pageantry with a fiesta queen from one of the prominent

families of the place, and a cockfight at the Iloilo Coliseum,

where cockfighting aficionados from all over the Philippines

converge. Also, the plaza became associated with political

rallies and, in more recent times, protest activities and even

commercialism like the ukay-ukay and borloloys. 18

Feast of Nuestra Señora De La Candelaria

February 2 is the Nuestra Señora de la Candelaria, the Feast

of Our Lady of Candle or Candelaria Festival in Jaro Iloilo City.

Every year, Thousands of devotees gather at the Jaro Cathedral to

celebrate the festival and this is the reason why Jaro is

considered by many as the religious capital of Western Visayas.

During the celebration, devotees would always attend the

mass held inside the church while some go to the Our Lady of

Candle Shrine located on top of the church to light the “Perdon”

candle.

Strange happening surrounds the image and many believe that

the Senora is miraculous. It was claimed that when a fisherman

found the image in the Iloilo river it was only a foot tall, but

today the image is about 5 feet tall. With this, devotees believe

18 Jaro Fiesta by Iloilonetph,Retrieved March 1, 2014, from: http://www.iloilo.net.ph/jaro-fiesta/.

15

the Nuestra Señora de la Candelaria makes miracles in their

lives. Others would pray for good health while some pray to bear

a child or ask for some intentions.19

Separation of the Church and State

It is said that when the Pharisees and Herodians asked Jesus

whether or not they should pay taxes to the emperor, Jesus

answered: “Give to Caesar what is Caesar’s and to God what is

God’s.”  This could very well illustrate the ancient origin of

the concept of separation of the church and the state, though the

phrase separation of church and state is more popularly

attributed to Thomas Jefferson.  In his letter to the Danbury

Baptists in 1802, he referred to the First Amendment20 to the US

Constitution as a “wall of separation” between church and

state.21

This doctrine cuts both ways. It is not only the State that

is prohibited from interfering in purely ecclesiastical affairs;

the Church is likewise barred from meddling in purely secular

matters. And the reason is plain. A union of the Church and the

State, as aptly remarked, “tends to destroy government and to

degrade religion.22

19 Nuestra Senora de la Candelaria: Feast of Our Lady of Candle – Jaro Candelaria Festival by ramzkie.com, Retrieved March 16, 2014,from: http://ramzkie.com/2012/02/nuestra-senora-de-la-candelaria-feast-of-our-lady-of-candle-jaro-candelaria-festival/#ixzz2w7ZpYUB3. ; iloiloilove.com.

20 The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law “respecting an establishment of religion”, impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

21Retreived March 16, 2014, from: http://en.wikipedia.org/wiki/Separation_of_church_and_state; 22 Consitutional Law (2007) by Isagani Cruz, p. 180

16

Separation simply means that each one should not interfere

with the other’s affairs.  Each one has its own sphere of

influence and should not in any way exercise dominance over the

other.  However, this does not mean total isolation or non-

cooperation. Instead, they should be like friendly neighbors who

do not meddle with the personal matters of the other but offers a

helping hand in times of trouble.23

The 1987 Constitution of the Philippines declares: The

separation of Church and State shall be inviolable as stated in

Article II, Section 6,24 and, 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 as stated in Article III, Section

5.25

Postage stamps depicting Philippines as the site of significant religious event

In the case of Aglipay vs Ruiz,26 the Director of Posts

announced in the dailies of Manila that he would order the issues

of postage stamps commemorating the celebration in the City of

Manila of the Thirty-third international Eucharistic Congress,

organized by the Roman Catholic Church. The petitioner, in the

fulfillment of what he considers to be a civic duty, requested

23Retreived March 16, 2014, from:http://www.pinoylegal.com/2010/06/separation-of-church-and-state-where-to-draw-the-line/#more-1081.24Art. II, Section 6 of The 1987 Constitution of the Republic of the Philippines25 Art. III, Section 5 of the 1987 Constitution of the Republic of the Philippines26 Aglipay v. Ruiz, 64 Phil. At 206, G.R. No. L-45459, March 1;Retrieved February 15, 2014; http://toblicasedigest.blogspot.com/2012/06/aglipay-vs.html.

17

Vicente Sotto, Esq., member of the Philippine Bar, to denounce

the matter to the President of the Philippines. In spite of the

protest of the petitioner's attorney, the respondent publicly

announced having sent to the United States the designs of the

postage stamps for printing. The issue here is whether or not the

selling of stamps in commemorating the Thirty-third International

Eucharistic Congress is in violation of the constitutional

provisions. It was held that the stamps were not issue and sold

for the benefit of the Roman Catholic Church. Nor were money

derived from the sale of the stamps given to that church. On the

contrary, it appears from the latter of the Director of Posts of

June 5, 1936, incorporated on page 2 of the petitioner's

complaint, that the only purpose in issuing and selling the

stamps was "to advertise the Philippines and attract more tourist

to this country." The officials concerned merely, took advantage

of an event considered of international importance "to give

publicity to the Philippines and its people.

Government sponsorship of town fiestas

In the case of Garces vs. Estenzo27 two resolutions of the

Barangay Council of Valencia, Ormoc City were passed:

a. Resolution No. 5- Reviving the traditional socio-

religious celebration every fifth of April. This provided for

the acquisition of the image of San Vicente Ferrer and

the construction of a waiting shed. Funds for the said projects

will be obtained through the selling of tickets and cash

donations.

b. Resolution No. 6- The chairman or hermano mayor of the

fiesta would be the caretaker of the image of San Vicente Ferrer

27 104 SCRA 510; G.R. L-53487, 25 May 1981.

18

and that the image would remain in his residence for one year and

until the election of his successor. The image would be made

available to the Catholic Church during the celebration of the

saint’s feast day.

The image was temporarily placed in the altar of the

Catholic Church of the barangay. However, after a mass, Father

Sergio Marilao Osmeña refused to return the image to the barangay

council, as it was the church’s property since church funds were

used in its acquisition.

Resolution No. 10 was passed for the authorization of hiring a

lawyer for the replevin case against the priest for the recovery

of the image. Resolution No. 12 appointed Brgy. Captain Veloso as

a representative to the case. The priest, in his answer assailed

the constitutionality of the said resolutions. The priest with

Andres Garces, a member of the Aglipayan Church, contends that

Sec. 8 Article IV1 and Sec 18(2) Article VIII) 2 of

the constitution was violated. 

As said by the Court this case is a petty quarrel over the

custody of the image. The image was purchased in connection with

the celebration of the barrio fiesta and neither for the purpose

of favoring any religion nor interfering with religious matters

or beliefs of the barrio residents. Any activity intended to

facilitate the worship of the patron saint (such as

the acquisition) is not illegal. Practically, the image was

placed in a layman’s custody so that it could easily be made

available to any family desiring to borrow the image in

connection with prayers and novena. It was the council’s funds

that were used to buy the image, therefore it is their property.

19

Right of the determination of custody is their right, and even if

they decided to give it to the Church, there is no violation of

the Constitution, since private funds were used. Not every

government 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.28

Book lending program for students in parochial schools

In the case of Board of Education v. Allen,29 a group of

New York school boards sued the state's Commissioner of Education

claiming that the Education Law violated both the First and

Fourteenth Amendments. The Law required the state to provide

textbooks to all school children in grades seven through twelve

regardless of whether they attended public or private schools.

The Court upheld the constitutionality of the New York Education

Law because it furthered a secular end. In Everson, the Court

decided that "the Establishment Clause does not prevent a State

from extending the benefits of state laws to all citizens without

regard for religious affiliation." The New York law has the

secular purpose of increasing the educational opportunities

available to students. Books are only loaned to the students, so

the parochial school never has ownership of them. Also, the law

does not allow for the loaning of religious textbooks. Parochial

28 March 2, 2014;http://cofferette.blogspot.com/2009/02/garces-vs-estenzo-104-scra-510-gr-l.html.29 392 U.S. 236 (1968)

20

schools offer religious and secular educations to students, this

law only furthers their efforts in the latter area.30 

Display of Creche in a Circular Setting

In the case of Lynch v. Donnelly,31 the plaintiff Daniel

Donnelly objects to a crèche included in a Christmas display as

violating the establishment clause of the United States

Constitution. A crèche included in a Christmas display, located

in a park, owned by a non-profit organization, is alleged to

violate the Establishment Clause, due to a government entity’s

involvement with religion. The display included such objects as a

Santa Claus house, a Christmas tree, a banner reading “Seasons

Greetings,” and a crèche. The crèche had been included in the

display for over 40 years.

The Plaintiff objected to the display and took action

against the Defendant, Dennis Lynch (Defendant), the Mayor of the

city. In ruling on the case, the Supreme Court of the United

States (Supreme Court) acknowledges that the line-drawing test

set forth in Lemon is useful when inquiring into whether the

challenged law or conduct has a secular purpose, whether its

principal or primary effect is to advance or inhibit religion and

whether it creates an excessive entanglement of government with

religion. The Supreme Court also acknowledges while the Lemon

test is useful, there analysis will not be confined to a single

test. The Supreme Court ruled that the inclusion of the crèche in

the Christmas display and the benefit caused by the inclusion of

30 Retrieved March 2, 2014;from: http://religiousfreedom.lib.virginia.edu/court/boar_v_allen.html.31 465 U.S. 668 (1984.

21

the crèche to one religion over another is incidental, indirect

and remote. Moreover, the display of the crèche is not an

advancement or endorsement of religion. It is only government

recognition of Christmas itself.32

Financial support for secular academic facilities

In the case of Tilton vs Richardson,33 the federal Higher

Education Facilities Act of 1963 provided construction grants to

church-sponsored higher educational institutions. The grants were

to be used for the construction of non-religious school

facilities. The act also stipulated that twenty years after the

grant had been given; schools were free to use the buildings for

any purpose whether the act violated the Religion Clauses of the

First Amendment. In a 5-to-4 decision, the Court held that only

the 20-year limitation portion of the Act violated the Religion

Clauses of the First Amendment. The Court invalidated the 20-year

clause, arguing that subsidizing the construction of facilities

used for non-secular purposes would have the effect of advancing

religion. The Court held that the church-related institutions in

question had not used their federally-funded facilities for

religious activities, and that the facilities were

"indistinguishable from a typical state university facility." The

Court also held that the Act did not excessively entangle the

government with religion, noting that college students were less

susceptible to religious indoctrination, that the aid was of "non

32 Retrieved March 2, 2014, from: http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-stone-/the-constitution-and-religion-/lynch-v-donnelly/2/.

33 403 U.S. 672.

22

ideological character," and that one-time grants did not require

constant state surveillance.34

Exemption from zoning requirements to accommodate unique architectural features of religious buildings

In Martin v. Corporation of the Presiding Bishop,35 the

highest state court in Massachusetts ruled that the Dover

Amendment,1 a state statute that denies local government the

authority to “prohibit, regulate or restrict the use of land or

structures for religious purposes …” authorized the Town of

Belmont to grant a church special permission to build a steeple

for a newly built Church of Jesus Christ of Latter-day Saints

temple that was taller than the local zoning provisions would

normally allow. Since Martin involved a Massachusetts statute,

normally the decision would evoke limited interest, and have

little precedential value, in other states.36

Congress appropriated funds to a church-run hospital

Bradfield v. Roberts37 was one of the earliest challenges to

government action on the grounds that it violated the

Establishment Clause. In this case, Congress appropriated funds

to a church-run hospital in the District of Columbia to be used

34 Retrieved March 2, 2014, from: http://www.oyez.org/cases/1970-1979/1970/1970_153.

35 747 N.E. 2d 131 (Mass. 2001), 53 ZD XX.

36Retrieved February 25, 2014; from: http://www.tandfonline.com/doi/abs/10.1080/00947598.2001.10396059#.Ux0D6_mSxWI37 175 U.S. 291, December 4, 1899, Supreme Court of the United States; Retrieved March 3, 2014, from: http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=us&vol=175&invol=291; http://supreme.justia.com/us/175/291.

23

for the care of veterans. The Court held that the appropriation

did not violate the Establishment Clause because the hospital was

itself created by an act of Congress. It was immaterial, the

Court found, and that the hospital was staffed by members of the

Catholic Church because their authority was circumscribed by the

act of Congress. The purpose of establishing the hospital was not

sectarian; rather, it was to provide care to the sick and

disabled persons in the District of Columbia. Because they had a

secular purpose, the statutes that created the hospital and

provided for its funding did not violate the Establishment

Clause.

Chapter 3

ARGUMENT, CONCLUSIONS AND RECOMMENDATIONS

Argument

Article III, Section 5 of the Philippine Constitution states

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.

No religious test shall be required for the exercise of civil or

political rights.38

38The 1987 Constitution of the Republic of the Philippines by Jose N. Nolledo and Mercedita S. Nolledo, 2007 Revised Ed.

24

This section is composed of two clauses, the free exercise

clause and the non establishment clause. Freedom of choice

guarantees the liberty of the religious conscience and prohibits

any degree of compulsion or burden, whether direct or indirect,

in the practice of one’s religion. The Free Exercise Clause

principally guarantees voluntarism, although the Establishment

Clause also assures voluntarism by placing the burden of the

advancement of religious groups on their intrinsic merits and not

on the support of the state.39

It was held that non-establishment clause means that the

State cannot set up a church or pass law aiding one religion, all

religion, or preferring one religion over another, or force a

person to believe or disbelieve in any religion. The intermediate

views are chiefly two: (1) the non-establishment clause prohibits

only direct support of institutional religion but not support

indirectly accruing to churches and church agencies through

support given to members; (2) both direct and indirect aid to

religion are prohibited but only if the support involves

preference of one religion over another or preference of religion

over irreligion.40

The non – establishment clause is violated when the State

gives any manifest support to any one religion, even if nothing

is done against the individual.41

39 Retrieved March 16, 2014, from:http://journal.lawcenter.ph/articles/2006/11/24/church-and-state-the-religious-clauses-in-philippine-constitution/. 40 Everson vs. Boars of Education, 30 U.S. 1, 39 (1947) ; The 1987 Consitution of The Republic of the Philippines: A Commentary, Bernas, S. J. page 345. 41 100% UP Law, UP Bar Operations 2008, page 63.

25

Applying the Lemon Test42, if any of the following prongs

is violated, the government’s action is deemed unconstitutional:

1. The government's action must have a secular legislative

purpose; (Purpose Prong)

2. The government's action must not have the primary

effect of either advancing or inhibiting religion; (Effect Prong)

3. The government's action must not result in an

"excessive government entanglement" with religion. (Entanglement

Prong).

Applying this test in the present case:

1. Jaro Plaza, being a public property was closed through

Regulation Ordinance 2014-014 passed by the Sangguniang

Panlungsod of the City of Iloilo, and used from January 15 to

February 3, 2014 in commemoration of the Jaro Fiesta, a Roman

Catholic festivity. However, such government’s action of closing

the Jaro Plaza is for the purpose of converting it to commercial

spaces for the Jaro Agro- Industrial and Charity Fair. Such

spaces will be rented out to willing lessee who wants to sell

goods, may it be clothing, food, toys, ornamental plants,

flowers, wooden furniture, etc. Rental fee and entrance fee will

be collected from lessees and customers who enter the plaza

during the duration of the fare. These fees will be used by the

government for enhancement and development of Jaro and Iloilo

City as well.

Nothing in the Ordinance or in the Executive Order provides

that such will be closed in order to be used as a place of

42 Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 1971 U.S. ; Retrieved March 15, 2014,from: http://en.wikipedia.org/wiki/Lemon_v_Kurtzman.

26

worship nor to cater or in support of the Roman Catholic

Religion.

Thus, such action is purely for a secular legislative

purpose.

2. It was for a fact that the Jaro Plaza was not closed and

used for the benefit of the Roman Catholic Church. Nor were money

derived from the rental fee and entrance fee given to that

Church. The only purpose in closing such plaza few days before

the Jaro Fiesta was to advertise Jaro and to attract more

tourists in Iloilo City. Considering that during that period,

lots of devotees of Nuestra Senora de la Candelaria visit the

Jaro Cathedral and the adjacent vicinities. The government merely

took advantage of one of the most celebrated events in the City

of Iloilo (Feast of Nuestra Señora de la Candelaria) to earn

funds for their proposed projects and to give publicity to Iloilo

City and as well to its people. Thus, it does not have any

primary effect of either advancing or inhibiting a religion.

3. It must be noted that the Jaro Agro- Industrial and

Charity Fair established in the Jaro Plaza is separate and

distinct from the Feast of Nuestra Señora de la Candelaria. Such

was not established for the Church specifically the Roman

Catholic Church but merely to cater the needs of the public

during such festivity. Providing the closure of Jaro Plaza was

not in aid of a religious event, nor are the lessees selling

religious items in support of the said event.

It is a fact that the government only provided commercial

spaces, earn rental fees and collects entrance fees, nothing more

and nothing less. Also, expenses incurred from such activity such

27

as for the maintenance of cleanliness were taken from the income

earned from such activity and not from public funds already

appropriated for public purposes.

With this, there exists no excessive government

entanglement. The government merely closed the Plaza, converted

it to commercial spaces for a span of time, earn, and collect

rental fee as a means of taking advantage of the aforesaid

religious event. The decision of closing such belong to the City

Officials or the Sangguniang Panlungsod and the Roman Catholic

Church nor any priest has exercised an influence for such action.

Therefore, applying the three prongs mentioned in the Lemon

Test, the government’s action of closing the Jaro Plaza in

commemoration of the Jaro Fiesta or the Feast of Nuestra Señora

de la Candelaria is valid. Citing U.S. jurisprudence, it 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. It

neither advance nor inhibit Roman Catholic religion, and it did

not result to any excessive government entanglement.

Furthermore, the benefits that may arise in favour of the

Catholic Church is merely incidental, being the primary purpose

from which plaza was turned into commercial spaces for a span of

time will directly benefit the local government as well as the

public. It must be noted that if the Catholic Church received

benefits from such closure, such will only be subsidiary as it

was neither directly given, nor it was the intention of the

government to do so, but it merely arises from the circumstances

that results from such constitutional actions.

28

Also, such earned funds from entrance fees and rental fees

if properly accounted for will be used by the local government

for the development and projects proposed for Jaro and to Iloilo

City as well and will not be given to the Roman Catholic Church.

Conclusion

As evidenced by the findings and arguments in the preceding

section, it was determined that the closure of the Jaro Plaza

does not violate the non- establishment clause of the

Constitution. Such action of the government of closing the Jaro

Plaza which is claimed to be in support of the Feast of Nuestra

Senora de la Candelaria is constitutional and therefore, valid.

As the purpose of the closure of the Jaro Plaza was evidently to

focus attention not to the Patronal Festivity but on the Jaro

Agro-Industrial and Charity Fair and the idea to attract the

tourists to Iloilo City and not primarily to publicize or support

the religious event. The government merely took advantage of the

religious event to earn additional income.

It is obvious that while the closure and use of the Jaro

Plaza in question may be said to be inseparably linked with an

event of a religious character, the resulting propaganda, if any,

received by the Roman Catholic Church, was not the aim and

purpose of the Government. Further, the Government should not be

embarrassed in its activities simply because of incidental

results, more or less religious in character, if the purpose had

in view is one which could legitimately be undertaken by

appropriate legislation. The main purpose should not be

29

frustrated by its subordination to mere incidental results not

contemplated.43

Furthermore, not every 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.44 Thus, it can be held that the

provision does not inhibit the use of public property for

religious purposes when the religious character of such use is

merely incidental to a temporary use which is available

indiscriminately to the public in general.

Therefore, the closure of the Jaro Plaza in commemoration of

the Jaro Fiesta or the Feast of Nuestra Señora de la Candelaria

does not violate the non-establishment Clause set forth in

Article III, section 5 of the 1987 Philippine Constitution.

Recommendations

Since not all governmental actions with a tint of religious

purpose is violative of the Constitution, the researcher

recommends that the State or the Government pursue projects and

programs that will foster the relationship of the Church and

State without breaking the wall which separates them.

43 Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121;44 law. Ed.,168)Retrieved March 15, 2014, from:http://wiki.lawcenter.ph/index.php?title=Religion_clauses#Establishment_Clause. 44 Garces vs. Estenzo ,104 Scra 510; G.R. L-53487; 25 May 1981; Retrieved March 16,2014, from:http://cofferette.blogspot.com/2009/02/garces vs-estenzo-104-scra-510-gr-l.html.

30

Also, the City Officials provide better projects showcasing

the products, talents and pride of the Ilonggos for the

betterment and development of Iloilo City.

However, it must be noted that the income earned from these

programs or events should be used for the purpose for which it is

intended. Persons responsible must render accounting to the total

income earned and the expenses incurred. The Association of the

Barangay Captains (ABC) of Jaro should also be transparent enough

to pinpoint accountability and responsibility.