Valino v Adriano & Estrada v Escritor

8/10/2019 Valino v Adriano & Estrada v Escritor

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A legal wifes right over her husbands dead body: Valino vs Adriano (GR 182894 22A!ril 2"14#

Even if a deceased person has validly expressed his wish to be buried at the mausoleum of his paramoursfamily, the deceaseds legal wife has the legal right to bury the deceased elsewhere, because the deceasedswishes are compulsory only with respect to the form of his funeral this was arguably the gist of theSupreme Courts En Banc ecision !spea"ing through #ustice #ose Catral $endo%a& in the case of Valino vs

Adriano !'( )*+*-, ++ .pril +/)-&, with a dissent by #ustice $arvic $ario 0ictor 12 3eonen !4oined by #ustice(oberto .2 .bad&2

5he fa$tsof the case as stated in the ecision are as follows6

.tty2 .driano .driano (Atty. Adriano), a partner in the 7elae% .driano and 'regorio 3aw 8ffice, marriedrespondent (osario .driano(Rosario) on 9ovember ):, )::2 5he couple had two !+& sons, 1lorante and(uben .driano; three !ears later, .tty2 .driano courted 0alino, one of his clients, until they decided to live togetheras husband and wife2 espite such arrangement, he continued to provide financial support to (osario and theirchildren (respondents)2 ?n )+, .tty2 .driano died of acute emphysema2 .t that time, (osario was in the @nitedStates spending Christmas with her children2 .s none of the family members was around, 0alino too" it uponherself to shoulder the funeral and burial expenses for .tty2 .driano2 When Rosario learned about the death of

her husband, she immediately called Valino and requested that she delay the interment for a few days but herreAuest was not heeded2 5he remains of .tty2 .driano were then interred at the mausoleum of the family of0alino at the $anila $emorial 7ar"2 (espondents were not able to attend the interment2 Claiming that theywere deprived of the chance to view the remains of .tty2 .driano before he was buried and that his burial at the$anila $emorial 7ar" was contrary to his wishes, respondents commenced suit against 0alino praying thatthey be indemnified for actual, moral and exemplary damages and attorneys fees and that the remains of .tty2.driano be exhumed and transferred to the family plot at the oly Cross $emorial Cemetery in 9ovaliches,ue%on City2 ?n her defense, 0alino countered that (osario and .tty2 .driano had been separated for more thantwenty !+/& years before he courted her2 0alino claimed that throughout the time they were together, he hadintroduced her to his friends and associates as his wife2 .lthough they were living together, Valino admitted thathe never forgot his obligation to support the respondents. She contended that, unli"e (osario, she too" goodcare of .tty2 .driano and paid for all his medical expenses when he got seriously ill2 She also claimed thatdespite "nowing that .tty2 .driano was in a coma and dying, (osario still left for the @nited States2 .ccording to0alino, it was .tty2 .drianos last wish that his remains be interred in the 0alino family mausoleum at the $anila

$emorial 7ar"2 0alino further claimed that she had suffered damages as result of the suit brought byrespondents2 5hus, she prayed that she be awarded moral and exemplary damages and attorneys fees2

5he (5C dismissed the complaint of respondents for lac" of merit as well as the counterclaim of 0alino after itfound them to have not been sufficiently proven2

xxx8n appeal, the C. reversed and set aside the (5C decision and directed 0alino to have the remains of .tty2.driano exhumed at the expense of respondents2 ?t li"ewise directed respondents, at their expense, to transfer,transport and inter the remains of the decedent in the family plot at the oly Cross $emorial 7ar" in9ovaliches, ue%on City2

.ccording to the Court, the lone legal issue in this petition is who between (osario and 0alino is entitled to theremains of .tty2 .driano2 ?n affirming the Court of .ppeals decision, the Supreme Court reasoned as follows6

1irst, the Supreme Court held that it is clear that the law gives the right and duty to ma"e funeral arrangementsto (osario, she being the surviving legal wife of .tty2 .driano2 uote6

.rticle


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and sisters, the oldest shall be preferred2 ?n case of ascendants, the paternal shall have a better right2DEmphases suppliedF

Art% 1992 Ghenever two or more persons are obliged to give support, the liability shall devolve upon thefollowing persons in the order herein provided6!)& 5he spouse;!+& 5he descendants in the nearest degree;

!


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Code, unless expressly providing to the contrary as in .rticle )--, when referring to a -s!ouse. $onte)!latea lawfully wedded s!ouse% 7etitioner vis=a=vis 0italiana was not a lawfully=wedded spouse to her; in fact, hewas not legally capacitated to marry her in her lifetime2 D*FD?d2 at )):*=)):FDEmphases suppliedF.s applied to this case, it is clear that the law gives the right and duty to ma"e funeral arrangements to (osario,she being the surviving legal wife of .tty2 .driano2 L

5he Supreme Court elaborated on what constitutes a valid waiver on part of the legal wife to ma"e the

husbands funeral arrangement, emphasi%ing that long de facto separation cannotper seconstitute a validwaiver2 uote6

L 5he fact that she was living separately from her husband and was in the @nited States when he died has nocontrolling significance2 5o say that (osario had, in effect, waived or renounced, expressly or impliedly, her rightand duty to ma"e arrangements for the funeral of her deceased husband is baseless2 5he right and duty toma"e funeral arrangements, li"e any other right, will not be $onsidered as having been waived orrenoun$ed e$e!t u!on $lear and satisfa$tory !roof of $ondu$t indi$ative of a free and voluntary intentto that end2DFDSee 'arawi 'arantao eneral ospital, &nc. v. $A , -/+ 7hil2


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in his final moments and gave him a proper burial2 .s such, there is a presumption that she would be in thebest position to relay his final wishes2

xxx5he ponencia also noted there was JanimosityK between .tty2 .driano and respondents when he was still alive2e and his legal spouse, respondent (osario, have been separated=in=fact for more than thirty !


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counter to the wishes of his family2 ?t does not only violate their right provided by law, but it also disrespects thefamily because the remains of the patriarch are buried in the family plot of his live=in partner2

ith res!e$t to (1# 3eonen disagreed arguing that:

? am of the opinion that .rticle


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A7 "21'1 August 4 2""&

;A


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6@ A@, 7hilippine Branch2

Same marital arrangement is recogni%ed as a binding tie before J#E80.K 'od and before all persons to be held toand honored in full accord with the principles of 'ods Gord2

xxx xxx xxx

@ndersigned submits to the 4ust, humane and fair discretion of the Court with verification from the G.5C 58GE(B?B3E and 5(.C5 S8C?E5>, 7hilippine Branch 2 2 2 to which undersigned believes to be a high authority in relation toher case2B1&C

eputy Court .dministrator Christopher 82 3oc" recommended that the case be referred to Executive #udgeBonifacio San% $aceda, (5C Branch +::, 3as 7iRas City for investigation, report and recommendation2 ?n the courseof #udge $acedas investigation, Escritor again testified that her congregation allows her con4ugal arrangement withuilapio and it does not consider it immoral2 She offered to supply the investigating 4udge some clippings whichexplain the basis of her congregations belief and practice regarding her con4ugal arrangement2 Escritor started livingwith uilapio twenty years ago when her husband was still alive but living with another woman2 She met this womanwho confirmed to her that she was living with her !Escritors& husband2B14C

'regorio Sala%ar, a member of the #ehovahs Gitnesses since )*:, also testified2 e had been a presidingminister since )) and in such capacity is aware of the rules and regulations of their congregation2 e explained theimport of and procedure for executing a Jeclaration of 7ledging 1aithfulnessK, vi#6

6 9ow, insofar as the pre=marital relationship is concern !sic&, can you cite some particular rules andregulations in your congregationT

.6 Gell, we of course, tal" to the persons with regards !sic& to all the parties involved and then wereAuest them to execute a 7ublic eclaration of 7ledge of faithfulness2

6 Ghat is that documentT
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.6 eclaration of 7ledge of faithfulness2

6 Ghat are the relations of the document eclaration of 7ledge of faithfulness, who are suppose !sic& toexecute this documentT

.6 5his must be signed, the document must be signed by the elders of the congregation; the couple, whois a member !sic& of the congregation, bapti%ed member and true member of the congregation2

6 Ghat standard rules and regulations do you have in relation with this documentT

.6 .ctually, sir, the signing of that document, ah, with the couple has consent to marital relationship !sic&gives the Christian Congregation view that the couple has put themselves on record before 'od andman that they are faithful to each other2 .s if that relation is validated by 'od2

6 1rom your explanation, $inister, do you consider it a pledge or a document between the parties, whoare members of the congregationT

.6 ?t is a pledge and a document2 ?t is a declaration, pledge of a !sic& pledge of faithfulness2

6 .nd what does pledge mean to youT

.6 ?t means to me that they have contracted, let us say, ? am the one who contracted with the oppositemember of my congregation, opposite sex, and that this document will give us the right to a maritalrelationship2

6 So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you toenter a marriageT

.6 >es, Sir2

6 But it does not necessarily mean that the parties, cohabiting or living under the same roofT

.6 Gell, the 7ledge of faithfulness document is !sic& already approved as to the marital relationship2

6 o you mean to say, $inister, by executing this document the contracting parties have the right tocohabitT

.6 Can ? sir, cite, what the Bible says, the basis of that 7ledge of 1aithfulness as we Christiansfollow2 5he basis is herein stated in the Boo" of $atthew, Chapter 1ive, 0erse 5wenty=two2 So, inthat verse of the Bible, #esus said Jthat everyone divorcing his wife, except on account of fornication,ma"es her a sub4ect for adultery, and whoever marries a divorced woman commits adultery2B1'C

Escritor and uilapio transferred to Sala%ars Congregation, the .lman%a Congregation in 3as 7iRas, in $ay+//)2 5he declarations having been executed in .timonan, ue%on in )), Sala%ar had no personal "nowledge ofthe personal circumstances of Escritor and uilapio when they executed their declarations2 owever, when the twotransferred to .lman%a, Sala%ar inAuired about their status from the .timonan Congregation, gathered comments ofthe elders therein, and reAuested a copy of their declarations2 5he .lman%a Congregation assumed that the personalcircumstances of the couple had been considered by the .timonan Congregation when they executed theirdeclarations2

Escritor and uilapios declarations are recorded in the Gatch 5ower Central office2 5hey were executed in theusual and approved form prescribed by the Gatch 5ower Bible and 5ract Society which was lifted from the article,J$aintaining $arriage in onor Before 'od and $en,K B1Cin the $arch ):, )II issue of the Gatch 5ower maga%ine,entitled he Watchtower2

5he declaration reAuires the approval of the elders of the #ehovahs Gitnesses congregation and is bindingwithin the congregation all over the world except in countries where divorce is allowed2 5he #ehovahs congregation

reAuires that at the time the declarations are executed, the couple cannot secure the civil authorities approval of themarital relationship because of legal impediments2 ?t is thus standard practice of the congregation to chec" thecouples marital status before giving imprimatur to the con4ugal arrangement2 5he execution of the declaration findsscriptural basis in $atthew :6


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widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry2 5hus,their declarations remain valid2 8nce all legal impediments for both are lifted, the couple can already register theirmarriage with the civil authorities and the validity of the declarations ceases2 5he elders in the congregations canthen solemni%e their marriage as authori%ed by 7hilippine law2 ?n sum, therefore, insofar as the congregation isconcerned, there is nothing immoral about the con4ugal arrangement between Escritor and uilapio and they remainmembers in good standing in the congregation2B10C

Salvador (eyes, a minister at the 'eneral de 3eon, 0alen%uela City Congregation of the #ehovahs Gitnessessince )I- and member of the headAuarters of the Gatch 5ower Bible and 5ract Society of the 7hilippines, ?nc2,presented the original copy of the maga%ine article entitled, J$aintaining $arriage Before 'od and $enK to whichEscritor and $inister Sala%ar referred in their testimonies2 5he article appeared in the $arch ):, )II issue ofthe Watchtowermaga%ine published in 7ennsylvania, @2S2.2 1elix S2 1a4ardo, 7resident of the Gatch 5ower Bibleand 5ract Society of the 7hilippines, ?nc2, authori%ed (eyes to represent him in authenticating the article2 5he articleis distributed to the #ehovahs Gitnesses congregations which also distribute them to the public2B18C

5he parties submitted their respective memoranda to the investigating 4udge2 Both stated that the issue forresolution is whether or not the relationship between respondent Escritor and uilapio is valid and binding in theirown religious congregation, the #ehovahs Gitnesses2 Complainant Estrada adds however, that the effect of therelationship to Escritors administrative liability must li"ewise be determined2 Estrada argued, through counsel, thatthe eclaration of 7ledging 1aithfulness recogni%es the supremacy of the Jproper public authoritiesK such that shebound herself Jto see" means to 2 2 2 legali%e their union2K 5hus, even assumingarguendo that the declaration is validand binding in her congregation, it is binding only to her co=members in the congregation and serves only the internalpurpose of displaying to the rest of the congregation that she and her mate are a respectable and morally uprightcouple2 5heir religious belief and practice, however, cannot override the norms of conduct reAuired by law forgovernment employees2 5o rule otherwise would create a dangerous precedent as those who cannot legali%e theirlive=in relationship can simply 4oin the #ehovahs Gitnesses congregation and use their religion as a defense againstlegal liability2B19C

8n the other hand, respondent Escritor reiterates the validity of her con4ugal arrangement with uilapio basedon the belief and practice of her religion, the #ehovahs Gitnesses2 She Auoted portions of the maga%ine articleentitled, J$aintaining $arriage Before 'od and $en,K in her memorandum signed by herself, vi#6

5he eclaration of 7ledging of 1aithfulness !Exhibits J)K and J+K& executed by the respondent and her mate greatlyaffect the administrative liability of respondent2 #ehovahs Gitnesses admit and recogni%e !sic& the supremacy of theproper public authorities in the marriage arrangement2 owever, it is helpful to understand the relative nature ofCaesars authority regarding marriage2 1rom country to country, marriage and divorce legislation presents amultitude of different angles and aspects2 (ather than becoming entangled in a confusion of technicalities, the

Christian, or the one desiring to become a disciple of 'ods Son, can be guided by basic Scriptural principles thathold true in all cases2

'ods view is of first concern2 So, first of all the person must consider whether that ones present relationship, or therelationship into which he or she contemplates entering, is one that could meet with 'ods approval, or whether initself, it violates the standards of 'ods Gord2 5a"e, for example, the situation where a man lives with a wife but alsospends time living with another woman as a concubine2 .s long as such a state of concubinage prevails, therelationship of the second woman can never be harmoni%ed with Christian principles, nor could any declaration onthe part of the woman or the man ma"e it so2 5he only right course is cessation of the relationship2 Similarly with anincestuous relationship with a member of ones immediate family, or a homosexual relationship or other such situationcondemned by 'ods Gord2 ?t is not the lac" of any legal validation that ma"es such relationships unacceptable; theyare in themselves unscriptural and hence, immoral2 ence, a person involved in such a situation could not ma"e any"ind of Jeclaration of 1aithfulness,K since it would have no merit in 'ods eyes2

?f the relationship is such that it can have 'ods approval, then, a second principle to consider is that one should doall one can to establish the honorableness of ones marital union in the eyes of all2 !eb2 )


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declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union ashonorable while the individual continues conscientiously to wor" out the legal aspects to the best of his ability2

Oeeping in mind the basic principles presented, the respondent as a $inister of #ehovah 'od, should be able toapproach the matter in a balanced way, neither underestimating nor overestimating the validation offered by thepolitical state2 She always gives primary concern to 'ods view of the union2 .long with this, every effort should bemade to set a fine example of faithfulness and devotion to ones mate, thus, "eeping the marriage Jhonorable among

all2K Such course will bring 'ods blessing and result to the honor and praise of the author of marriage, #ehovah 'od2!) Cor2 )/6


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xxx xxx xxx

!:& isgraceful and immoral conduct; xxx2

9ot represented by counsel, respondent, in laymans terms, invo"es the religious beliefs and practices andmoral standards of her religion, the #ehovahs Gitnesses, in asserting that her con4ugal arrangement with a man nother legal husband does not constitute disgraceful and immoral conduct for which she should be held administrativelyliable2 Ghile not articulated by respondent, she invo"es religious freedom under .rticle ???, Section : of theConstitution, which provides, vi#6

Sec2 :2 9o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof2 5hefree exercise and en4oyment of religious profession and worship, without discrimination or preference, shall forever beallowed2 9o religious test shall be reAuired for the exercise of civil or political rights2

5V% Dld orld Ante$edents of the A)eri$an Religion


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$oses of the Bible led not li"e the ancient "ings2 5he latter used religion as an engine to advance the purposesof the state2 ammurabi unified $esopotamia and established Babylon as its capital by elevating its city=god to aprimary position over the previous reigning gods2B&'C$oses, on the other hand, capitali%ed on the natural yearnings ofthe ebrew slaves for freedom and independence to further 'ods purposes2 3iberation and Exodus were preludesto Sinai and the receipt of the ivine 3aw2 5he conAuest of Canaan was a preparation for the building of the templeand the full worship of 'od2B&C

@pon the monotheism of $oses was the theocracy of ?srael founded2 5his monotheism, more than anythingelse, charted not only the future of religion in western civili%ation, but eAually, the future of the relationship betweenreligion and state in the west2 5his fact is ac"nowledged by many writers, among whom is 9orthcott who pointedout, vi#6

>istori$ally it was the >ebrew and


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Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathensacrifices were forbidden2

he favors granted to


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the duty of seeing to it that no person was buried in a shroud made of any substance other than wool2 B'C@nderEli%abeth, supremacy of the crown over the church was complete6 ecclesiastical offices were regulated by herproclamations, recusants were fined and imprisoned, #esuits and proselyti%ing priests were put to death for hightreason, the thirty=nine .rticles of the Church of England were adopted and English 7rotestantism attained its presentdoctrinal status2B'0CEli%abeth was to be recogni%ed as Jthe only Supreme 'overnor of this realm 2 2 2 as well in allspiritual or ecclesiastical things or causes as temporal2K She and her successors were vested, in their dominions, withJall manner of 4urisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or

ecclesiastical 4urisdiction2KB'8C

3ater, however, Cromwell established the $onstitution in 140which granted fullliberty to all rotestant se$ts but denied toleration to


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attend government favored churches, some of these settlers themselves transplanted into .merican soil theoppressive practices they escaped from2 5he charters granted by the English Crown to the individuals andcompanies designated to ma"e the laws which would control the destinies of the colonials authori%ed them to erectreligious establishments, which all, whether believers or not, were reAuired to support or attend2 B'C.t one time, six ofthe colonies established a state religion2 8ther colonies, however, such as (hode ?sland and elaware tolerated ahigh degree of religious diversity2 Still others, which originally tolerated only a single religion, eventually extendedsupport to several different faiths2BC

his was the state of the A)eri$an $olonies when the uniEue A)eri$an e!eri)ent of se!aration of$hur$h and state $a)e about% 5he birth of the experiment cannot be attributed to a single cause or event2 (ather,a number of interdependent practical and ideological factors contributed in bringing it forth2 .mong these were theJEnglish .ct of 5oleration of )*, the multiplicity of sects, the lac" of church affiliation on the part of most .mericans,the rise of commercial intercourse, the exigencies of the (evolutionary Gar, the Gilliams=7enn tradition and thesuccess of their experiments, the writings of 3oc"e, the social contract theory, the 'reat .wa"ening, and the influenceof European rationalism and deism2KB0CEach of these factors shall be briefly discussed2

;irst the !ra$ti$al fa$tors% Englands policy of opening the gates of the .merican colonies to different faithsresulted in the multiplicity of sects in the colonies2 Gith an Erastian 4ustification, English lords chose to foregoprotecting what was considered to be the true and eternal church of a particular time in order to encourage trade andcommerce2 5he colonies were large financial investments which would be profitable only if people would settlethere2 ?t would be difficult to engage in trade with persons one see"s to destroy for religious belief, thus tolerancewas a necessity2 5his tended to distract the colonies from their preoccupations over their religion and itsexclusiveness, encouraging them Jto thin" less of the Church and more of the State and of commerce2K B8C5hediversity brought about by the colonies open gates encouraged religious freedom and non=establishment in severalways2 1irst, as there were too many dissenting sects to abolish, there was no alternative but to learn to livetogether2 Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusiverightness of ones religion, which impels persecution for the sa"e of ones religion, waned2 1inally, because of thegreat diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could notsurvive2B9C

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents2 8nly aboutfour percent of the entire population of the country had a church affiliation at the time the republic was founded2B0"C5his might be attributed to the drifting to the .merican colonies of the s"epticism that characteri%ed EuropeanEnlightenment2B01CEconomic considerations might have also been a factor2 5he individualism of the .mericancolonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as apersonal non=institutional matter2 5he prevalence of lac" of church affiliation contributed to religious liberty anddisestablishment as persons who were not connected with any church were not li"ely to persecute others for similarindependence nor accede to compulsory taxation to support a church to which they did not belong2B02C

owever, for those who were affiliated to churches, the colonial policy regarding their worship generally followedthe tenor of the English .ct of 5oleration of )*2 ?n England, this .ct conferred on 7rotestant dissenters the right tohold public services sub4ect to registration of their ministers and places of worship2 B0&C.lthough the toleration accordedto 7rotestant dissenters who Aualified under its terms was only a modest advance in religious freedom, itnevertheless was of some influence to the .merican experiment2B04CEven then, for practical considerations,concessions had to be made to other dissenting churches to ensure their cooperation in the Gar of ?ndependencewhich thus had a unifying effect on the colonies2

@et the ideologi$al fa$tors% 1irst, the 'reat .wa"ening in mid=)*thcentury, an evangelical religious revivaloriginating in 9ew England, caused a brea" with formal church religion and a resistance to coercion by establishedchurches2 5his movement emphasi%ed an emotional, personal religion that appealed directly to the individual, puttingemphasis on the rights and duties of the individual conscience and its answerability exclusively to 'od2 5hus,although they had no Auarrel with orthodox Christian theology as in fact they were fundamentalists, this groupbecame staunch advocates of separation of church and state2B0'C

hen there was the illia)senn tradition% (oger Gilliams was the founder of the colony of (hode ?slandwhere he established a community of Baptists, ua"ers and other nonconformists2 ?n this colony, religious freedomwas not based on practical considerations but on the concept of mutual independence of religion and government2 ?n)


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have transferred to Civil .uthority2B08CGilliams


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5he first )a/or ste!towards separation in 0irginia was the adoption of the following provision in the Bill of(ights of the states first constitution6

5hat religion, or the duty which we owe to our Creator, and the manner of discharging it, $an be dire$ted only byreason and $onvi$tion not by for$e or violen$e and therefore all )en are eEually entitled to the freeeer$ise of religion a$$ording to the di$tates of $ons$ien$e and that it is the mutual duty of all to practiceChristian forbearance, love, and charity towards each other2B92C!emphasis supplied&

5he adoption of the Bill of (ights signified the beginning of the end of establishment2 Baptists, 7resbyterians and3utherans flooded the first legislative assembly with petitions for abolition of establishment2 Ghile the ma4ority of thepopulation were dissenters, a ma4ority of the legislature were churchmen2 5he legislature compromised and enacteda bill in )II abolishing the more oppressive features of establishment and granting exemptions to the dissenters, butnot guaranteeing separation2 ?t repealed the laws punishing heresy and absence from worship and reAuiring thedissenters to contribute to the support of the establishment2B9&CBut the dissenters were not satisfied; they not onlywanted abolition of support for the establishment, they opposed the compulsory support of their own religion asothers2 .s members of the established church would not allow that only they would pay taxes while the rest did not,the legislature enacted in )II a bill ma"ing permanent the establishments loss of its exclusive status and its powerto tax its members; but those who voted for it did so in the hope that a general assessment bill would bepassed2 Githout the latter, the establishment would not survive2 5hus, a bill was introduced in )II reAuiring everyperson to enroll his name with the county cler" and indicate which Jsociety for the purpose of (eligious GorshipK hewished to support2 8n the basis of this list, collections were to be made by the sheriff and turned over to the

clergymen and teachers designated by the religious congregation2 5he assessment of any person who failed toenroll in any society was to be divided proportionately among the societies2B94C5he bill evo"ed strong opposition2

?n )I*-, another bill, entitled JBill Establishing a 7rovision for 5eachers of the Christian (eligionK was introducedreAuiring all persons Jto pay a moderate tax or contribution annually for the support of the Christian religion, or ofsome Christian church, denomination or communion of Christians, or for some form of Christian worship2KB9'C5hisli"ewise aroused the same opposition to the )II bill2 5he most telling blow against the )I*- bill was themonumental J$emorial and (emonstrance against (eligious .ssessmentsK written by $adison and widely distributedbefore the reconvening of legislature in the fall of )I*:2B9C?t stressed natural rights the govern)ents la$F of

/urisdi$tion over the do)ain of religion and the so$ial $ontra$t as the ideologi$al basis of se!arationwhilealso citing practical considerations such as loss of population through migration2 e wrote, vi#6

e$ause we hold it for a ,funda)ental and undeniable truth that religion or the duty whi$h we owe to our$reatorand the manner of discharging it, can be directed only by reason and conviction, not by force orviolence2 he religion then of every )an )ust be left to the $onvi$tion and $ons$ien$e of every )an and it

is the right of every )an to eer$ise it as these )ay di$tate% his right is in its nature an unalienableright% ?t is unalienable, because the opinions of men, depending only on the evidence contemplated in their ownminds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is aduty towards the creator2 5t is the duty of every )an to render the $reator su$h ho)age and su$h only as hebelieves to be a$$e!table to hi) this duty is !re$edent both in order of ti)e and degree of obligation to the$lai)s of $ivil so$iety% efore any )an $an be $onsidered as a )e)ber of $ivil so$iety he )ust be$onsidered as a sub/e$t of the governor of the universe and if a member of civil society, who enters into anysubordinate association, must always do it with a reservation of his duty to the general authority, much more mustevery man who becomes a member of any particular civil society do it with the saving his allegiance to the universalsovereign2B90C!emphases supplied&

$adison articulated in the $emorial the widely held beliefs in )I*: as indicated by the great number of signaturesappended to the $emorial2 5he assessment bill was speedily defeated2

5a"ing advantage of the situation, $adison called up a much earlier )II bill of #efferson which had not been

voted on, the JBill for Establishing (eligious 1reedomK, and it was finally passed in #anuary )I*2 ?t provided, vi#6

ell aware that Al)ighty God hath $reated the )ind freethat all attempts to influence it by temporalpunishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and area departure from the plan of the oly .uthor of our religion, who being 3ord both of body and mind, yet chose not topropagate it by coercions on either, as was in his .lmighty power to do;

xxx xxx xxx
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Be it therefore enacted by the 'eneral .ssembly2 5hat no man shall be compelled to freAuent or support anyreligious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his bodyor goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all )en shall be free to!rofess and by argu)ent to )aintain their o!inions in )atters of religion and that the same shall in no wisediminish, enlarge or affect their civil capacities2B98C!emphases supplied&

5his statute forbade any "ind of taxation in support of religion and effectually ended any thought of a general or

particular establishment in 0irginia2B99CBut the passage of this law was obtained not only because of the influence ofthe great leaders in 0irginia but also because of substantial popular support coming mainly from the two greatdissenting sects, namely the 7resbyterians and the Baptists2 5he former were never established in 0irginia and anunderprivileged minority of the population2 5his made them anxious to pull down the existing state church as theyreali%ed that it was impossible for them to be elevated to that privileged position2 .part from these expedientialconsiderations, however, many of the 7resbyterians were sincere advocates of separation B1""Cgrounded on rational,secular arguments and to the language of natural religion2B1"1C?nfluenced by (oger Gilliams, the Baptists, on the otherhand, assumed that religion was essentially a matter of concern of the individual and his 'od, i2e2, sub4ective, spiritualand supernatural, having no relation with the social order2B1"2C5o them, the oly 'host was sufficient to maintain anddirect the Church without governmental assistance and state=supported religion was contrary ti the spirit of the'ospel2B1"&C5hus, separation was necessary2B1"4C#effersons religious freedom statute was a )ilestonein the history ofreligious freedom2 5he @nited States Supreme Court has not 4ust once ac"nowledged that the !rovisions of the;irst A)end)ent of the =%*%


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houses for prisoners, sports facilities, theme par"s, publishing houses and mass media programs2 ?n these activities,religious organi%ations complement and compete with commercial enterprises, thus blurring the line between manytypes of activities underta"en by religious groups and secular activities2 Churches have also concerned themselveswith social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war andpeace, economic 4ustice, and human life, or in ringing affirmations for racial eAuality on religiousfoundations2 ?nevitably, these developments have brought about substantial entanglement of religion andgovernment2 3i"ewise, the growth in population density, mobility and diversity has significantly changed the

environment in which religious organi%ations and activities exist and the laws affecting them are made2 ?t is no longereasy for individuals to live solely among their own "ind or to shelter their children from exposure to competingvalues2 5he result is disagreement over what laws should reAuire, permit or prohibit; B11&Cand agreement that if therights of believers as well as non=believers are all to be respected and given their 4ust due, a rigid, woodeninterpretation of the religion clauses that is blind to societal and political realities must be avoided2B114C

(eligion cases arise from different circumstances2 5he more obvious ones arise from a government actionwhich purposely aids or inhibits religion2 5hese cases are easier to resolve as, in general, these actions are plainlyunconstitutional2 Still, this "ind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion2 B11'C5hemore difficult religion clause cases involve government action with a secular purpose and general applicability whichincidentally or inadvertently aids or burdens religious exercise2 ?n 1ree Exercise Clause cases, these governmentactions are referred to as those with Jburdensome effectK on religious exercise even if the government action is notreligiously motivated2B11C?deally, the legislature would recogni%e the religions and their practices and would considerthem, when practical, in enacting laws of general application2 But when the legislature fails to do so, religions that arethreatened and burdened turn to the courts for protection2 B110C$ost of these free exercise claims brought to the Court

are for exemption, not invalidation of the facially neutral law that has a JburdensomeK effect2

B118C

Gith the change in political and social context and the increasing inadvertent collisions between law andreligious exercise, the definition of religion for purposes of interpreting the religion clauses has also been)odified tosuit $urrent realities% efining religion is a difficult tas" for even theologians, philosophers and moralists cannotagree on a comprehensive definition2 9evertheless, courts must define religion for constitutional and other legalpurposes2B119C?t was in the )*/ case of ?avis v% easonB12"Cthat the @nited States Supreme Court first hado$$asion to define religion, vi#6

he ter) ,religion has referen$e to ones views of his relations to his


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sin$ere and )eaningful o$$u!ies a !la$e in the life of its !ossessor !arallel to the orthodo belief inGod%!emphasis supplied&

5he Court was convinced that Seeger, 7eter and the others were conscientious ob4ectors possessed of such religiousbelief and training2

1ederal and state courts have e!anded the definition of religion in *eegerto include even non=theistic

beliefs such as 5aoism or en Buddhism2 ?t has been proposed that basically, a creed must meet four criteria toAualify as religion under the 1irst .mendment2 ;irst, there must be belief in 'od or some parallel belief that occupiesa central place in the believers life2 *e$ond, the religion must involve a moral code transcending individual belief,i2e2, it cannot be purely sub4ective2 hird, a demonstrable sincerity in belief is necessary, but the court must notinAuire into the truth or reasonableness of the belief2B120C;ourth, there must be some associational ties,B128Calthoughthere is also a view that religious beliefs held by a single person rather than being part of the teachings of any "ind ofgroup or sect are entitled to the protection of the 1ree Exercise Clause2B129C

efining religion is only the beginning of the difficult tas" of deciding religion clause cases2 >aving hurdled theissue of definition the $ourt then has to draw lines to deter)ine what is or is not !er)issible under thereligion $lauses% ?n this tas", the !ur!oseof the clauses is the yardstic"2 5heir purpose is singular; they are twosides of the same coin2B1&"C?n devoting two clauses to religion, the 1ounders were stating not two opposing thoughtsthat would cancel each other out, but two complementary thoughts that apply in different ways in differentcircumstances2B1&1C5he purpose of the religion clauses = both in the restriction it imposes on the power of thegovernment to interfere with the free exercise of religion and the limitation on the power of government to establish,

aid, and support religion = is the !rote$tion and !ro)otion of religious liberty2B1&2C

5he end, the goal, and therationale of the religion clauses is this liberty2B1&&CBoth clauses were adopted to prevent government imposition ofreligious orthodoxy; the great evil against which they are directed is government=induced homogeneity2 B1&4C5he ;ree6er$ise


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the failure to practice polygamy by male members of his religion when circumstances would permit would bepunished with damnation in the life to come2 (eynolds act of contracting a second marriage violated Section :


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trials are foreign to the Constitution2 $en may believe what they cannot prove2 5hey may not be put to the proof oftheir religious doctrines or beliefs2K

@et to belief whi$h en/oys virtually absolute !rote$tion religious s!ee$h and e!ressive religious$ondu$t are a$$orded the highest degree of !rote$tion% 5hus, in the )-/ case of effron v% 5nternational *o$iety for Hrishna


25/47

ob4ectives, and no matter how many alternative approaches were available to the state to pursue its ob4ectives withless impact on religion, so long as government was acting in pursuit of a secular ob4ective2

5hree years later, the Gobitis de$isionwas overturned in est Virginia v% arnetteB14Cwhich involved asimilar set of facts and issue2 5he Court recogni%ed that saluting the flag, in connection with the pledges, was a formof utterance and the flag salute program was a compulsion of students to declare a belief2 5he Court ruled thatJcompulsory unification of opinions leads only to the unanimity of the graveyardK and exempt the students who weremembers of the #ehovahs Gitnesses from saluting the flag2 . close scrutiny of the case, however, would show that itwas decided not on the issue of religious conduct as the Court said, J!n&or does the issue as we see it turn on onespossession of particular religious views or the sincerity with which they are held2 Ghile religion supplies appelleesmotive for enduring the discomforts of ma"ing the issue in this case, many citi%ens who do not share these religiousviews hold such a compulsory rite to infringe $onstitutional liberty of the individual%.!emphasis supplied&B1'C5heCourt pronounced, however, that, Jfreedoms of speech and of press, of assembly, and of worship 2 2 2 are susceptibleonly of restriction only to prevent grave and i))ediate danger to interests whi$h the state )ay lawfully!rote$t%KB1C5he Court seemed to recogni%e the extent to which its approach in Gobitissubordinated the religiousliberty of political minorities = a specially protected constitutional value = to the common everyday economic and publicwelfare ob4ectives of the ma4ority in the legislature2 5his time, even inadvertent interference with religion must pass

4udicial scrutiny under the 1ree Exercise Clause with only grave and immediate danger sufficing to override religiousliberty2 But the seeds of this heightened scrutiny would only grow to a full flower in the )/s2B10C

9early a century after Reynoldsemployed the beliefa$tion test, the Garren Court began the modern freeexercise 4urisprudence2B18C. two!artbalan$ing testwas established in raunfeld v% rownB19Cwhere the Courtconsidered the constitutionality of applying Sunday closing laws to 8rthodox #ews whose beliefs reAuired them toobserve another day as the Sabbath and abstain from commercial activity on Saturday2 Chief #ustice Garren, writingfor the Court, found that the law placed a severe burden on Sabattarian retailers2 e noted, however, that since theburden was the indirect effect of a law with a secular purpose, it would violate the 1ree Exercise Clause only if therewere alternative ways of a$hieving the states interest% e employed a two!art balan$ing testof validity wherethe first step was for plaintiff to show that the regulation placed a real burden on his religious exercise2 9ext, theburden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means whichimposed the least burden on religious practices2B10"C5he Court found that the state had an overriding secular interestin setting aside a single day for rest, recreation and tranAuility and there was no alternative means of pursuing thisinterest but to reAuire Sunday as a uniform rest day2

5wo years after came the stricter $o)!elling state interest testin the )< case of *herbert v% Verner2B101C5his test was similar to the two!art balan$ing test in raunfeld B102Cbut this latter test stressed that the stateinterest was not )erely any $olorable state interest but )ust be !ara)ount and $o)!elling to override thefree eer$ise $lai)% ?n this case, Sherbert, a Seventh ay .dventist, claimed unemployment compensation underthe law as her employment was terminated for refusal to wor" on Saturdays on religious grounds2 er claim was

denied2 She sought recourse in the Supreme Court2 ?n laying down the standard for determining whether the denialof benefits could withstand constitutional scrutiny, the Court ruled, vi#6

7lainly enough, appellees conscientious ob4ection to Saturday wor" constitutes no conduct prompted by religiousprinciples of a "ind within the reach of state legislation2 ?f, therefore, the decision of the South Carolina SupremeCourt is to withstand appellants constitutional challenge, it must be either be$ause her disEualifi$ation as abenefi$iary re!resents no infringe)ent by the *tate of her $onstitutional rights of free eer$ise or be$auseany in$idental burden on the free eer$ise of a!!ellants religion )ay be /ustified by a ,$o)!elling stateinterest in the regulation of a sub/e$t within the *tates $onstitutional !ower to regulate% % % 9..C7 v2 Button,


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?t is certain that not every conscience can be accommodated by all the laws of the land; but when general laws$onfli$t with s$ru!les of $ons$ien$e ee)!tions ought to be granted unless so)e ,$o)!elling state interestintervenes%

5hus, in a short period of twenty=three years from Gobitisto *herbert (or even as early as raunfeld#the Courtmoved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the 1reeExercise Clause to the doctrine that such interferences violate the 1ree Exercise Clause in the absence of a

compelling state interest = the highest level of constitutional scrutiny short of a holding of aper seviolation2 5hus, theproblem posed by the beliefa$tion testand the deliberateinadvertentdistinction was addressed2B10C

5hroughout the )I/s and )*/s under the Garren, and afterwards, the Burger Court, the rationalein*herbertcontinued to be applied2 ?n ho)as v% Review oardB100Cand >obbie v% =ne)!loy)ent A!!eals?ivisionB108Cfor example, the Court reiterated the exemption doctrine and held that in the absence of a compelling

4ustification, a state could not withhold unemployment compensation from an employee who resigned or wasdischarged due to unwillingness to depart from religious practices and beliefs that conflicted with 4obreAuirements2 But not every governmental refusal to allow an exemption from a regulation which burdens a sincerelyheld religious belief has been invalidated, even though strict or heightened scrutiny is applied2 ?n =nited *tates v%3eeB109Cfor instance, the Court using strict scrutiny and referring to ho)as, upheld the federal governments refusalto exempt .mish employers who reAuested for exemption from paying social security taxes on wages on the groundof religious beliefs2 5he Court held that J!b&ecause the broad public interest in maintaining a sound tax system is ofsuch a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax2K B18"C?treasoned that unli"e in *herbert, an exemption would significantly impair governments achievement of its ob4ective =

Jthe fiscal vitality of the social security system;K mandatory participation is indispensable to attain this ob4ective2 5heCourt noted that if an exemption were made, it would be hard to 4ustify not allowing a similar exemption from generalfederal taxes where the taxpayer argues that his religious beliefs reAuire him to reduce or eliminate his payments sothat he will not contribute to the governments war=related activities, for example2

he stri$t s$rutiny and $o)!elling state interest test signifi$antly in$reased the degree of !rote$tionafforded to religiously )otivated $ondu$t% Ghile not affording absolute immunity to religious activity, a compellingsecular 4ustification was necessary to uphold public policies that collided with religious practices2 .lthough themembers of the Court often disagreed over which governmental interests should be considered compelling, therebyproducing dissenting and separate opinions in religious conduct cases, thisgeneral test established a strong!resu)!tion in favor of the free eer$ise of religion%B181C

eightened scrutiny was also used in the )I+ case of is$onsin v% IoderB182Cwhere the Court upheld thereligious practice of the 8ld 8rder .mish faith over the states compulsory high school attendance law2 5he .mishparents in this case did not permit secular education of their children beyond the eighth grade2 Chief #ustice Burger,

writing for the ma4ority, held, vi#6

?t follows that in order for Gisconsin to compel school attendance beyond the eighth grade against a claim that suchattendance interferes with the practice of a legitimate religious belief, it )ust a!!ear either that the *tate does notdeny the free eer$ise of religious belief by its reEuire)ent or that there is a state interest of suffi$ient)agnitude to override the interest $lai)ing !rote$tion under the ;ree 6er$ise


27/47

he onset of the 199"s however saw a )a/or setba$F in the !rote$tion afforded by the ;ree 6er$iseu)an Resour$es v% *)ith,B184Cthe sharplydivided RehnEuist


28/47

impairment of religious liberty would most often be of the inadvertent "ind as in *)ithconsidering the political culturewhere direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable2 ?f the 1ree ExerciseClause could not afford protection to inadvertent interference, it would be left almost meaningless2 5hird,the ReynoldsGobitis*)ithdoctrine simply defies common sense2 5he state should not be allowed to interferewith the most deeply held fundamental religious convictions of an individual in order to pursue some trivial stateeconomic or bureaucratic ob4ective2 5his is especially true when there are alternative approaches for the state toeffectively pursue its ob4ective without serious inadvertent impact on religion2B18C

5hus, the *)ith de$isionhas been critici%ed not only for increasing the power of the state over religion but asdiscriminating in favor of mainstream religious groups against smaller, more peripheral groups who lac" legislativeclout,B180Ccontrary to the original theory of the 1irst .mendment2B188C@ndeniably, claims for 4udicial exemption emanatealmost invariably from relatively politically powerless minority religions and *)ithvirtually wiped out their 4udicialrecourse for exemption2B189C5hus, the *)ithdecision elicited much negative public reaction especially from thereligious community, and commentaries insisted that the Court was allowing the 1ree Exercise Clause to disappear2B19"CSo much was the uproar that a ma4ority in Congress was convinced to enact the (eligious 1reedom (estoration

.ct !(1(.& of )


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5he interpretation of the Establishment Clause has in large part been in cases involving education, notably stateaid to private religious schools and prayer in public schools2 B2"1C?n 6verson v% oard of 6du$ationfor example, theissue was whether a 9ew #ersey local school board could reimburse parents for expenses incurred in transportingtheir children to and from Catholic schools2 5he reimbursement was part of a general program under which allparents of children in public schools and nonprofit private schools, regardless of religion, were entitled toreimbursement for transportation costs2 #ustice ugo Blac", writing for a sharply divided Court, 4ustified thereimbursements on the $hild benefit theory, i2e2, that the school board was merely furthering the states legitimate

interest in getting children Jregardless of their religion, safely and expeditiously to and from accredited schools2K 5heCourt, after narrating the history of the 1irst .mendment in 0irginia, interpreted the Establishment Clause, vi#6

5he establishment of religion clause of the 1irst .mendment means at least this6 9either a state nor the 1ederal'overnment can set up a church2 @either $an !ass laws whi$h aid one religion aid all religions or !refer onereligion over another% 9either can force nor influence a person to go to or remain away from church against his willor force him to profess a belief or disbelief in any religion2 9o person can be punished for entertaining or professingreligious beliefs or disbeliefs, for church attendance or non=attendance2 9o tax in any amount, large or small, can belevied to support any religious activities or institutions, whatever they may be called, or whatever form they may adoptto teach or practice religion2 9either a state nor the 1ederal 'overnment can, openly or secretly participate in theaffairs of any religious organi%ations or groups and vice versa2 5n the words of efferson the $lause againstestablish)ent of religion by law was intended to ere$t -a wall of se!aration between


30/47

5he school prayer decisions drew furious reactions2 (eligious leaders and conservative members of Congress andresolutions passed by several state legislatures condemned these decisions2B211C8n several occasions, constitutionalamendments have been introduced in Congress to overturn the school prayer decisions2 Still, the Court hasmaintained its position and has in fact reinforced it in the )*: case of alla$e v% affreeB212Cwhere the Court struc"down an .labama law that reAuired public school students to observe a moment of silence Jfor the purpose ofmeditation or voluntary prayerK at the start of each school day2

(eligious instruction in public schools has also pressed the Court to interpret the EstablishmentClause2 8ptional religious instruction within public school premises and instructional time were declared offensive ofthe Establishment Clause in the )-* case of 7$


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Some view the 7arsh rulingas a mere aberration as the Court would Jinevitably be embarrassed if it were toattempt to stri"e down a practice that occurs in nearly every legislature in the @nited States, including the @2S2Congress2KB22"C5hat 7arshwas not an aberration is suggested by subseAuent cases2 ?n the )*- case of3yn$h v%?onnelly,B221Cthe Court upheld a city=sponsored nativity scene in (hode ?sland2 By a :=- decision, the )a/orityo!inion hardly e)!loyed the 3e)on test and again relied on history and the fa$t that the $re$he had be$o)ea -neutral harbinger of the holiday season. for )any rather than a sy)bol of


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a number of influential scholars and 4urists2B228C5he two standards producing two streams of 4urisprudence branch outrespectively from the history of the 1irst .mendment in England and the .merican colonies and climaxing in 0irginiaas narrated in this opinion and officially ac"nowledged by the Court in6verson, and from .merican societal life whichreveres religion and practices age=old religious traditions2 Stated otherwise, se!aration= strict or tame = protects theprinciple of church=state separation with a rigid reading of the principle while benevolent neutralityprotects religiousrealities, tradition and established practice with a flexible reading of the principle2 B229C5he latter also appeals to historyin support of its position,vi#6

5he opposing school of thought argues that the 1irst Congress intended to allow govern)ent su!!ort of religionat least as long as that su!!ort did not dis$ri)inate in favor of one !arti$ular religion 2 2 2 the Supreme Courthas overloo"ed many important pieces of history2 $adison, for example, was on the congressional committee thatappointed a chaplain, he declared several national days of prayer and fasting during his presidency, and hesponsored #effersons bill for punishing Sabbath brea"ers; moreover, while president, #efferson allowed federalsupport of religious missions to the ?ndians2 2 2 .nd so, concludes one recent boo", there is no support in theCongressional records that either the 1irst Congress, which framed the 1irst .mendment, or its principal author andsponsor, #ames $adison, intended that .mendment to create a state of complete independence between religionand government2 ?n fact, the evidence in the public documents goes the other way2B2&"C!emphasis supplied&

5o succinctly and poignantly illustrate the historical basis of benevolent neutralitythat gives roomfora$$o))odation, less than twenty=four hours after Congress adopted the 1irst .mendments prohibition on lawsrespecting an establishment of religion, Congress decided to express its than"s to 'od .lmighty for the many

blessings en4oyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of5han"sgiving and 7rayer2 8nly two members of Congress opposed the resolution, one on the ground that the movewas a Jmimic"ing of European customs, where they made a mere moc"ery of than"sgivingsK, the other onestablishment clause concerns2 9evertheless, the salutary effect of than"sgivings throughout Gestern history wasac"nowledged and the motion was passed without further recorded discussion2B2&1C5hus, accommodationists also gobac" to the framers to ascertain the meaning of the 1irst .mendment, but prefer to focus on acts rather thanwords2 Contrary to the claim of separationists that rationalism pervaded .merica in the late )thcentury and that

.merica was less specifically Christian during those years than at any other time before or since,B2&2Caccommodationaists claim that .merican citi%ens at the time of the Constitutions origins were a remar"ablyreligious people in particularly Christian terms2B2&&C

he two strea)s of /uris!ruden$e se!arationist or a$$o))odationist are an$hored on a differentreading of the -wall of se!aration%. 5he stri$t se!artionist view holds that #efferson meant the Jwall ofseparationK to protect the state from the church2 #efferson was a man of the Enlightenment Era of the eighteenthcentury, characteri%ed by the rationalism and anticlericalism of that philosophic bent2B2&4Ce has often been regarded

as espousing eism or the rationalistic belief in a natural religion and natural law divorced from its medievalconnection with divine law, and instead adhering to a secular belief in a universal harmony2B2&'C5hus, according to this#effersonian view, the Establishment Clause being meant to protect the state from the church, the states hostilitytowards religion allows no interaction between the two2 B2&C?n fact, when #efferson became 7resident, he refused toproclaim fast or than"sgiving days on the ground that these are religious exercises and the Constitution prohibited thegovernment from intermeddling with religion2B2&0C5his approach erects an absolute barrier to formal interdependenceof religion and state2 (eligious institutions could not receive aid, whether direct or indirect, from the state2 9or couldthe state ad4ust its secular programs to alleviate burdens the programs placed on believers2 B2&8C8nly the completeseparation of religion from politics would eliminate the formal influence of religious institutions and provide for a freechoice among political views thus a strict Jwall of separationK is necessary2B2&9CStrict separation faces difficulties,however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both directand indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion2 5hus,strict separationists are caught in an aw"ward position of claiming a constitutional principle that has never existed andis never li"ely to2B24"C

. ta)er versionof the strict separationist view, the stri$t neutralityor se!arationist viewis largely used bythe Court, showing the Courts tendency to press relentlessly towards a more secular society2B241C?t finds basis inthe 6verson $asewhere the Court declared that #effersons Jwall of separationK encapsulated the meaning of the1irst .mendment but at the same time held that the 1irst .mendment JreAuires the state to be neutralin its relationswith groups of religious believers and non=believers it does not reEuire the state to be their adversary% *tate!ower is no )ore to be used so as to handi$a! religions than it is to favor the)% K !emphasis supplied&B242CGhilethe strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis forclassification for purposes of governmental action, whether the action confers rights or privileges or imposes duties orobligations2 8nly secular criteria may be the basis of government action2 ?t does not permit, much less reAuire,accommodation of secular programs to religious belief2B24&C7rofessor Ourland wrote, vi#6
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5he thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedomand separation clauses should be read as a single precept that government cannot utili%e religion as a standard foraction or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or toimpose a burden2B244C

5he Court has repeatedly declared that religious freedom means government neutrality in religious matters and theCourt has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular

purposes and in ways that have primarily secular effects2B24'C

7rayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form ofprayer, spo"en or silent, in the public schools as in 6ngeland *$he)!!2B24C5he 7$


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5he general principle deducible from the 1irst .mendment and all that has been said by the Court is this6 that we willnot tolerate either governmentally established religion or governmental interference with religion2 Short of thoseexpressly proscribed governmental acts there is room for play in the 4oints productive of a benevolent neutralitywhi$h will !er)it religious eer$ise to eist without s!onsorshi! and without interferen$e2B2'9C!emphasissupplied&

5he Jora$h $aseexpressed the doctrine of a$$o))odation,B2"Cvi#=

he ;irst A)end)ent however does not say that in every and all res!e$ts there shall be a se!aration of


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historic governmental practices that have largely lost their religious significance or at least have proven not to leadthe government into further involvement with religion2B28C

Gith religion loo"ed upon with benevolence and not hostility, benevolent neutralityallowsa$$o))odationofreligion under certain circumstances2 .ccommodations are government policies that ta"e religion specifically intoaccount not to promote the governments favored form of religion, but to allow individuals and grou!s to eer$isetheir religion without hindran$e% 5heir purpose or effect therefore is to remove a burden on, or facilitate theexercise of, a persons or institutions religion2 .s #ustice Brennan explained, the Jgovernment DmayF ta"e religioninto accountLto ee)!t when !ossible fro) generally a!!li$able govern)ental regulationindividuals whosereligious beliefs and practices would otherwise thereby be infringed, or to create without state involvement anatmosphere in which voluntary religious exercise may flourish2KB29C!emphasis supplied& .ccommodation isforbearance and not alliance2 it does not reflectagreement with the minority, but respectfor the conflict between thetemporal and spiritual authority in which the minority finds itself2B20"C

A$$o))odation is distinguished fro) stri$t neutrality in that the latter holds that govern)ent shouldbase !ubli$ !oli$y solely on se$ular $onsiderations without regard to the religious $onseEuen$es of itsa$tions% 5he debate between accommodation and strict neutrality is at base a Auestion of means6 J?s the freedom ofreligion best achieved when the government is conscious of the effects of its action on the various religious practicesof its people, and see"s to minimi%e interferences with those practicesT 8r is it best advanced through a policy ofreligious blindness = "eeping government aloof from religious practices and issuesTK .n accommodationist holdsthat it is good public policy, and sometimes constitutionally reAuired, for the state to ma"e conscious and deliberateefforts to avoid interference with religious freedom2 8n the other hand, the strict neutrality adherent believes that it isgood public policy, and also constitutionally reAuired, for the government to avoid religion=specific policy even at thecost of inhibiting religious exercise2B201C

5here are strong and compelling reasons, however, to ta"e the a$$o))odationistposition rather than thestrict neutrality position2 ;irst the a$$o))odationist inter!retation is )ost $onsistent with the language of the;irst A)end)ent% 5he religion clauses contain two parallel provisions, both specifically directed at Jreligion2K 5hegovernment may not JestablishK religion and neither may government JprohibitK it2 5a"en together, the religion clausescan be read most plausibly as warding off two eAual and opposite threats to religious freedom = government actionthat promotes the !political& ma4oritys favored brand of religion and government action that impedes religiouspractices not favored by the ma4ority2 5he substantive endin view is the preservation of the autonomy of religiouslife and not 4ust the for)al !ro$ess value of ensuring that government does not act on the basis of religiousbias2 8n the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever itdesires to or for religion, as long as it does the same to or for comparable secular entities2 5hus, for example, ifgovernment prohibits all alcoholic consumption by minors, it can prohibit minors from ta"ing part incommunion2 7aradoxically, this view would ma"e the religion clauses violate the religion clauses, so to spea", sincethe religion clauses single out religion by name for special protection2 *e$ond the a$$o))odationist !osition

best a$hieves the !ur!oses of the ;irst A)end)ent% 5he principle underlying the 1irst .mendment isthat freedo) to $arry out ones duties to a *u!re)e eing is an inalienable right not one de!endent on thegra$e of legislature% .lthough inalienable, it is necessarily limited by the rights of others, including the public right ofpeace and good order2 9evertheless it is a substantive right and not merely a privilege against discriminatorylegislation2 5he accomplishment of the purpose of the 1irst .mendment reAuires more than the Jreligion blindnessK ofstrict neutrality2 Gith the pervasiveness of government regulation, conflicts with religious practices become freAuentand intense2 3aws that are suitable for secular entities are sometimes inappropriate for religious entities, thus thegovernment must ma"e special provisions to preserve a degree of independence for religious entities for them tocarry out their religious missions according to their religious beliefs2 8therwise, religion will become 4ust li"e othersecular entities sub4ect to pervasive regulation by ma4oritarian institutions2 hird the a$$o))odationistinter!retation is !arti$ularly ne$essary to !rote$t adherents of )inority religions fro) the inevitable effe$tsof )a/oritarianis)which include ignorance and indifference and overt hostility to the minority2 ?n a democraticrepublic, laws are inevitably based on the presuppositions of the ma4ority, thus not infreAuently, they come intoconflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent tointerfere with religious practice2 .t times, this effect is unavoidable as a practical matter because some laws are sonecessary to the common good that exceptions are intolerable2 But in other instances, the in4ury to religiousconscience is so great and the advancement of public purposes so small or incomparable that only indifference orhostility could explain a refusal to ma"e exemptions2 Because of plural traditions, legislators and executive officialsare freAuently willing to ma"e such exemptions when the need is brought to their attention, but this may not alwaysbe the case when the religious practice is either un"nown at the time of enactment or is for some reasonunpopular2 5n these $ases a $onstitutional inter!retation thatallowsa$$o))odations !revents needlessin/ury to the religious $ons$ien$es of those who $an have an influen$e in the legislature while a$onstitutional inter!retation that requiresa$$o))odations etends this treat)ent to religious faiths that areless able to !rote$t the)selves in the !oliti$al arena% ;ourththe accommodationist position is practical as it is acommonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation2 Githout
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accommodation, many otherwise beneficial laws would interfere severely with religious freedom2 .side from lawsagainst serving alcoholic beverages to minors conflicting with celebration of communion, regulations reAuiring hardhats in construction areas can effectively exclude .mish and Si"hs from the wor"place, or employment anti=discrimination laws can conflict with the (oman Catholic male priesthood, among others2 Exemptions from such lawsare easy to craft and administer and contribute much to promoting religious freedom at little cost to publicpolicy2 ithout ee)!tions legislature would be freEuently for$ed to $hoose between violating religious$ons$ien$e of a seg)ent of the !o!ulation or dis!ensing with legislation it $onsiders benefi$ial to so$iety as

a whole% 6e)!tion see)s )anifestly )ore reasonable than either of the alternative: no ee)!tion or nolaw%B202C

enevolent neutralitygives room for different "inds of a$$o))odation:those which are constitutionallycompelled, i2e2, reAuired by the 1ree Exercise Clause; and those which are discretionary or legislative, i2e2, and thosenot reAuired by the 1ree Exercise Clause but nonetheless permitted by the Establishment Clause2 B20&CSome #usticesof the Supreme Court have also used the term a$$o))odationto describe government actions that ac"nowledge orexpress prevailing religious sentiments of the community such as display of a religious symbol on public property orthe delivery of a prayer at public ceremonial events2B204CStated otherwise, using benevolent neutralityas a standardcould result to three situations of a$$o))odation:those wherea$$o))odationis required, those where itispermissible, and those where it isprohibited2 ?n the first situation, accommodation is required to preserve freeexercise protections and not unconstitutionally infringe on religious liberty or create penalties for religiousfreedom2 Contrary to the *)ithdeclaration that free exercise exemptions are Jintentional governmentadvancementK, these exemptions merely relieve the prohibition on the free exercise thus allowing the burdenedreligious adherent to be left alone2 5he state must create exceptions to laws of general applicability when these laws

threaten religious convictions or practices in the absence of a compelling state interest2

B20'C

By allowing suchexemptions, the 1ree Exercise Clause does not give believers the right or privilege to choose for themselves tooverride socially=prescribed decision; it allows them to obey spiritual rather than temporal authority B20Cfor those whoseriously invo"e the 1ree Exercise Clause claim to be fulfilling a solemn duty2 (eligious freedom is a matter less ofrights than duties; more precisely, it is a matter of rights derived from duties2 5o deny a person or a community theright to act upon such a duty can be 4ustified only by appeal to a yet more compelling duty2 8f course, those deniedwill usually not find the reason for the denial compelling2 JBecause they may turn out to be right about the duty inAuestion, and because, even if they are wrong, religion bears witness to that which transcends the political order,such denials should be rare and painfully reluctant2KB200C

5heIoder $aseis an example where the Court held that the state must accommodate the religious beliefs ofthe .mish who ob4ected to enrolling their children in high school as reAuired by law2 5he *herbert $aseis anotherexample where the Court held that the state unemployment compensation plan must accommodate the religiousconvictions of Sherbert2B208C?n these cases of Jburdensome effectK, the modern approach of the Court has been toapply strict scrutiny, i2e2, to declare the burden as permissible, the Court reAuires the state to demonstrate that the

regulation which burdens the religious exercise pursues a particularly important or compelling government goalthrough the least restrictive means2 ?f the states ob4ective could be served as well or almost as well by granting anexemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given2 B209C5hisapproach of the Court on Jburdensome effectK was only applied since the )/s2 7rior to this time, the Court too" theseparationist view that as long as the state was acting in pursuit of non=religious ends and regulating conduct ratherthan pure religious beliefs, the 1ree Exercise Clause did not pose a hindrance such as in Reynolds2B28"C?n the secondsituation where accommodation ispermissible, the state may, but is not reAuired to, accommodate religiousinterests2 5he al+ $aseillustrates this situation where the Court upheld the constitutionality of tax exemption givenby 9ew >or" to church properties, but did not rule that the state was reAuired to provide tax exemptions2 5he Courtdeclared that J!t&he limits of permissible state accommodation to religion are by no means co=extensive with thenoninterference mandated by the 1ree Exercise Clause2KB281C5he Court held that 9ew >or" could have an interest inencouraging religious values and avoiding threats to those values through the burden of property taxes2 8therexamples are the Jora$h $aseallowing released time in public schools and 7arshallowing payment of legislativechaplains from public funds2 1inally, in the situation where accommodation isprohibited, establishment concernsprevail over potential accommodation interests2 5o say that there are valid exemptions buttressed by the 1ree

Exercise Clause does not mean that all claims for free exercise exemptions are valid2B282C

.n example whereaccommodation was prohibited is 7$


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consistent, coherent, clearly articulated, or congruent with those of the claimants religious denomination2 8nlybeliefs rooted in religion are protected by the 1ree Exercise Clause; secular beliefs, however sincere andconscientious, do not suffice2B284C

?n other words, a threeste! !ro$ess (also referred to as the -twoste! balan$ing !ro$ess. suprawhen these$ond and third ste!s are $o)bined#as in *herbertis followed in weighing the states interest and religiousfreedom when these collide2 5hree Auestions are answered in this process2 ;irst, J!h&as the statute or government

action created a burden on the free exercise of religionTK 5he courts often loo" into the sin$erityof the religiousbelief, but without inAuiring into the truth of the belief because the 1ree Exercise Clause prohibits inAuiring about itstruth as held in allardand


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A% >istory

Before our country fell under .merican rule, the blan"et of Catholicism covered the archipelago2 5here was aunion of church and state and Catholicism was the state religion under the *!anish


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5he Constitutional Convention then began wor"ing on the 19&'


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1reedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion orburden, whether direct or indirect, in the practice of ones religion2 5he 1ree Exercise Clause principally guaranteesvoluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancementof religious groups on their intrinsic merits and not on the support of the state2B&12C

?n interpreting the 1ree Exercise Clause, the real) of beliefposes no difficulty2 5he early case of Gerona v%*e$retary of 6du$ationB&1&Cis instructive on the matter, vi#6

he real) of belief and $reed is infinite and li)itless bounded only by ones i)agination and thought% *o isthe freedo) of belief in$luding religious belief li)itless and without bounds% 8ne may believe in mostanything, however strange, bi%arre and unreasonable the same may appear to others, even heretical when weighedin the scales of orthodoxy or doctrinal standards2 But between the freedom of belief and the exercise of said belief,there is Auite a stretch of road to travel2B&14C

5he diffi$ultyin interpretation sets in when belief is externali%ed into speech and action2

Religious s!ee$hcomes within the pale of the 1ree Exercise Clause as illustrated in the A)eri$an ible*o$iety $ase% ?n that case, plaintiff .merican Bible Society was a foreign, non=stoc", non=profit, religious missionarycorporation which sold bibles and gospel portions of the bible in the course of its ministry2 5he defendant City of$anila reAuired plaintiff to secure a mayors permit and a municipal license as ordinarily reAuired of those engaged inthe business of general merchandise under the citys ordinances2 7laintiff argued that this amounted to Jreligiouscensorship and restrained the free exercise and en4oyment of religious profession, to wit6 the distribution and sale of

bibles and other religious literature to the people of the 7hilippines2K

.fter defining religion, the Court, citing 5anada and 1ernando, made this statement, vi#6

5he constitutional guaranty of the free exercise and en4oyment of religious profession and worship carries with it theright to disseminate religious information2 .ny restraint of such right can only be 4ustified liFe other restraints offreedo) of e!ressionon the grounds that there is a $lear and !resent danger of any substantive evil whi$hthe *tate has the right to !revent% !5anada and 1ernando on the Constitution of the 7hilippines, vol2 ), - thed2, p2+I& !emphasis supplied&

his was the


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Secretary of Education implementing (epublic .ct 9o2 )+: which prescribed compulsory flag ceremonies in allpublic schools2 ?n violation of the 8rder, petitioners children refused to salute the 7hilippine flag, sing the nationalanthem, or recite the patriotic pledge, hence they were expelled from school2 See"ing protection under the 1reeExercise Clause, petitioners claimed that their refusal was on account of their religious belief that the 7hilippine flag isan image and saluting the same is contrary to their religious belief2 5he Court stated, vi#6

2 2 2 ?f the exercise of religious belief clashes with the established institutions of society and with the law, then the

former must yield to the latter2 5he 'overnment steps in and either restrains said exercise or even prosecutes theone exercising it2 !emphasis supplied&B&2"C

5he Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefsof the petitioners with the following 4ustification6

.fter all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts2 ?tcannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would beconfusion and misunderstanding for there might be as many interpretations and meaning to be given to a certainritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they,though in all sincerity and good faith, may want to give to such ritual or ceremony2B&21C

?t was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothingob4ectiona

Valino v Adriano & Estrada v Escritor

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