If, as the 1987 Constitution declares, it is a State principle that the separation of church and state is inviolable, why is it still an issue?
A primer on Church-State Separation
It’s not that the concept of church-state separation is novel. Church-state separation is an essential component of a Jeffersonian democracy. Thomas Jefferson says as much in a letter to the Danbury Baptist Association on January 1, 1802:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.
If Jefferson’s ideas strike a familiar chord, it’s because they should. It is Jefferson’s idea of democracy that the United States imposed on the Philippines. Among its tenets is that the Constitution is both a grant and a measure of government’s power; that the limit of government’s power is in the Bill of Rights; that press freedom is the best safeguard against tyranny; and church-state separation is the best way to insulate the state from the corruption of the clergy, and that church-state separation is the best way to keep church teachings pure from the concerns of the secular. It is no accident that the provisions on press freedom and church-state separation are next to each other in the Bill of Rights.
Following that Jeffersonian ideal, the concept of Church-State separation under law has two faces: the non-establishment or an endorsement of an official State religion , known as the non-establishment clause; and the prohibition against any law prohibiting the practice of a religion according to legitimate beliefs, known as the free exercise clause.
Because the constitutional provision that guarantees church-state separation is essentially the same as that found in the United States Constitution, the Philippine Supreme Court considers decisions of the Supreme Court of the United States defining the boundaries of the free exercise clause and the non-establishment clause as highly persuasive (See Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994).
The Free Exercise Clause
Controversy in the United States regarding the free exercise clause revolves around the regulation of activity that may be involved in religious practices, such as the ingestion of peyote (Employment Division v. Smith, 494 U.S. 872 ), the ritual sacrifice of animals (Church of Lukumi Babalu Ayeh v. City of Hialeah, 508 U.S. 520 ); and the importation of sacramental tea containing a prohibited substance (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 ).
As it stands, regulation of prohibited activity must not target a particular religion and must pass strict scrutiny (Gonzales, 546 U.S. 418 ); any regulation infringing on the free exercise clause must be justified by a compelling governmental interest (Church of Lukumi Babalu Ayeh, 508 U.S. 520 ) and narrowly tailored to advance that interest (Employment Division, 494 U.S. 872 ).
In the Philippines, the free exercise clause has been applied to invalidate regulation mandating employee membership in a labor union (Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, September 12, 1974) and a regulation requiring students to stand at a flag ceremony (Ebralinag v. Division Superintendent of Schools, G.R. No. 95770, March 1, 1993). The free exercise clause was also invoked in challenging an administrative penalty for adultery and concubinage in remarriage sanctioned only by the public officer’s religion (Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003).
Aside from employing strict scrutiny, the Supreme Court ruled that the compelling governmental interest must be the elimination of a “grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent.” (Ebralinag, G.R. No. 95770, March 1, 1993, citing German vs. Barangan, 135 SCRA 514, 517).
The Non-Establishment Clause
Because of the long involvement of the Roman Catholic Church in Philippine politics, the current controversy revolves around the non-establishment clause, which prohibits government from endorsing or creating a particular religion or sect.
The question, therefore, is what constitutes religious endorsement. Jurists in the United States have kept a watchful eye on when a government act may run afoul of this prohibition, such as when religious institutions are the indirect beneficiaries of government grants and benefits (Zelman v. Simmons-Harris, 536 U.S. 639 ), when there are public monuments of religious symbols or icons (McCreary County v. ACLU, 545 U.S. 844 ; Van Orden v. Perry, 545 U.S. 677 ).
In Zelman, the United States Supreme Court ruled that a public voucher program giving needy families a government subsidy to enroll in any school of their choice, even if the schools chosen are affiliated with a religion, does not violate the non-establishment clause when: the program must have a valid secular purpose; the aid must go to parents and not to the schools; a broad class of beneficiaries must be covered; the program must be neutral with respect to religion; and there must be adequate nonreligious options.
Another area of litigation in the United States is in the erection of public monuments depicting religious symbols and icons. In the twin cases of McCreary County and Van Orden, the United States Supreme Court ruled that such religious displays on public land do not violate the non-establishment clause if the display, when taken in context, can be appreciated as a secular monument with non-religious historical and analytical meaning.
Constitutionalist Joaquin Bernas, in his extended 2003 treatise, notes that while religious instruction in public schools in the United States is the subject of debate, in the Philippines, the impasse is resolved by the text of the Constitution, which allows children in public schools to receive religious instruction from persons “designated or approved by the religious authorities of the religion to which the children… belong.” Bernas also notes that the preferential treatment towards religion does not end there; the framers also explicitly provide that lands actually, directly, and exclusively used for religious purposes are exempt from taxation (art. 28 (3), 1987 Constitution) and that members of the religious can be paid by the state in their capacity as such, when assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium (art. 29 (2), 1987 Constitution).
In the Philippines, non-establishment cases have revolved around the state acknowledging it has no jurisdiction over ecclesiastical matters. Bernas notes that even in the leading case law on the subject, Fonacier v. Court of Appeals (96 Phil 417 ),1 the Supreme Court cited United States jurisprudence in noting that it had no power to rule on matters of doctrine and member discipline, and that such questions have no bearing on how civil courts decide on matters:
The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those who allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts (45 Am. Jur. 748-752,755).
In practice, however, and as Bernas notes, the definition of religion in the non-establishment clause, as interpreted in cases such as Garces v. Estenzo, G.R. No. 53487, May 25, 1981, and Aglipay v. Ruiz, 64 Phil. 201, is narrow, such that if it can be argued that an act is non-religious, state support for the activity will not be considered as a violation of the non-establishment clause.
Finally, an important part of the non-establishment clause is the explicit Constitutional provision that “no religious test shall be required for the exercise of civil and political rights.” By this provision, government cannot require adherence to a certain set of beliefs before one can exercise rights provided to him under law. For example, the State cannot require adherence to the Roman Catholic religion or to the belief that the use of contraception is a moral wrong before a health center provides information on a woman’s reproductive health or similar information. To require such a test, as Bernas notes and as the United States Supreme Court writes, “would have the effect of ‘formal or practical ‘establishment’ of particular religious faiths… with consequent burdens imposed on the free exercise of the faiths of non-favored believers (Torcaso v. Watkins, 435 U.S. 718 ).'”
1 Claro M. Recto won the case; Ferdinand Marcos appeared as amicus curiae, a “friend of the court” called upon as an expert on the matter.