THE CHURCH AND STATE
14TH NATIONAL CONVENTION OF THE ARCH/DIOCESAN
FINANCIAL ADMINISTRATORS OF THE PHILIPPINES
BACOLOD CITY
JUNE 19, 2012
“The separation of Church and State shall be
inviolable.” (Article II, Section 6)
“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.” (Article
III, Section 5, 1987 Constitution).
HISTORY:
1565-1898 - the Roman Catholic Church and
the government during the
Spanish colonial period had close ties.
Political power was shared by the
Roman Catholic Church and the Spanish civil
authorities.
“Patronato Real de las Indias”, a
combination of law and jurisprudence that
governed the delicate relationship of the
Holy See and the Spanish monarchy
regarding colonial affairs.
LATE 19TH CENTURY - Church involvement
had numerous ill effects. An antifriar
Marcelo H. del Pilar complained: ... the friars
control all the fundamental forces of society
in the Philippines. They control the
educational system, for they own the
University of Santo Tomás, and are the local
inspectors of every primary school. They
control the minds of the people because in a
dominantly Catholic country, the parish
rectors can utilize the pulpit and
confessionals to publicly or secretly
influence the people.
- JOSE RIZAL’s Noli Me Tangere and
El Filibusterismo
-1898, Filipino nationalists framed a
constitution for an independent Philippine
republic. Felipe Calderón proposed for the
declaration of Roman Catholicism as state
religion. Apolinario Mabini insisted on the
separation of church and state. The Calderón
proposal was defeated by The constitution of
1899 states in Article 5:”The State recognizes
the freedom and equality of all religions, as
well as the separation of Church and State.”
December 10, 1898 - Treaty of Paris between
the United States and Spain. The American
guarantee of religious freedom had been
extended to the Philippines.
-  William Howard Taft, the head of the Second
Philippine Commission and the first civil
governor of the Philippine Islands, requested
friars to leave their parish posts.
-  the compulsory sale of vast Roman Catholic
Church holdings began.
-Taft’s goal of sequestering all the Roman
Catholic Church lands became successful.
This not only reduced the financial position
of the Roman Catholic Church, but also
diminished the influential clout it had during
the Spanish colonial period.
1900 - President McKinley issued the
Instructions
to the Second Philippine
Commission, the body created to take over
the civil government in the
Philippines. The Instructions guaranteed
religious freedom.
Likewise, the Instructions declared that “(t)he
separation between State and Church shall
be real, entire and absolute.
•  1935 charter on religion mimicked the
First Amendment to the United States
Constitution, but the phrase ”The free
exercise and enjoyment of religious
profession and worship, without
discrimination or preference, shall be forever
allowed. No religious test shall be required
for the exercise of civil or political rights”
was appended. This became the basis for the
non-establishment of religion and
freedom of religion in the Philippines.”
•  The 1973 Constitution contained an almost
identical provision on religious freedom in
the Bill of Rights in Article IV, Section 8.
•  The 1973 religious clauses were reproduced
in the 1987 Constitution under the Bill of
Rights in Article III, Section 5. Likewise, the
provision on separation of church and state
was included verbatim in the 1987
Constitution as a principle in Section 6,
Article II entitled Declaration of Principles
and State Policies.
DUAL ASPECT OF RELIGIOUS
FREEDOM:
1. “No law shall be made respecting an
establishment of religion, or prohibiting
the free exercise thereof.”
THE ESTABLISHMENT CLAUSE
2.” 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.”
- THE FREE EXERCISE CLAUSE
THE THEORY OF BENEVOLENT NEUTRALITY
– Estrada vs. Escritor, 408 SCRA 1 (2003).
-  Requires application of compelling state
interest test in order to justify the impairment
of the religious right of an individual.
-accomodation of religion may be allowed to
allow individuals and groups to exercise their
religion without hindrance.
•  FREE EXERCISE•  American Bible Society v. City of Manila plaintiff American Bible, a foreign, non-stock,
non-profit, religious missionary corporation sold
bibles and gospel portions of the bible in the
course of its ministry. The defendant City of
Manila required plaintiff to secure a mayor’s
permit and license as ordinarily required of those
engaged in the business of general merchandise
under the city’s ordinances.
•  Plaintiff argued that this amounted to
“religious censorship and restrained the
free exercise and enjoyment of religious
profession, to wit: the distribution and sale
of bibles and other religious literature to
the people of the Philippines.”
RULING: The constitutional guaranty of the free
exercise and enjoyment of religious profession
and worship carries with it the right to
disseminate religious information. Any restraint
of such right can only be justified like other
restraints of freedom of expression on the
grounds that there is a clear and present
danger of any substantive evil which the
State has the right to prevent. (Tanada and
Fernando on the Constitution of the Philippines,
vol. 1, 4th ed., p. 297) (emphasis supplied)
•
Gerona v. Secretary of Educationpetitioners, members of the Jehovah’s
Witnesses who challenged a Department
Order implementing R.A. 1265 which
prescribed compulsory flag ceremonies in all
public schools. Their children refused to
salute the Philippine flag, sing the national
anthem, or recite the patriotic pledge, hence
they were expelled from school. Seeking
protection under the Free Exercise Clause,
they claimed that their refusal was on
account of their religious belief that the
Philippine flag is an image and saluting the
same is contrary to their religious belief.
•  RULING: It was held that the flag was not an image,
the flag salute was not a religious ceremony, and
there was nothing objectionable about the singing of
the national anthem as it speaks only of love of
country, patriotism, liberty and the glory of suffering
and dying for it. The Court upheld the questioned
Order and the expulsion of petitioner’s children,
stressing that:
•  Men may differ and do differ on religious beliefs x x x
but in the field of love of country, reverence for the
flag, national unity and patriotism, they can hardly
afford to differ, for x x x they mean national
existence and survival as a nation or national
extinction.
In 1993, the issue on the Jehovah’s
Witnesses’ participation in the flag
ceremony was raised again in Ebralinag v.
The Division Superintendent of Schools. A
unanimous Court overturned the Gerona
ruling after three decades.
•  RULING: Court used the “grave and
imminent danger” test laid down in
Justice Teehankee’s dissent
in German, viz:
•  The sole justification for a prior restraint or
limitation on the exercise of religious
freedom is the existence of a grave and
present danger of a character both grave and
imminent, of a serious evil to public safety,
public morals, public health or any other
legitimate public interest, that the State has a
right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the
petitioners from the schools is not
justified. (emphasis supplied)
•  The Court added, viz:
•  We are not persuaded that by exempting the
Jehovah’s Witnesses from saluting the flag,
singing the national anthem and reciting the
patriotic pledge, this religious group x x x
will shake up our part of the globe and
suddenly produce a nation ‘untaught and
uninculcated in and unimbued with
reverence for the flag, patriotism, love of
country and admiration for national
heroes’ (Gerona v. Secretary of Education,
106 Phil. 224).
•
After all, what the petitioners seek only is
exemption from the flag ceremony, not
exclusion from the public schools where they
may study the Constitution, the democratic
way of life and form of government, and learn
not only the arts, sciences, Philippine history
and culture but also receive training for a
vocation or profession and be taught the
virtues of ‘patriotism, respect for human
rights, appreciation of national heroes, the
rights and duties of citizenship, and moral
and spiritual values’ (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula.
•  German v. Barangan in 1985 at the height of
the anti-administration rallies.
Petitioners
were walking to St. Jude Church within the
Malacanang security area to pray for “an end
to violence” when they were barred by the
police. Invoking their constitutional freedom
of religious worship and locomotion, they
came to the Court on a petition for
mandamus to allow them to enter and pray
inside the St. Jude Chapel.
•  The Court was divided on the issue. The slim
majority of six recognized their freedom of
religion but noted their absence of good faith
and concluded that they were using their
religious liberty to express their opposition to the
government.
Citing Cantwell, the Court
distinguished between freedom to believe and
freedom to act on matters of religion, viz:
•  . . . Thus the (First) amendment embraces two
concepts – freedom to believe and freedom to
act. The first is absolute, but in the nature of
things, the second cannot be.
Iglesia ni Cristo vs. Court of Appeals
(1996)
This case involved the television
program, “Ang Iglesia ni Cristo,” regularly
aired over the television. Upon petitioner
Iglesia ni Cristo’s submission of the VTR
tapes of some of its episodes, respondent
Board of Review for Motion Pictures and
Television classified these as “X” or not for
public viewing on the ground that they
“offend and constitute an attack against
other religions which is expressly prohibited
by law.” Invoking religious freedom, petitioner
alleged that the Board acted without
jurisdiction or with grave abuse of discretion
in requiring it to submit the VTR tapes of its
television program and x-rating them.
RULING: Quoting Justice Cruz’ commentary
on the constitution, the Court held that
freedom to believe is absolute but freedom to
act on one’s belief, where it affects the
public, is subject to the authority of the state.
In annulling the x-rating of the shows, the
Court stressed that the Constitution is
hostile to all prior restraints on speech,
including religious speech and the x-rating
was a suppression of petitioner’s freedom of
speech as much as it was an interference
with its right to free exercise of
religion.
Citing Cantwell, the Court
recognized that the different religions may
criticize one another and their tenets may
collide, but the Establishment Clause
prohibits the state from protecting any
religion from this kind of attack.
CONCLUSION:
•  The Philippine Supreme Court has
adopted a posture of not invalidating a
law offensive to religious freedom, but
carving out an exception or upholding
an exception to accommodate religious
exercise where it is justified.
TAXATION POWER = ENFORCED
CONTRIBUTION
EXCEPTIONS:
(a) PROHIBITION AGAINST
TAXATION OF RELIGIOUS,
CHARITABLE, EDUCATIONAL
ENTITIES (SEC. 28, [3], ART. VI,
CONST.)
(a.1) Coverage – only property taxes
(a.2) Test – use of the property. Must be actual,
direct and exclusive (Province of Abra vs.
Hernando, Aug. 31, 1981).
“Exclusively” – primarily not solely (Herrera
vs QCBAA, Sept. 30, 1961).
(a.3) Scope – extends to facilities
incidental or necessary for the
accomplishment of the purpose.
(b) Prohibition against taxation of nonstock, non-profit educational institutions
(Sec. 4[3], Art. XIV, Const.).
(b.1) Coverage – income, property,
donor’s and donee’s taxes and
custom’s duties used actually, directly
and exclusively for educational purpose.
SALAMAT PO!
ATTY. LIZA