The Separation of the Church and State and Freedom Of Religion in the Philippines
Article II, Sec. 6. “The separation of Church and State shall be inviolable.”
This is also called as the Non-establishment clause. The Concept of this provision is that the State has no right to establish a religion, force or influence a person against his will to associate or disassociate himself to a particular religion and to mandate a national religion. The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153)
The non-establishment clause can be summarized as:
1. The prohibition of supporting directly institutional religion but not support which indirectly accrues to churches and church agencies through support given to its members; and
2. Prohibition to both direct and indirect aid to religion when the aid involves preference of one religion over another and preference over religion over irreligion.
Under the Benevolent neutrality doctrine which is copied from American jurisprudence, in the case of Estrada v. Escritor the Supreme Court said: “The principle underlying the First Amendment is that freedom to carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the "religion blindness" of strict neutrality.”
Art. III Sec. 5. “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 requires for the exercise of civil or political rights.”
Freedom of Religion includes the right to believe and the right not to believe. Freedom of Religion embraces two concepts, to wit: the “Right to Believe” and the “Right to put that belief into action”. The “Right to Believe” is an absolute right which no one even the State cannot interfere and the “Freedom to Act According to One’s Belief” is subject to State regulations. The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. The moment however, when this belief flows over into action, it becomes subject to government regulation.
There are two test which can be used to determine if the religious act is subject to government regulations, they are the:
1. Clear and present danger rule/test (which is applicable to Freedom of Speech) - this rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high (Cabansag v. Fernandez, 102 Phil. 151); and
2. Compelling State Interest Test (which is mostly used in voting rights cases and equal protection cases) – it is the test used to determine if the interest of the State are compelling enough to justify infringement of religious freedom. The state has the burden to justify any possible sanctions. This involves three (3) steps:
a. The court should look into the sincerity of the religious belief without inquiring to the truth of that belief;
b. The State has to establish that its purpose is legitimate and compelling;
c. That the State used the less intrusive means possible.
Cases for reading:
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