Freedom of Religion
Freedom of Religion
XI. FREEDOM OF RELIGION & NON‐ESTABLISHMENT
Wednesday, 2 May 2018 12:54 PM
Section 5.
Section 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 required for the exercise of civil or political rights.
• FREE EXERCISE CLAUSE
FREE EXERCISE CLAUSE
• Guarantees the liberty of the religious conscience
• To believe
• Not to believe
• Prohibits any degree of compulsion or burden in the practice of
one‘s religion
• Whether direct, or indirect
• Protects the freedom to believe, which is ABSOLUTE
• Protects the freedom to act, which may be subject to regulation
• When the freedom of religion is regulated, the Courts
subject such regulations to tests to determine their
validity
• TESTS USED TO DETERMINE VALIDITY OF STATUTES
REGULATING FREE EXERCISE
REGULATING FREE EXERCISE
1. Belief Action Test(Reynolds v US)
• Regulation of religion in terms of conduct is acceptable,
as long as the government is not regulating belief
• Belief = CANNOT BE REGULATED
• Acting on Belief = CAN BE REGULATED
• This test is no longer used as it has been overturned by
the deliberate‐inadvertent
distinction
2. Deliberate‐Inadvertent Distinction (Minersville School District v
Gobitis)
• Deliberate State interference in religious exercise for
religious reasons is unconstitutional
• Inadvertent interference with religion in pursuing some
secular objective however is allowed
• This test is also no longer used as it has been superseded
by the Two‐Part Balancing Test.
3. Two‐Part Balancing Test Braunfield v Brown)
• Step 1: W/N the regulation places a real burden on the
plaintiff‘s religious exercise
• Step 2: W/N the State has an overriding secular goal such
that the burden can be upheld
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 1/6
2/25/2019 OneNote Online
• Step 3: W/N the means to achieve the goal imposed the
least burden on religious practice
4. Compelling State Interest
• Step 1: W/N the regulation places a real burden on the
plaintiff‘s religious exercise
• W/N plaintiff's adherence to his religion is authentic
and sincere
• Step 2: W/N the State interest behind regulation is
paramount and compelling as to override the claim for
exception thru the Free Exercise clause
• Step 3: W/N the means to achieve the goal imposed the
least burden on religious practice
• This test the one currently used in Philippine
Jurisprudence
• NON‐ESTABLISHMENT CLAUSE
NON‐ESTABLISHMENT CLAUSE
• Calls for government neutrality in religious matters
• Values sought to be protected by the Establishment Clause
• Voluntarism
• Insulation of political process from interfaith dissension
• Four General Propositions: (PAA‐E)
1. Government must not prefer one religion over another or
religion over irreligion
• This preference would violate voluntarism and
breed dissension
2. Government funds must not be applied to religious
purposes
• This would violate voluntarism and breed interfaith
dissension
3. Government action must not aid religion
• This would violate voluntarism and breed interfaith
dissension
4. Government action must not result in excessive
entanglement with religion
• This would violate voluntarism and breed interfaith
dissension
• Establishment entails POSITIVE action on the part of the State
• State becomes involved through the use of government
resources with the primary intention of setting up a state
religion
• A law or government action with a LEGITIMATE SECULAR
purpose does not offend the Establishment Clause even if
it incidentally aids a particular religion
• Accommodation entails PASSIVE action
• State merely gives consideration to its citizens who want
to freely exercise their religion
• The State can‘t pass laws which aid one religion, all religions, or
prefer one religion over another
• TEST USED TO DETERMINE VALIDITY OF STATUTES THAT
INCIDENTALLY FAVOR OR INHIBIT A PARTICULAR
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 2/6
2/25/2019 OneNote Online
RELIGION
RELIGION
1. Excessive Entanglement Test/Lemon Test/Three‐Pronged Test
(Lemon v Kurtzman)
• Step 1: W/N regulation has a secular legislative
purpose
• Step 2: W/N its primary or principal effect neither
advances nor inhibits religion
• Step 3: W/N it foster an excessive entanglement with
religion
• STRICT NEUTRALITY vs BENEVOLENT NEUTRALITY
STRICT NEUTRALITY vs BENEVOLENT NEUTRALITY
• Approaches that frame:
• Government regulation
• Government interaction with religion
• STRICT NEUTRALITY (Separation)
• Protects the principle of church‐ state separation with a
RIGID reading of the principle
• It allows NO INTERACTION between the church and the
state.
• Under this approach, religion may not be used as a basis
for classification of government action
• BENEVOLENT NEUTRALITY
• Recognizes that absolute separation is NOT REALISTIC and
practicable in our society
• Allows for an interaction between religion and the
state,
• Allows for accommodation of religion in law making
as called for by necessity or practicality
• In the Philippines, our previous and present Constitutions
provide many provisions why this approach is applicable in
our jurisdiction:
• The tax exemption extended to religious groups
• Optional religious instruction
• The Preamble‘s mention of Almighty God
• These provisions manifest the Filipinos‘
adherence to the benevolent neutrality
approach
• ACCOMMODATION THEORY
ACCOMMODATION THEORY
• Under the benevolent neutrality approach, accommodation of
religion is allowed under certain circumstances
• Accommodations are government policies that take religion
specifically into account
• To allow individuals and groups to exercise their religious
freedom without hindrance
• NOT to promote the government‘s favored form of
religion
• Seeks an EXEMPTION from the application or the “burdensome
effect" of a facially neutral law, even in criminal statutes
• Example: Law punishing bigamy in the RPC
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 3/6
2/25/2019 OneNote Online
• DOES NOT seek a declaration of unconstitutionality of a
facially neutral law
• Accommodation does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it
• The purpose is to draw the line between mandatory,
permissible and forbidden religious exercise
• Under the framework, the Court cannot simply dismiss a
claim under the Free Exercise Clause because the conduct
in question offends a law
• Court still weighs the compelling state interest behind the
law against the exemption sought
• THREE TYPES OF ACCOMMODATION
THREE TYPES OF ACCOMMODATION
• The application of the compelling state interest test may result
in one of these three types of accommodation
1. MANDATORY ACCOMMODATION
MANDATORY ACCOMMODATION
• Product of a Court finding that accommodation is
REQUIRED by the Free Exercise Clause
• When the Court itself carves out an exemption from
a facially‐neutral law
• Occurs when the Compelling State Interest Test is met
• When the State has failed to demonstrate a
compelling interest that is furthered by withholding
an exemption from a facially‐neutral law
2. PERMISSIVE ACCOMMODATION
PERMISSIVE ACCOMMODATION
• This is synonymous to legislative accommodation
• When the legislature provides for an exception from
a facially‐neutral law
• Results when the Court finds that the State, through the
legislature, MAY BUT IS NOT REQUIRED to accommodate
religious interests
• Example: Exemption granted to Muslims with regard to
the crime of Bigamy in the Sharia Law
3. PROHIBITED ACCOMMODATION
PROHIBITED ACCOMMODATION
• Product of a Court finding either that:
• There is no basis for a mandatory accommodation;
or
• The legislative accommodation runs afoul of the
Establishment or Free Exercise clauses
• Establishment clause PREVAILS
PREVAILS over potential
accommodation interests
• ACCOMMODATION IN PH JURISDICTION
ACCOMMODATION IN PH JURISDICTION
• In relation to criminal statutes, only the question of mandatory
accommodation is uncertain
▪
Philippine law and jurisprudence has already allowed
legislative accommodations
• The power of courts to grant exemptions in general has already
been decided twice by the SC
▪ Ebralinag
▪ American Bible Society
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 4/6
2/25/2019 OneNote Online
• Following a survey of religious cases, the SC concluded that it
has adopted a posture of:
▪ Carving out an exception to accommodate religious
exercise where it is justified
▪ NOT invalidating a law offensive to religious freedom
• The Constitution itself mandates the Court to carve out such
exception in the absence of compelling state interests (Estrada v
Escritor II)
1. The benevolent neutrality‐accommodation approach in
Philippine jurisdiction is more pronounced and given
leeway than in the U.S.
2. The whole purpose of the accommodation theory,
including the notion of mandatory accommodations, was
to address the inadvertent burdensome effect that an
otherwise facially neutral law would have on religious
exercise
• Just because the law is criminal in nature, therefore,
should not bring it out of the ambit of the Free
Exercise Clause
3. Exemption from penal laws on account of religion is not
entirely an alien concept, nor will it be applied for the first
time, as an exemption of such nature, albeit by legislative
act, has already been granted to Moslem polygamy and
the criminal law of bigamy.
4. Unlike other fundamental rights like the right to life,
liberty or property, the Religion Clauses are stated in
absolute terms, unqualified by the requirement of due
process, unreasonableness, or lawful order
• If the burden is great and the sincerity of the
religious belief is not in question, adherence to
the benevolent neutrality‐accommodation approach
require that the Court make an individual
determination and not dismiss the claim outright
• HOWEVER, the adoption of the benevolent
neutrality‐accommodation approach does not mean
that the Court ought to grant exemptions every time
a free exercise claim comes before it
• The interest of the state should also be
afforded utmost protection if found to be
compelling through the compelling state
interest test
• RELIGION
RELIGION
• Has reference to one’s views of his relations to his Creator, and
to the obligations they impose of reverence for his being and
character, and of obedience to his will
• Four criteria to qualify as religion under the First Amendment
(BM‐SA)
1. First, there must be belief in God or some parallel belief
that occupies a central place in the believer’s life.
2. Second, the religion must involve a moral code
transcending individual belief
i.e., it cannot be purely subjective.
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 5/6
2/25/2019 OneNote Online
3. Third, a demonstrable sincerity in belief is necessary, but
the court must not inquire into the truth or
reasonableness of the belief
4. Fourth, there must be some associational ties, although
there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind
of group or sect are entitled to the protection of the Free
Exercise Clause.
https://onedrive.live.com/redir?resid=7054F842543FE949%21130&page=Edit&wd=target%28Consti%202.one%7C43133fa7-e9d7-d149-af7f-2994f6f4bdb6%2FXI.… 6/6