1. Non-establishment and Free Exercise Clauses

G. Freedom of Religion

• Non-Establishment and Free Exercise Clauses
• Separation of Church and State
• Benevolent Neutrality and Conscientious Objector
• Tests to Determine the Validity of Governmental Regulation
• Clear and Present Danger
• Compelling State Interest

1987 CONST., art. III, sec. 5

> art. III, sec. 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.

> art. II, sec. 6 SECTION 6. The separation of Church and State shall be inviolable.

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. (PHIL. CONST., art. III, § 5)

The constitutional assurance of religious freedom provides two guarantees:

• The Non-Establishment Clause
• The Free Exercise Clause (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz involving the Establishment Clause, defined religion as a profession of faith to an active power that binds and elevates man to his Creator.

Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila, a case involving the Free Exercise clause. The latter also cited the American case of Davis v. Beason in defining religion, viz: it has reference to one’s views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will.

The Davis definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006)

Every violation of the free exercise clause involves compulsion, whereas a violation of the nonestablishment clause need not involve compulsion. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES

Concept

The establishment clause principally prohibits the State from sponsoring any religion or favoring any religion as against other religions. It mandates a strict neutrality in affairs among religious groups. Essentially, it prohibits the establishment of a state religion and the use of public resources for the support or prohibition of a religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Basis

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension:

Voluntarism

Voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.

As a social value, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage.

Insulation of the Political Process From Interfaith Dissension

Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006)

Prohibited Acts of the State Under the Establishment Clause

The non-establishment clause reinforces the wall of separation between Church and State. It simply means that:

• The State cannot set up a Church.
• The State may not establish or prefer a religion, but a law or government measure may accommodate religious exercise when consistent with benevolent neutrality and the Constitution. (1987 Constitution, Art. III, Sec. 5; Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006)
• The State cannot force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion.
• The State cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance.
• Public money or property generally may not be used to support a religion or religious personnel as such, except when such religious personnel are assigned to the armed forces, a penal institution, a government orphanage, or a leprosarium. (1987 Constitution, Art. VI, Sec. 29(2))
• The State may not impermissibly interfere in a religious organization’s internal affairs or sponsor religion, but it may accommodate religious exercise consistently with benevolent neutrality and the Constitution. (1987 Constitution, Art. III, Sec. 5; Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006)

Its minimal sense is that the State cannot establish or sponsor an official religion. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)

In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions:

• Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension.
• Public funds generally may not be appropriated or used for the use, benefit, or support of any religion, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such religious personnel are assigned to the armed forces, a penal institution, a government orphanage, or a leprosarium. (1987 Constitution, Art. VI, Sec. 29(2))
• Government action must not impermissibly favor or sponsor religion; constitutionally consistent accommodation of religious exercise is permitted.
• Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. (Re: Letter of Tony Valenciano; citing Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion. To this extent the Act therefore trespasses on the Religion Clauses. The restrictive obligations of a recipient institution under §751 (a) (2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. (Tilton v. Richardson, 403 U.S. 672, June 28, 1971)

When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. Moreover, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. (County of Allegheny v. ACLU, 492 U.S. 573, July 2, 1989)

It is not necessary that there be a direct governmental compulsion for the non-establishment clause to be violated. Enactment of laws which coerce or influence, directly or indirectly, any individual to follow a religion or irreligion is sufficient for the said clause to be violated. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

The expulsion or excommunication of members of a religious institution or organization is a matter best left to the discretion of church officials, and the laws and canons of said institution or organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)

Permitted Acts of the State Under the Establishment Clause

Jurisprudence

The holding of Catholic masses at the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation.

• There is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement.
• When judiciary employees attend the masses to profess their faith, it is at their own initiative, without any coercion from the judges or administrative officers.
• No government funds are being spent because the lightings and air conditioning continue to be operational even if there are no religious rituals there.
• The basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful.
• The allowance of the masses has not prejudiced other religions
• In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities. After any religious affair, the icons and images shall be hidden or concealed from public view. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19- SC, March 7, 2017)

Aglipay of the Philippine Independent Church sought to prohibit the issuance and sale of such stamps commemorating a Catholic Eucharistic Congress for violating the command that no public money should be appropriated to support any system of religion. The SC held that the statute contemplates no religious purpose. The stamps were not sold for the benefit of the Catholic Church, but merely to advertise the Philippines as the seat of the Eucharistic Congress. Thus, the resulting propaganda possibly in favor of the Catholic Church is merely incidental and should not frustrate the main purpose of the law, which is to generate profit and boost tourism. (Aglipay v. Ruiz, G.R. No. L-45459, March 13, 1937)

Government programs that neutrally provide benefits to a broad class of citizens and without reference to religion do not violate the non-establishment clause, as when government furnishes a disabled child enrolled in a sectarian school with a sign language interpreter to facilitate his education because the service is part of a general government program that neutrally distributes benefits to any child qualifying as disabled under the IDEA, without regard to the sectarian or non-sectarian or public or non-public nature of the school the child attends. Neither does the IDEA create a financial incentive for parents to choose a sectarian school. Most cases, where governmental aids were struck down, challenged programs which gave direct grants of government aid, relieving sectarian schools of costs they otherwise would have borne. In this case, the child is the primary beneficiary and whatever benefits that may accrue to the school is merely incidental. (Zobrest, et al. v. Catalina Foothills School District, 509 U.S. 1, June 18, 1993)

If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal. The barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses. Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Garces v. Estenzo, G.R. No. L-53487, May 25, 1981)

The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and children, not to schools. Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager record, the Court cannot agree with appellants that all teaching in a sectarian school is religious or that the intertwining of secular and religious training is such that secular textbooks furnished to students are in fact instrumental in teaching religion. (Board of Education v. Allen, 392 U.S. 236, June 10, 1968)

The menorah display does not have the prohibited effect of endorsing religion, given its "particular physical setting." Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsement. Similarly, the presence of the mayor's sign confirms that in the particular context the government's association with a religious symbol does not represent sponsorship of religious beliefs but simply a recognition of cultural diversity. Given all these considerations, it is not sufficiently likely that a reasonable observer would view the combined display as an endorsement or disapproval of his individual religious choices. (County of Allegheny v. ACLU, 492 U.S. 573, July 3, 1989)

The RH Law does not violate the Establishment Clause. The petitioners are misguided in their supposition that the State cannot enhance its population control program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the policies of any one religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Freedom to believe

Absolute as long as the belief is confined within the realm of thought. The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Everyone has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)

Basis

The basis of the free exercise clause is the respect for the inviolability of the human conscience. Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the outside manifestations of one's belief and faith. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Permitted Acts of the State Under the Free Exercise Clause

Under the U.S. rule in Employment Division v. Smith, the free exercise clause does not relieve one of the obligations to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids):

• If the law is not specifically directed to religious practice.
• If the law is constitutional as applied to those who engage in the specified act for non-religious purposes.

Under that U.S. rule, if the law is not specifically directed to religious practice and is applied equally to all, regardless of whether they do the act for religious or non-religious purposes, it does not offend the free exercise clause.

Under the U.S. rule in Employment Division v. Smith, the balancing of interests test, whereby government actions that substantially burden a religious practice must be justified by a compelling governmental interest, is inapplicable to an across-the-board criminal prohibition of a particular form of conduct. Otherwise, this would create an extraordinary right to ignore general laws in the name of religion for as long as no compelling State interest intervenes. (Employment Division v. Smith, 494 U.S. 872, April 17, 1990)

In Philippine law, the free exercise clause permits benevolent neutrality and religious accommodation. A generally applicable prohibition is not automatically exempt from compelling-state-interest analysis when it substantially burdens religious exercise. (1987 Constitution, Art. III, Sec. 5; Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006)

Under U.S. doctrine, not the Philippine benevolent-neutrality approach to religious accommodation, a law that burdens religious practice need not be justified by a compelling governmental interest, if it is a) neutral and b) of general applicability. However, when the law is not neutral or not of general application, the same must undergo the most rigorous of scrutiny:

• It must be justified by a compelling governmental interest.
• It must be narrowly tailored to advance the said interest. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11 1993)

The Supreme Court upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974)

Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974

Benjamin Victoriano, a member of the Iglesia ni Cristo religious sect, was employed by the Elizalde Rope Factory and was a member of the Elizalde Rope Workers' Union. The union's collective bargaining agreement with the company had a closed shop provision requiring all employees to be union members.

Victoriano, due to his religious beliefs, submitted his resignation from the union but the union did not take any action. When Victoriano reiterated his resignation, the union requested the company to dismiss him. Victoriano then filed an action for injunction to prevent his dismissal.

The Supreme Court ruled in favor of Victoriano, holding that Republic Act No. 3350, which exempted members of certain religious sects from the closed shop agreement, was constitutional. The court found that the law upholds the constitutional right to freedom of association by allowing members of these religious sects to choose whether or not to join labor unions, despite the closed shop agreement. The court rejected the union's arguments that the law impaired the obligation of contracts, violated the establishment clause, equal protection, or social justice policies. It held that the state has the authority to safeguard the interests of its people, and the law was based on substantial distinctions and applied equally to all members of the religious sects in question.

An exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however ‘bizarre’ those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. (Ebralinag v. Division Superintendent, G.R. No. 95770, March 1, 1993)

Ebralinag v. Division Superintendent, G.R. No. 95770, March 1, 1993

The case involved 25 students from Asturias, Cebu and 43 students from other towns in Cebu who were members of the Jehovah's Witnesses religious sect. They were expelled from public schools for refusing to participate in the flag ceremony, which included singing the national anthem, saluting the flag, and reciting the patriotic pledge.

The students and their parents filed petitions for certiorari, mandamus and prohibition, arguing that the expulsions violated their constitutional rights to freedom of religion, speech, and education.

The Supreme Court ruled in favor of the students, annulling the expulsion orders. The court held that the students' right to freedom of religion, which is entitled to the highest priority and amplest protection, outweighed the state's interest in enforcing flag ceremonies. The court distinguished this case from its previous rulings in Gerona v. Secretary of Education and Balbuna v. Secretary of Education, which had upheld the expulsion of students for refusing to participate in flag ceremonies. The court found that the students in this case did not engage in disruptive behavior, but rather stood quietly to show respect during the ceremonies.

City Ordinance No. 3000, as amended, which requires obtaining of a Mayor's permit before any person can engage in any of the businesses, trades or occupations enumerated therein, does not impose any charge upon the enjoyment of a right granted by the Constitution, nor tax the exercise of religious practices. Hence, it cannot be considered unconstitutional, even if applied to plaintiff Society. (American Bible Society v. City of Manila, G.R. No. L9637, April 30, 1957)

American Bible Society v. City of Manila, G.R. No. L9637, April 30, 1957

The case of American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957, involved a dispute between the American Bible Society (ABS) and the City of Manila over the society's activities in the Philippines. The ABS, a foreign non-stock, non-profit religious corporation, was selling Bibles and other religious materials in Manila without obtaining the necessary permits from the city. The city authorities required the ABS to secure a Mayor's permit and pay permit dues, citing Ordinances Nos. 2529 and 3000, which regulated business activities in the city.

The ABS challenged the ordinances, arguing that they were unconstitutional and illegal because they imposed religious censorship and restricted the free exercise of its religious profession. The society claimed that it was not engaged in a business that required a permit under existing laws and ordinances, and that it was exempt from paying municipal license fees or taxes.

The Supreme Court of the Philippines ruled that the ABS could not be charged the license fee under Ordinance No. 2529 for distributing religious literature, but could be required to obtain a Mayor's permit under Ordinance No. 3000, as amended. The Court distinguished the permissible Mayor's-permit requirement from the impermissible license fee on the exercise of religious freedom. The court found that the ordinances did not contain any provisions prescribing religious censorship or restraining the free exercise of the society's religious profession.

The case highlights the tension between the government's authority to regulate business activities and the protection of religious freedoms. The court's decision emphasizes the importance of balancing these competing interests to ensure that religious organizations are able to freely exercise their religious practices without undue interference from the state

The First Amendment does not prohibit the challenged regulation from being applied to petitioner even though its effect is to restrict the wearing of the headgear (yarmulke) required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations. Here, the Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and the challenged regulation reasonably and evenhandedly regulates dress in the interest of the military's perceived need for uniformity. (Goldman v. Weinberger, 475 U.S. 503, March 25, 1986)

Not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune from any secular regulation. The religious also have a secular existence. They exist within a society that is regulated by law. The tarpaulin, on its face, does not convey any religious doctrine of the Catholic church. That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015)

Goldman v. Weinberger, 475 U.S. 503, March 25, 1986

Goldman v. Weinberger, 475 U.S. 503 (1986), was a significant case where S. Simcha Goldman, an Orthodox Jewish Air Force officer, challenged Air Force regulations that prohibited him from wearing his yarmulke, a religious head covering. The Supreme Court, in a decision delivered on March 25, 1986, upheld the regulations, stating that military dress codes are reviewed under a more deferential standard due to the military's unique need for unity and obedience. The Court emphasized the government's interest in maintaining discipline and uniformity within the military, which outweighed individual religious freedoms in this context. The ruling highlighted the balance between religious rights and military necessity, affirming the Air Force's authority to enforce uniform dress regulations for the sake of maintaining order and discipline within the armed forces

Prohibited Acts of the State Under the Free Exercise Clause

A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. (Cantwell v. Connecticut, 310 U.S. 296, May 19, 1940)

The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Thus, the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents. This course was required by the First Amendment's guarantee of religious freedom. (United States v. Ballard, 322 U.S. 78, April 24, 1944).

The provisions of City Ordinance No. 2529, as amended, which requires the payment of license fee for conducting the business of general merchandise, cannot be applied to plaintiff society, for in doing so, it would impair its free exercise and enjoyment of its religious profession and worship, as well as its rights of dissemination of religious beliefs. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957)

The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. (Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972)

Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972

In the case of Wisconsin v. Yoder, 406 U.S. 205, decided on May 15, 1972, the United States Supreme Court ruled that Wisconsin's compulsory school attendance law was unconstitutional as applied to the Amish community. Three Amish fathers, Jonas Yoder, Wallace Miller, and Adin Yutzy, refused to enroll their children in school after the eighth grade, in accordance with their religious beliefs. The state of Wisconsin required children to attend school until age 16, leading to the fathers being fined for violating the law. The Supreme Court found that the Amish families' free exercise rights under the First Amendment outweighed the state's interest in compulsory education. The Court recognized the inseparable nature of the Amish way of life and their religious beliefs, concluding that further schooling would interfere with their religious development and integration into their lifestyle. Therefore, the Court exempted the Amish families from the Wisconsin law, stating that the state could not penalize them for not sending their children to school beyond the eighth grade.

The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and exemptions demonstrate that they were "gerrymandered" with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings. Although Ordinance 87-72 appears to apply to substantial nonreligious conduct and not to be overbroad, it must also be invalidated because it functions in tandem with the other ordinances to suppress Santeria religious worship. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11 1993)

Hypothetical Question: What if a religion is practicing animal sacrifice and the animal is a dog. Would it violate Animal Welfare Act of 1998 (Republic Act No. 8485), as amended by Republic Act No. 10631. ?

Lemon Test

Under the test stated in Lemon v. Kurtzman, 403 U.S. 602 (June 28, 1971), a challenged law satisfies the Establishment Clause only if:

• It has a secular legislative purpose;
• Its primary or principal effect neither advances nor inhibits religion; and
• It does not foster excessive entanglement with religion.

The Lemon test was the dominant framework for evaluating Establishment Clause challenges in the United States for nearly four decades. The U.S. Supreme Court later moved away from it. In Kennedy v. Bremerton School District (2022), the Court directed lower courts to use an approach based on historical practices and understandings rather than the Lemon test.

Agostini Test for Excessive Entanglement

To determine/assess excessive entanglement, the following must be taken into consideration:

• The character and purposes of the benefitted institutions;
• The nature of the aid that the State provides; and
• The resulting relationship between the government and religion, e. g., whether it was neutral and nonideological. (Agostini v. Felton, 521 U.S. 203, June 23, 1997)

Historically, the Agostini Test, as established in the case of Agostini v. Felton, was a modification of the Lemon Test used to evaluate cases involving the Establishment Clause of the First Amendment. The Agostini Test consisted of two prongs: purpose and effect. This modification retained separate purpose and effect inquiries and considered excessive entanglement as part of the effect inquiry. The Agostini Test focused on assessing whether a government action had a secular purpose and whether its primary effect neither advanced nor inhibited religion. It is not the current general U.S. Establishment Clause framework: Kennedy v. Bremerton School District, 597 U.S. 507 (2022), abandoned Lemon and its endorsement-test offshoot.

Mitchell Test for Determining a Statute’s Effect

Three primary criteria for determining whether a statute/government aid has the effect of advancing religion:

• If it results in governmental indoctrination;
• If it defines its recipients by reference to religion; or
• If it creates an excessive entanglement.

The US Supreme Court further held that under the neutrality principle, aid that is offered to a broad range of groups or persons without regard to religion are valid. One way to assure the said neutrality is through the principle of private choice, wherein neutral aid directed to individuals may reach a religious school through their genuinely independent choices; such aid is indirect, unlike aid provided directly to a school. (Mitchell v. Helms, 530 US 793, June 28 2000)

The right of the people to information on matters of public concern shall be recognized. (Phil Const., art. III, § 7)

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Phil Const., art. II, § 28)

Separation of Church and State

The concept of separation of church and state is a fundamental principle in political law that defines the relationship between religious organizations and the state. This concept is rooted in the idea that the government may not unduly burden religious exercise, although religious conduct may be regulated by valid laws consistent with the Free Exercise Clause, nor should religious organizations dictate government policies or actions. The separation of church and state is crucial for maintaining religious freedom, preventing the establishment of a state religion, and ensuring that the government remains neutral in matters of faith.

The idea of separating church and state has its roots in the 16th century European conflicts between church and state. The concept gained significant momentum during the Enlightenment, particularly through the works of thinkers like John Locke, who emphasized the importance of individual rights and the limitations of government power

The separation of church and state means that the government may not establish a religion or prohibit its free exercise; regulation affecting religious conduct must comply with constitutional free-exercise protections. It also means that religious organizations cannot use the government to impose their religious values on citizens, nor can the government use its power to force people to follow certain religious practices or beliefs

The separation of church and state is essential for several reasons:

• Religious Freedom: It ensures that individuals can practice their faith without government interference or coercion, allowing for a diverse range of religious beliefs and practices to coexist peacefully.
• Prevention of Establishment of a State Religion: It prevents the government from creating an official religion, which could lead to discrimination against non-believers or those who practice different faiths.
• Neutrality in Matters of Faith: It ensures that the government remains impartial in matters of faith, avoiding any appearance of favoritism or bias towards a particular religion.
• Protection of Minority Religions: It safeguards the rights of minority religious groups by preventing the government from giving preferential treatment to dominant religions.