1
Republic of the Philippines declarations were executed,10 and recorded in the Watch Tower
SUPREME COURT
Manila
EN BANC
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite.
Respondent Soledad Escritor once again stands before the Court
invoking her religious freedom and her Jehovah God in a bid to save
her family united without the benefit of legal marriage - and
livelihood. The State, on the other hand, seeks to wield its power to
regulate her behavior and protect its interest in marriage and family
and the integrity of the courts where respondent is an employee. How
the Court will tilt the scales of justice in the case at bar will decide not
only the fate of respondent Escritor but of other believers coming to
Court bearing grievances on their free exercise of religion. This case
comes to us from our remand to the Office of the Court Administrator
on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant
Alejandro Estrada requested Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Pias City, for an
investigation of respondent Soledad Escritor, court interpreter in said
court, for living with a man not her husband, and having borne a child
within this live-in arrangement. Estrada believes that Escritor is
committing an immoral act that tarnishes the image of the court, thus
she should not be allowed to remain employed therein as it might
appear that the court condones her act. 2 Consequently, respondent
was charged with committing "disgraceful and immoral conduct"
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in
1999, she was already a widow, her husband having died in
1998.4 She admitted that she started living with Luciano Quilapio, Jr.
without the benefit of marriage more than twenty years ago when her
husband was still alive but living with another woman. She also
admitted that she and Quilapio have a son. 5 But as a member of the
religious sect known as the Jehovahs Witnesses and the Watch
Tower and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the
approval of her congregation.6 In fact, after ten years of living
together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."7
For Jehovahs Witnesses, the Declaration allows members of the
congregation who have been abandoned by their spouses to enter
into marital relations. The Declaration thus makes the resulting union
moral and binding within the congregation all over the world except in
countries where divorce is allowed. As laid out by the tenets of their
faith, the Jehovahs congregation requires that at the time the
declarations are executed, the couple cannot secure the civil
authorities approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good
standing may execute the Declaration, which requires the approval of
the elders of the congregation. As a matter of practice, the marital
status of the declarants and their respective spouses commission of
adultery are investigated before the declarations are
executed.8 Escritor and Quilapios declarations were executed in the
usual and approved form prescribed by the Jehovahs
Witnesses,9 approved by elders of the congregation where the
Central Office.11
Moreover, the Jehovahs congregation believes that once all legal
impediments for the couple are lifted, the validity of the declarations
ceases, and the couple should legalize their union. In Escritors case,
although she was widowed in 1998, thereby lifting the legal
impediment to marry on her part, her mate was still not capacitated to
remarry. Thus, their declarations remained valid. 12 In sum, therefore,
insofar as the congregation is concerned, there is nothing immoral
about the conjugal arrangement between Escritor and Quilapio and
they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not
constitute disgraceful and immoral conduct for which she should be
held administratively liable,13 the Court had to determine the contours
of religious freedom under Article III, Section 5 of the Constitution,
which provides, viz:
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
required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous
scrutiny into the origins and development of the religion clauses in the
United States (U.S.) and the Philippines, we held that in resolving
claims involving religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the religion clauses in our Constitution; and
(2) in deciding respondents plea of exemption based on the Free
Exercise Clause (from the law with which she is administratively
charged), it is the compelling state interest test, the strictest test,
which must be applied.14
Notwithstanding the above rulings, the Court could not, at that time,
rule definitively on the ultimate issue of whether respondent was to be
held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling
interest" to defeat the claim of the respondent to religious freedom.
Thus, in the decision dated August 4, 2003, we remanded the
complaint to the Office of the Court Administrator (OCA), and ordered
the Office of the Solicitor General (OSG) to intervene in the case so it
can:
(a) examine the sincerity and centrality of respondents claimed
religious belief and practice;
(b) present evidence on the states "compelling interest" to override
respondents religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the
least restrictive to respondents religious freedom. 15
It bears stressing, therefore, that the residual issues of the case
pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE
IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE
PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF
EXEMPTION BASED ON FREEDOM OF RELIGION. These issues
have already been ruled upon prior to the remand, and constitute "the
law of the case" insofar as they resolved the issues of which
framework and test are to be applied in this case, and no motion for
its reconsideration having been filed.16 The only task that the Court is
left to do is to determine whether the evidence adduced by the State
proves its more compelling interest. This issue involves a pure
question of fact.
B. Law of the case
 2
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of
this case interpreting the religious clauses of the Constitution, made
more than two years ago, is misplaced to say the least. Since neither
the complainant, respondent nor the government has filed a motion
for reconsideration assailing this ruling, the same has attained finality
and constitutes the law of the case. Any attempt to reopen this final
ruling constitutes a crass contravention of elementary rules of
procedure. Worse, insofar as it would overturn the parties right to rely
upon our interpretation which has long attained finality, it also runs
counter to substantive due process.
Be that as it may, even assuming that there were no procedural and
substantive infirmities in Mr. Justice Carpios belated attempts to
disturb settled issues, and that he had timely presented his
arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old
World antecedents of the religion clauses, because "one cannot
understand, much less intelligently criticize the approaches of the
courts and the political branches to religious freedom in the recent
past in the United States without a deep appreciation of the roots of
these controversies in the ancient and medieval world and in the
American experience."17 We delved into the conception of religion
from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to
God.18 Then, religion developed on its own and became superior to
the state,19 its subordinate,20 and even becoming an engine of state
policy.21
We ascertained two salient features in the review of religious history:
First, with minor exceptions, the history of church-state relationships
was characterized by persecution, oppression, hatred, bloodshed,
and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed
the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane
benefits conferred by ambitious princes and emperors in exchange for
religions invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy
and in human history. 22
Strictly speaking, the American experiment of freedom and separation
was not translated in the First Amendment. That experiment had been
launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to
deal with religion. As James Madison said, the national government
had no "jurisdiction" over religion or any "shadow of right to
intermeddle" with it. 23
The omission of an express guaranty of religious freedom and other
natural rights, however, nearly prevented the ratification of the
Constitution. The restriction had to be made explicit with the adoption
of the religion clauses in the First Amendment as they are worded to
this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the
absence of power.24 It commands, in two parts (with the first part
usually referred to as the Establishment Clause and the second part,
the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted,
were not designed to serve contradictory purposes. They have a
single goalto promote freedom of individual religious beliefs and
practices. In simplest terms, the Free Exercise Clause prohibits
government from inhibiting religious beliefs with penalties for religious
beliefs and practice, while the Establishment Clause prohibits
government from inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion clauses were
intended to deny government the power to use either the carrot or the
stick to influence individual religious beliefs and practices. 26
In sum, a review of the Old World antecedents of religion shows the
movement of establishment of religion as an engine to promote state
interests, to the principle of non-establishment to allow the free
exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses interpretation and
construction in the United States, not because we are bound by their
interpretation, but because the U.S. religion clauses are the
precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be discussed
later on.
At the outset, it is worth noting that American jurisprudence in this
area has been volatile and fraught with inconsistencies whether within
a Court decision or across decisions. For while there is widespread
agreement regarding the value of the First Amendment religion
clauses, there is an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as
regards its exact meaning and the paucity of records in the U.S.
Congress renders it difficult to ascertain its meaning. 27
U.S. history has produced two identifiably different, even opposing,
strains of jurisprudence on the religion clauses. First is the standard of
separation, which may take the form of either (a) strict separation or
(b) the tamer version of strict neutrality or separation, or what Mr.
Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the
former, both are anchored on the Jeffersonian premise that a "wall of
separation" must exist between the state and the Church to protect
the state from the church. 28 Both protect the principle of church-state
separation with a rigid reading of the principle. On the other hand, the
second standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of separation is meant to protect
the church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was
meant to protect the state from the church, and the states hostility
towards religion allows no interaction between the two. According to
this Jeffersonian view, an absolute barrier to formal interdependence
of religion and state needs to be erected. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could
the state adjust its secular programs to alleviate burdens the
programs placed on believers.29 Only the complete separation of
religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a
strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded
in American history and contemporary practice that enormous
amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from
religion.31 For example, less than twenty-four hours after Congress
adopted the First Amendments prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to
God Almighty for the many blessings enjoyed by the nation with a
resolution in favor of a presidential proclamation declaring a national
day of Thanksgiving and Prayer.32 Thus, strict separationists are
caught in an awkward position of claiming a constitutional principle
that has never existed and is never likely to. 33
The tamer version of the strict separationist view, the strict neutrality
or separationist view, (or, the governmental neutrality theory) finds
basis in Everson v. Board of Education, 34 where the Court declared
that Jeffersons "wall of separation" encapsulated the meaning of the
 3
First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require
the state to be their adversary. Rather, the state must be neutral in its
relations with groups of religious believers and non-believers. "State
power is no more to be used so as to handicap religions than it is to
favor them."35 The strict neutrality approach is not hostile to religion,
but it is strict in holding that religion may not be used as a basis for
classification for purposes of governmental action, whether the action
confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not
permit, much less require, accommodation of secular programs to
religious belief.36
The problem with the strict neutrality approach, however, is if applied
in interpreting the Establishment Clause, it could lead to a de facto
voiding of religious expression in the Free Exercise Clause. As
pointed out by Justice Goldberg in his concurring opinion in Abington
School District v. Schempp, 37 strict neutrality could lead to "a brooding
and pervasive devotion to the secular and a passive, or even active,
hostility to the religious" which is prohibited by the
Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with
the very idea of a free exercise clause. The Framers, whatever
specific applications they may have intended, clearly envisioned
religion as something special; they enacted that vision into law by
guaranteeing the free exercise of religion but not, say, of philosophy
or science. The strict neutrality approach all but erases this distinction.
Thus it is not surprising that the [U.S.] Supreme Court has rejected
strict neutrality, permitting and sometimes mandating religious
classifications.39
Thus, the dilemma of the separationist approach, whether in the form
of strict separation or strict neutrality, is that while the Jeffersonian
wall of separation "captures the spirit of the American ideal of church-
state separation," in real life, church and state are not and cannot be
totally separate. This is all the more true in contemporary times when
both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of
government and religion at many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on
a different view of the "wall of separation," associated with Williams,
founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to
protect the church from the state. 41 This doctrine was expressed in
Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly.
Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners
into their places of worship would violate the Constitution. Prayers in
our legislative halls; the appeals to the Almighty in the messages of
the Chief Executive; the proclamations making Thanksgiving Day a
holiday; "so help me God" in our courtroom oaths- these and all other
references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with which
the Court opens each session: "God save the United States and this
Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . .
When the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it
follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their effective
scope of religious influence. 43
Benevolent neutrality recognizes that religion plays an important role
in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We
Trust" on American currency; the recognition of America as "one
nation under God" in the official pledge of allegiance to the flag; the
Supreme Courts time-honored practice of opening oral argument with
the invocation "God save the United States and this Honorable
Court"; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to
lead representatives in prayer. These practices clearly show the
preference for one theological viewpointthe existence of and
potential for intervention by a godover the contrary theological
viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of
poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral
dimension. 44
Examples of accommodations in American jurisprudence also
abound, including, but not limited to the U.S. Court declaring the
following acts as constitutional: a state hiring a Presbyterian minister
to lead the legislature in daily prayers, 45 or requiring employers to pay
workers compensation when the resulting inconsistency between
work and Sabbath leads to discharge; 46 for government to give money
to religiously-affiliated organizations to teach adolescents about
proper sexual behavior;47 or to provide religious school pupils with
books;48 or bus rides to religious schools; 49 or with cash to pay for
state-mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in
the Religion clauses are invoked in relation to governmental action,
almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits
religion will be challenged as unconstitutional, either because it
violates the Free Exercise Clause or the Establishment Clause or
both. This is true whether one subscribes to the separationist
approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have
a secular purpose and general applicability, but may incidentally or
inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a "burdensome
effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not
to promote the governments favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance.
The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a persons or institutions religion. As Justice
Brennan explained, the "government [may] take religion into
accountto exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise
may flourish."51 In the ideal world, the legislature would recognize the
religions and their practices and would consider them, when practical,
in enacting laws of general application. But when the legislature fails
to do so, religions that are threatened and burdened may turn to the
courts for protection.52
Thus, what is sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but an
 4
exemption from its application or its "burdensome effect," whether by
the legislature or the courts. 53 Most of the free exercise claims brought
to the U.S. Court are for exemption, not invalidation of the facially
neutral law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of
accommodation in the U.S. blossomed in the case of Sherbert v.
Verner,55 which ruled that state regulation that indirectly restrains or
punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause. 56 According to Sherbert,
when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so
paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment was
terminated for refusal to work on Saturdays on religious grounds. Her
claim was denied. She sought recourse in the Supreme Court. In
laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind
within the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellants
constitutional challenge, it must be either because her disqualification
as a beneficiary represents no infringement by the State of her
constitutional right of free exercise, or because any incidental burden
on the free exercise of appellants religion may be justified by a
"compelling state interest in the regulation of a subject within the
States constitutional power to regulate. . . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, [o]nly the
gravest abuses, endangering paramount interests, give occasion for
permissible limitation."58 The Court found that there was no such
compelling state interest to override Sherberts religious liberty. It
added that even if the state could show that Sherberts exemption
would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon
the state to show that no alternative means of regulations would
address such detrimental effects without infringing religious liberty.
The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial
of Sherberts benefits would force her to choose between receiving
benefits and following her religion. This choice placed "the same kind
of burden upon the free exercise of religion as would a fine imposed
against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some "compelling
state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government
action burdens, even inadvertently, a sincerely held religious belief or
practice, the state must justify the burden by demonstrating that the
law embodies a compelling interest, that no less restrictive alternative
exists, and that a religious exemption would impair the states ability
to effectuate its compelling interest. As in other instances of state
action affecting fundamental rights, negative impacts on those rights
demand the highest level of judicial scrutiny. After Sherbert, this strict
scrutiny balancing test resulted in court-mandated religious
exemptions from facially-neutral laws of general application whenever
unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again
ruled that religious exemption was in order, notwithstanding that the
law of general application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of Amish parents for
violating Wisconsin compulsory school-attendance laws. The Court, in
effect, granted exemption from a neutral, criminal statute that
punished religiously motivated conduct. Chief Justice Burger, writing
for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under
the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally
firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the
expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is
that only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of
religion. . .
. . . our decisions have rejected the idea that religiously grounded
conduct is always outside the protection of the Free Exercise Clause.
It is true that activities of individuals, even when religiously based, are
often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare,
or the Federal government in the exercise of its delegated powers . . .
But to agree that religiously grounded conduct must often be subject
to the broad police power of the State is not to deny that there are
areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore,
does not become easier because respondents were convicted for
their "actions" in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in
logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a)
free exercise clause claims were subject to heightened scrutiny or
compelling interest test if government substantially burdened the
exercise of religion; (b) heightened scrutiny or compelling interest test
governed cases where the burden was direct, i.e., the exercise of
religion triggered a criminal or civil penalty, as well as cases where
the burden was indirect, i.e., the exercise of religion resulted in the
forfeiture of a government benefit;63 and (c) the Court could carve out
accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action
was protectedconduct beyond speech, press, or worship was
included in the shelter of freedom of religion. Neither Sherberts
refusal to work on the Sabbath nor the Amish parents refusal to let
their children attend ninth and tenth grades can be classified as
conduct protected by the other clauses of the First Amendment.
Second, indirect impositions on religious conduct, such as the denial
of twenty-six weeks of unemployment insurance benefits to Adel
Sherbert, as well as direct restraints, such as the criminal prohibition
at issue in Yoder, were prohibited. Third, as the language in the two
cases indicate, the protection granted was extensive. Only extremely
strong governmental interests justified impingement on religious
conduct, as the absolute language of the test of the Free Exercise
Clause suggests. 64
Fourth, the strong language was backed by a requirement that the
government provide proof of the important interest at stake and of the
dangers to that interest presented by the religious conduct at issue.
Fifth, in determining the injury to the governments interest, a court
was required to focus on the effect that exempting religious claimants
 5
from the regulation would have, rather than on the value of the
regulation in general. Thus, injury to governmental interest had to be
measured at the margin: assuming the law still applied to all others,
what would be the effect of exempting the religious claimant in this
case and other similarly situated religious claimants in the future?
Together, the fourth and fifth elements required that facts, rather than
speculation, had to be presented concerning how the governments
interest would be harmed by excepting religious conduct from the law
being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise
jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests. The fourth and the fifth
elements prevented the likelihood of exaggeration of the weight on
the governmental interest side of the balance, by not allowing
speculation about the effects of a decision adverse to those interests
nor accepting that those interests would be defined at a higher level of
generality than the constitutional interests on the other side of the
balance. 66
Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public
policies that collided with religious practices. Although the members of
the U.S. Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and
separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that under Sherbert and
Yoder, the Free Exercise Clause provided individuals some form of
heightened scrutiny protection, if not always a compelling interest
one.68 The 1990 case of Employment Division, Oregon Department of
Human Resources v. Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law
prohibiting use of peyote, a hallucinogenic substance. Specifically,
individuals challenged the states determination that their religious use
of peyote, which resulted in their dismissal from employment, was
misconduct disqualifying them from receipt of unemployment
compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free
exercise of religion required an exemption from an otherwise valid
law. Scalia said that "[w]e have never held that an individuals
religious beliefs excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate. On the
contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition." 71 Scalia thus declared
"that the right of free exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability of the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes)." 72
Justice Scalias opinion then reviewed the cases where free exercise
challenges had been upheldsuch as Cantwell, Murdock, Follet,
Pierce, and Yoderand said that none involved the free exercise
clause claims alone. All involved "the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of
speech and of the press, or the right of parents to direct the education
of their children." 73 The Court said that Smith was distinguishable
because it did not involve such a "hybrid situation," but was a free
exercise claim "unconnected with any communicative activity or
parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only
in the context of the denial of unemployment benefits; it did not create
a basis for an exemption from criminal laws. Scalia wrote that "[e]ven
if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges
to neutral laws of general applicability that burden religion. Justice
Scalia said that "[p]recisely because we are a cosmopolitan nation
made up of people of almost conceivable religious preference, and
precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied
to the religious objector, every regulation of conduct that does not
protect an interest of the highest order." The Court said that those
seeking religious exemptions from laws should look to the democratic
process for protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or
heightened scrutiny and the compelling justification approach were
abandoned for evaluating laws burdening religion; neutral laws of
general applicability only have to meet the rational basis test, no
matter how much they burden religion. 77
Justice OConnor wrote a concurring opinion sharply criticizing the
rejection of the compelling state interest test, asserting that "(t)he
compelling state interest test effectuates the First Amendments
command that religious liberty is an independent liberty, that it
occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest of the highest
order."78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First
Amendments mandate of preserving religious liberty to the fullest
extent possible in a pluralistic society." 79
Justice OConnor also disagreed with the majoritys description of
prior cases and especially its leaving the protection of minority
religions to the political process. She said that, "First Amendment was
enacted precisely to protect the rights of those whose religious
practice are not shared by the majority and may be viewed with
hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by
Justices Brennan and Marshall. The dissenting Justices agreed with
Justice OConnor that the majority had mischaracterized precedents,
such as in describing Yoder as a "hybrid" case rather than as one
under the free exercise clause. The dissent also argued that strict
scrutiny should be used in evaluating government laws burdening
religion. 81
Criticism of Smith was intense and widespread. 82 Academics,
Justices, and a bipartisan majority of Congress noisily denounced the
decision.83 Smith has the rather unusual distinction of being one case
that is almost universally despised (and this is not too strong a word)
by both the liberals and conservatives. 84 Liberals chasten the Court
for its hostility to minority faiths which, in light of Smiths general
applicability rule, will allegedly suffer at the hands of the majority faith
whether through outright hostility or neglect. Conservatives bemoan
the decision as an assault on religious belief leaving religion, more
than ever, subject to the caprice of an ever more secular nation that is
increasingly hostile to religious belief as an oppressive and archaic
anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and
has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.86 First, the First amendment was intended to
protect minority religions from the tyranny of the religious and political
majority. 87 Critics of Smith have worried about religious minorities,
who can suffer disproportionately from laws that enact majoritarian
mores.88 Smith, in effect would allow discriminating in favor of
mainstream religious groups against smaller, more peripheral groups
who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions
and Smith virtually wiped out their judicial recourse for
exemption.91 Second, Smith leaves too much leeway for pervasive
welfare-state regulation to burden religion while satisfying neutrality.
After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion. 92 Government impairment of
religious liberty would most often be of the inadvertent kind as in
Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If
the Free Exercise Clause could not afford protection to inadvertent
interference, it would be left almost meaningless. 93 Third, the
Reynolds-Gobitis-Smith94doctrine simply defies common sense. The
state should not be allowed to interfere with the most deeply held
 6
fundamental religious convictions of an individual in order to pursue
some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on
religion.95
At bottom, the Courts ultimate concern in Smith appeared to be two-
fold: (1) the difficulty in defining and limiting the term "religion" in
todays pluralistic society, and (2) the belief that courts have no
business determining the significance of an individuals religious
beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it
must protect virtually nothing. As a result, the Court perceives its only
viable options are to leave free exercise protection to the political
process or to allow a "system in which each conscience is a law unto
itself." 96 The Courts characterization of its choices have been
soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two
viable options, then admittedly, the Court has a stronger argument.
But the Free Exercise Clause cannot be summarily dismissed as too
difficult to apply and this should not be applied at all. The Constitution
does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of
"religion" must be protected. Accordingly, the Constitution compels the
Court to struggle with the contours of what constitutes "religion."
There is no constitutional opt-out provision for constitutional words
that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between
the Courts two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult
issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific
law. The Court describes the results of this middle ground where
"federal judges will regularly balance against the importance of
general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to
contemplate."
It is not clear whom the Court feels would be most hurt by this "parade
of horribles." Surely not religious individuals; they would undoubtedly
prefer their religious beliefs to be probed for sincerity and significance
rather than acquiesce to the Courts approach of simply refusing to
grant any constitutional significance to their beliefs at all. If the Court
is concerned about requiring lawmakers at times constitutionally to
exempt religious individuals from statutory provisions, its concern is
misplaced. It is the lawmakers who have sought to prevent the Court
from dismantling the Free Exercise Clause through such legislation as
the [Religious Freedom Restoration Act of 1993], and in any case, the
Court should not be overly concerned about hurting legislatures
feelings by requiring their laws to conform to constitutional dictates.
Perhaps the Court is concerned about putting such burden on judges.
If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional
interpreters is a burden no judge should be expected to fulfill. 97
Parenthetically, Smiths characterization that the U.S. Court has
"never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the
state is free to regulate"an assertion which Mr. Justice Carpio
adopted unequivocally in his dissenthas been sharply criticized
even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments
that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the
Smith decision made shocking use of precedent]those points were
often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to
distinguish the exemption made in Yoder, by asserting that these were
premised on two constitutional rights combinedthe right of parents
to direct the education of their children and the right of free exercise of
religion. Under the Courts opinion in Smith, the right of free exercise
of religion standing alone would not allow Amish parents to disregard
the compulsory school attendance law, and under the Courts opinion
in Yoder, parents whose objection to the law was not religious would
also have to obey it. The fatal flaw in this argument, however, is that if
two constitutional claims will fail on its own, how would it prevail if
combined?99 As for Sherbert, the Smith Court attempted to limit its
doctrine as applicable only to denials of unemployment compensation
benefits where the religiously-compelled conduct that leads to job loss
is not a violation of criminal law. And yet, this is precisely why the
rejection of Sherbert was so damaging in its effect: the religious
person was more likely to be entitled to constitutional protection when
forced to choose between religious conscience and going to jail than
when forced to choose between religious conscience and financial
loss. 100
Thus, the Smith decision elicited much negative public reaction
especially from the religious community, and commentaries insisted
that the Court was allowing the Free Exercise Clause to
disappear.101 So much was the uproar that a majority in Congress was
convinced to enact the Religious Freedom Restoration Act (RFRA) of
1993.102 The RFRA was adopted to negate the Smith test and require
strict scrutiny for free exercise claims. Indeed, the findings section of
the Act notes that Smith "virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws
neutral toward religion."103 The Act declares that its purpose is to
restore the compelling interest test as set forth in Sherbert v. Verner
and Wisconsin v. Yoder, and to guarantee its application in all cases
where free exercise of religion is substantially burdened; and to
provide a claim of defense to a person whose religious exercise is
substantially burdened by government.104 The RFRA thus sought to
overrule Smith and make strict scrutiny the test for all free exercise
clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared
the RFRA unconstitutional, ruling that Congress had exceeded its
power under the Fourteenth Amendment in enacting the law. The
Court ruled that Congress is empowered to enact laws "to enforce the
amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court
was accused of lack of judicial respect for the constitutional decision-
making by a coordinate branch of government. In Smith, Justice
Scalia wrote:
"Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the
political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws
that affirmatively foster the dissemination of the printed word, so also
a society that believes in the negative protection accorded to religious
belief can be expected to be solicitous of that value in its legislation as
well."
By invalidating RFRA, the Court showed a marked disrespect of the
solicitude of a nearly unanimous Congress. Contrary to the Courts
characterization of the RFRA as a kind of usurpation of the judicial
power to say what the Constitution means, the law offered no
definition of Free Exercise, and on its face appeared to be a
procedural measure establishing a standard of proof and allocating
the duty of meeting it. In effect, the Court ruled that Congress had no
power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to
act towards the states in matters of religion arises from the Fourteenth
Amendment. 108
From the foregoing, it can be seen that Smith, while expressly
recognizing the power of legislature to give accommodations, is in
effect contrary to the benevolent neutrality or accommodation
approach. Moreover, if we consider the history of the incorporation of
the religion clauses in the U.S., the decision in Smith is grossly
inconsistent with the importance placed by the framers on religious
faith. Smith is dangerous precedent because it subordinates
fundamental rights of religious belief and practice to all neutral,
general legislation. Sherbert recognized the need to protect religious
exercise in light of the massive increase in the size of government,
 7
the concerns within its reach, and the number of laws administered by
it. However, Smith abandons the protection of religious exercise at a
time when the scope and reach of government has never been
greater. It has been pointed out that Smith creates the legal
framework for persecution: through general, neutral laws, legislatures
are now able to force conformity on religious minorities whose
practice irritate or frighten an intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause.
Smith left religious freedom for many in the hands of the political
process, exactly where it would be if the religion clauses did not exist
in the Bill of Rights. Like most protections found in the Bill of Rights,
the religion clauses of the First Amendment are most important to
those who cannot prevail in the political process. The Court in Smith
ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because
mainstream religions generally have been successful in protecting
their interests through the political process, it is the non-mainstream
religions that are adversely affected by Smith. In short, the U.S.
Supreme Court has made it clear to such religions that they should
not look to the First Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation:
(a) those which are found to be constitutionally compelled, i.e.,
required by the Free Exercise Clause; (b) those which are
discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and
(c) those which the religion clauses prohibit.111
Mandatory accommodation results when the Court finds that
accommodation is required by the Free Exercise Clause, i.e, when
the Court itself carves out an exemption. This accommodation occurs
when all three conditions of the compelling interest test are met, i.e, a
statute or government action has burdened claimants free exercise of
religion, and there is no doubt as to the sincerity of the religious belief;
the state has failed to demonstrate a particularly important or
compelling governmental goal in preventing an exemption; and that
the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious
conscience is so great and the advancement of public purposes is
incomparable that only indifference or hostility could explain a refusal
to make exemptions. Thus, if the states objective could be served as
well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, the Court must grant
the exemption. The Yoder case is an example where the Court held
that the state must accommodate the religious beliefs of the Amish
who objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held that
the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but
is not required to, accommodate religious interests. The U.S. Walz
case illustrates this situation where the U.S. Supreme Court upheld
the constitutionality of tax exemption given by New York to church
properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause." 113 Other
examples are Zorach v. Clauson, 114 allowing released time in public
schools and Marsh v. Chambers, 115 allowing payment of legislative
chaplains from public funds. Parenthetically, the Court in Smith has
ruled that this is the only accommodation allowed by the Religion
Clauses.
Finally, when the Court finds no basis for a mandatory
accommodation, or it determines that the legislative accommodation
runs afoul of the establishment or the free exercise clause, it results to
a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the
Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.116 An example where accommodation was
prohibited is McCollum v. Board of Education, 117 where the Court ruled
against optional religious instruction in the public school premises. 118
Given that a free exercise claim could lead to three different results,
the question now remains as to how the Court should determine
which action to take. In this regard, it is the strict scrutiny-compelling
state interest test which is most in line with the benevolent neutrality-
accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the
First Amendment is that freedom to carry out ones duties to a
Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Religious freedom is seen as a substantive right
and not merely a privilege against discriminatory legislation. With
religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain
circumstances.
Considering that laws nowadays are rarely enacted specifically to
disable religious belief or practice, free exercise disputes arise
commonly when a law that is religiously neutral and generally
applicable on its face is argued to prevent or burden what someones
religious faith requires, or alternatively, requires someone to
undertake an act that faith would preclude. In essence, then, free
exercise arguments contemplate religious exemptions from otherwise
general laws.119
Strict scrutiny is appropriate for free exercise challenges because
"[t]he compelling interest test reflects the First Amendments mandate
of preserving religious liberty to the fullest extent possible in a
pluralistic society.120Underlying the compelling state interest test is the
notion that free exercise is a fundamental right and that laws
burdening it should be subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step
process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the
free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to
the accomplishment of some important (or compelling) secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does
not, the plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent, coherent,
clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the
Free Exercise Clause; secular beliefs, however sincere and
conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the
religion clauses using either the separationist approach, or the
benevolent neutrality approach. The benevolent neutrality approach
has also further been split by the view that the First Amendment
requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in
Smith, however, is that that there are no required accommodation
under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution,
Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against
that of the Philippines, it is immediately clear that one cannot simply
conclude that we have adoptedlock, stock and barrelthe religion
clauses as embodied in the First Amendment, and therefore, the U.S.
Courts interpretation of the same. Unlike in the U.S. where legislative
exemptions of religion had to be upheld by the U.S. Supreme Court
as constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own constitutions.
 8
Thus, our 1935, 1973 and 1987 Constitutions contain provisions on
tax exemption of church property,123 salary of religious officers in
government institutions,124 and optional religious instruction. 125 Our
own preamble also invokes the aid of a divine being. 126 These
constitutional provisions are wholly ours and have no counterpart in
the U.S. Constitution or its amendments. They all reveal without doubt
that the Filipino people, in adopting these constitutions, manifested
their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses. 127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia
was erroneous insofar as it asserted that the 1935 Constitution
incorporates the Walz ruling as this case was decided subsequent to
the 1935 Constitution is a misreading of the ponencia. What the
ponencia pointed out was that even as early as 1935, or more than
three decades before the U.S. Court could validate the exemption in
Walz as a form or permissible accommodation, we have already
incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitutions
departure from the U.S. Constitution, insofar as religious
accommodations are concerned. It is indubitable that benevolent
neutrality-accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the Philippine
Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the
U.S. Constitution xxxx Philippine jurisprudence and commentaries on
the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus,
when a religion clause case comes before the Court, a separationist
approach or a benevolent neutrality approach might be adopted and
each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court in
Everson supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion
clauses history. As a result, in a case where the party claims religious
liberty in the face of a general law that inadvertently burdens his
religious exercise, he faces an almost insurmountable wall in
convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and
1935 Constitutions as shown by other provisions on religion in all
three constitutions. It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a
manner that will give to all of them full force and effect. From this
construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution. 129 [citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S.
Courts interpretation of the religion clauses to effectively deny
accommodations on the sole basis that the law in question is neutral
and of general application. For even if it were true that "an unbroken
line of U.S. Supreme Court decisions" has never held that "an
individuals religious beliefs [do not] excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to
regulate," our own Constitutions have made significant changes to
accommodate and exempt religion. Philippine jurisprudence shows
that the Court has allowed exemptions from a law of general
application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila, 131 the Court
granted to plaintiff exemption from a law of general application based
on the Free Exercise Clause. In this case, plaintiff was required by an
ordinance to secure a mayors permit and a municipal license as
ordinarily required of those engaged in the business of general
merchandise under the citys 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."
Although the Court categorically held that the questioned ordinances
were not applicable to plaintiff as it was not engaged in the business
or occupation of selling said "merchandise" for profit, it also ruled that
applying the ordinance to plaintiff and requiring it to secure a license
and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious
beliefs "as the power to tax the exercise of a privilege is the power to
control or suppress its enjoyment." The decision states in part, viz:
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. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The
Division Superintendent of Schools. 132 The case involved several
Jehovahs Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of 1987. In resolving
the religious freedom issue, a unanimous Court overturned an earlier
ruling denying such exemption, 133 using the "grave and imminent
danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise
of religious freedom (according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German v. Barangan, 135
SCRA 514, 517) 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.134(emphases supplied)
In these two cases, the Court itself carved out an exemption from a
law of general application, on the strength directly of the Free
Exercise Clause.
We also have jurisprudence that supports permissive
accommodation. The case of Victoriano v. Elizalde Rope Workers
135
Union is an example of the application of Mr. Justice Carpios theory
of permissive accommodation, where religious exemption is granted
by a legislative act. In Victoriano, the constitutionality of Republic Act
No. 3350 was questioned. The said R.A. exempt employees from the
application and coverage of a closed shop agreementmandated in
another lawbased on religious objections. A unanimous Court
upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if
the incidental result would be favorable to a religion or sect."
Interestingly, the secular purpose of the challenged law which the
Court upheld was the advancement of "the constitutional right to the
free exercise of religion."136
Having established that benevolent neutrality-accommodation is the
framework by which free exercise cases must be decided, the next
question then turned to the test that should be used in ascertaining
the limits of the exercise of religious freedom. In our Decision dated
August 4, 2003, we reviewed our jurisprudence, and ruled that in
cases involving purely conduct based on religious belief, as in the
case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise Clause,
American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to
be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden
religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
 9
inappropriately, the "compelling state interest" test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the Gerona test.
The fairly recent case of Iglesia ni Cristo went back to the "clear and
present danger" test in the maiden case of American Bible Society.
Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag
which employed the "grave and immediate danger" test. Victoriano
was the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate to
the facts of the case.
The case at bar does not involve speech as in American Bible
Society, Ebralinag and Iglesia ni Cristo where the "clear and present
danger" and "grave and immediate danger" tests were appropriate as
speech has easily discernible or immediate effects. The Gerona and
German doctrine, aside from having been overruled, is not congruent
with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The "compelling state interest"
test is proper where conduct is involved for the whole gamut of human
conduct has different effects on the states interests: some effects
may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of
rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore
the "aid of Almighty God in order to build a just and humane society
and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a heavy burden,
a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the states interest and
religious liberty, reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious liberty while at
the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount interests of the state, seeks
to protect the very state, without which, religious liberty will not be
preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while
loosely disputing the applicability of the benevolent neutrality
framework and compelling state interest test, states that "[i]t is true
that a test needs to be applied by the Court in determining the validity
of a free exercise claim of exemption as made here by Escritor." This
assertion is inconsistent with the position negating the benevolent
neutrality or accommodation approach. If it were true, indeed, that the
religion clauses do not require accommodations based on the free
exercise of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any and all claims
for religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between
permissive accommodation and mandatory accommodation is more
critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the
limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive
American jurisprudence (such as the Smith case) just because it does
not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the
strict neutrality approach, but more of permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the
doctrine in Smith is that only legislative accommodations are allowed
under the Free Exercise Clause, it cannot be used in determining a
claim of religion exemption directly anchored on the Free Exercise
Clause. Thus, even assuming that the Smith doctrine actually
espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative exemptions.
It, therefore, cannot be used as a test in determining the claims of
religious exemptions directly under the Free Exercise Clause because
Smith does not recognize such exemption. Moreover, Mr. Justice
Carpios advocacy of the Smith doctrine would effectively render the
Free Exercise protectiona fundamental right under our Constitution
nugatory because he would deny its status as an independent
source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a
three-step process. We explained this process in detail, by showing
the questions which must be answered in each step, viz:
First, "[H]as the statute or government action created a burden on
the free exercise of religion?" The courts often look into the sincerity
of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth
as held in Ballard and Cantwell. The sincerity of the claimants belief
is ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state
interest to justify this infringement of religious liberty?" In this step, the
government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than
assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if
exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?" The analysis requires the state to show
that the means in which it is achieving its legitimate state objective is
the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious
liberties xxx. 138 [citations omitted]
Again, the application of the compelling state interest test could result
to three situations of accommodation: First, mandatory
accommodation would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the Court finds that
the State may, but is not required to, accommodate religious interests,
permissive accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation
interests, then it must rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that
only permissive accommodation can carve out an exemption from a
law of general application. He posits the view that the law should
prevail in the absence of a legislative exemption, and the Court
cannot make the accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine
jurisprudence. The cases of American Bible Society, Ebralinag, and
Victoriano demonstrate that our application of the doctrine of
benevolent neutrality-accommodation covers not only the grant of
permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general
application is possible, even if anchored directly on an invocation of
the Free Exercise Clause alone, rather than a legislative exemption.
 10
Moreover, it should be noted that while there is no Philippine case as
yet wherein the Court granted an accommodation/exemption to a
religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with
respect to one of the crimes penalized under the Revised Penal
Code, that of bigamy.
In the U.S. case of Reynolds v. United States, 139 the U.S. Court
expressly denied to Mormons an exemption from a general federal
law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith. 140 In contradistinction,
Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one
still constitutes bigamy under the Revised Penal Code, Article 180 of
P.D. No. 1083, otherwise known as the Code of Muslim Personal
Laws of the Philippines, provides that the penal laws relative to the
crime of bigamy "shall not apply to a person marriedunder Muslim
law." Thus, by legislative action, accommodation is granted of a
Muslim practice which would otherwise violate a valid and general
criminal law. Mr. Justice Carpio recognized this accommodation when,
in his dissent in our Decision dated August 4, 2003 and citing Sulu
Islamic Association of Masjid Lambayong v. Malik, 141he stated that a
Muslim Judge "is not criminally liable for bigamy because Sharia law
allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpios "permissive-
accommodation only" advocacy in this jurisdiction becomes manifest.
Having anchored his argument on the Smith doctrine that "the
guaranty of religious liberty as embodied in the Free Exercise Clause
does not require the grant of exemptions from generally applicable
laws to individuals whose religious practice conflict with those laws,"
his theory is infirmed by the showing that the benevolent neutrality
approach which allows for both mandatory and permissive
accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive
accommodation-only" stance is the antithesis to the notion that
religion clauses, like the other fundamental liberties found in the Bill or
Rights, is a preferred right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith,
that the test in Sherbert is not applicable when the law in question is a
generally applicable criminal law. Stated differently, even if Mr. Justice
Carpio conceded that there is no question that in the Philippine
context, accommodations are made, the question remains as to how
far the exemptions will be made and who would make these
exemptions.
On this point, two things must be clarified: first, in relation to criminal
statutes, only the question of mandatory accommodation is uncertain,
for Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions
in general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been
decided, not just once, but twice by the Court. Thus, the crux of the
matter is whether this Court can make exemptions as in Ebralinag
and the American Bible Society, in cases involving criminal laws of
general application.
We hold that the Constitution itself mandates the Court to do so for
the following reasons.
First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent
neutrality-accommodation approach in Philippine jurisdiction is more
pronounced and given leeway than in the U.S.
Second, 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. As stated by Justice OConnor in her concurring
opinion in Smith, "[t]here is nothing talismanic about neutral laws of
general applicability or general criminal prohibitions, for laws neutral
towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as
laws aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is
the recourse of minority religions who are likewise protected by the
Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority. As stated in our
Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical
matter because some laws are so necessary to the common good
that exceptions are intolerable. But in other instances, the injury to
religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural
traditions, legislators and executive officials are frequently willing to
make such exemptions when the need is brought to their attention,
but this may not always be the case when the religious practice is
either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows
accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations
extends this treatment to religious faiths that are less able to protect
themselves in the political arena.
Fourth, 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.
Finally, we must consider the language of the Religion Clauses vis--
vis the other fundamental rights in the Bill of Rights. It has been noted
that 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." Only the right to free speech is comparable in its
absolute grant. Given the unequivocal and unqualified grant couched
in the language, the Court cannot simply dismiss a claim of exemption
based on the Free Exercise Clause, solely on the premise that the law
in question is a general criminal law. 143 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.
At this point, we must emphasize that 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. This is an erroneous reading of the framework which the
dissent of Mr. Justice Carpio seems to entertain. Although benevolent
neutrality is the lens with which the Court ought to view religion clause
cases, the interest of the state should also be afforded utmost
protection. This is precisely the purpose of the testto draw the line
between mandatory, permissible and forbidden religious exercise.
Thus, under the framework, the Court cannot simply dismiss a claim
under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice
Carpio, for this precisely is the protection afforded by the religion
clauses of the Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the degree
of burden on religious practice or importance of the state interest or
the sufficiency of the means adopted by the state to pursue its
interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. We here lay down
the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed
 11
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority,
however small- not only for a majority, however large but for each of
us" to the greatest extent possible within flexible constitutional
limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003
Decision. As mentioned, what remained to be resolved, upon which
remand was necessary, pertained to the final task of subjecting this
case to the careful application of the compelling state interest test,
i.e., determining whether respondent is entitled to exemption, an issue
which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with
the transmittal of the Hearing Officers report, 146 along with the
evidence submitted by the OSG, this case is once again with us, to
resolve the penultimate question of whether respondent should be
found guilty of the administrative charge of "disgraceful and immoral
conduct." It is at this point then that we examine the report and
documents submitted by the hearing officer of this case, and apply the
three-step process of the compelling state interest test based on the
evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically
concedes that the sincerity and centrality of respondents claimed
religious belief and practice are beyond serious doubt. 147 Thus, having
previously established the preliminary conditions required by the
compelling state interest test, i.e., that a law or government practice
inhibits the free exercise of respondents religious beliefs, and there
being no doubt as to the sincerity and centrality of her faith to claim
the exemption based on the free exercise clause, the burden shifted
to the government to demonstrate that the law or practice justifies a
compelling secular objective and that it is the least restrictive means
of achieving that objective.
A look at the evidence that the OSG has presented fails to
demonstrate "the gravest abuses, endangering paramount interests"
which could limit or override respondents fundamental right to
religious freedom. Neither did the government exert any effort to show
that the means it seeks to achieve its legitimate state objective is the
least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking The September 30, 2003
Letter to the OSG of Bro. Raymond B. Leach, Legal Representative of
the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the
sincerity and centrality of respondents claimed religious belief and
practice.
2. Exhibit "B-OSG" and submarking The duly notarized certification
dated September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of
respondents claimed religious belief and practice; and (2) to prove
that the Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovahs Witnesses,
cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State
has a compelling interest to override respondents claimed religious
belief and practice, in order to protect marriage and the family as
basic social institutions. The Solicitor General, quoting the
Constitution148 and the Family Code,149 argues that marriage and the
family are so crucial to the stability and peace of the nation that the
conjugal arrangement embraced in the Declaration of Pledging
Faithfulness should not be recognized or given effect, as "it is utterly
destructive of the avowed institutions of marriage and the family for it
reduces to a mockery these legally exalted and socially significant
institutions which in their purity demand respect and dignity." 150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes
the Solicitor General in so far as he asserts that the State has a
compelling interest in the preservation of marriage and the family as
basic social institutions, which is ultimately the public policy
underlying the criminal sanctions against concubinage and bigamy.
He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a
semblance of legitimacy to her patently unlawful cohabitation..." and
"facilitates the circumvention of the Revised Penal Code." According
to Mr. Justice Carpio, by choosing to turn a blind eye to respondents
criminal conduct, the majority is in fact recognizing a practice, custom
or agreement that subverts marriage. He argues in a similar fashion
as regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in the
sound administration of justice. Indeed, the provisions by which
respondents relationship is said to have impinged, e.g., Book V, Title
I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code,
Articles 334 and 349 of the Revised Penal Code, and even the
provisions on marriage and family in the Civil Code and Family Code,
all clearly demonstrate the States need to protect these secular
interests.
Be that as it may, the free exercise of religion is specifically articulated
as one of the fundamental rights in our Constitution. It is a
fundamental right that enjoys a preferred position in the hierarchy of
rights "the most inalienable and sacred of human rights," in the
words of Jefferson. Hence, it is not enough to contend that the states
interest is important, because our Constitution itself holds the right to
religious freedom sacred. The State must articulate in specific terms
the state interest involved in preventing the exemption, which must be
compelling, for only the gravest abuses, endangering paramount
interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a
source of right by itself.
Thus, it is not the States broad interest in "protecting the institutions
of marriage and the family," or even "in the sound administration of
justice" that must be weighed against respondents claim, but the
States narrow interest in refusing to make an exception for the
cohabitation which respondents faith finds moral. In other words, the
government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent
those objectives will be undermined if exemptions are granted. 151 This,
the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling
interest test, the States interest in enforcing its prohibition, in order to
be sufficiently compelling to outweigh a free exercise claim, cannot be
merely abstract or symbolic. The State cannot plausibly assert that
unbending application of a criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete
interest in enforcing the concubinage or bigamy charges against
respondent or her partner. The State has never sought to prosecute
respondent nor her partner. The States asserted interest thus
amounts only to the symbolic preservation of an unenforced
prohibition. Incidentally, as echoes of the words of Messrs. J.
Bellosillo and Vitug, in their concurring opinions in our Decision, dated
August 4, 2003, to deny the exemption would effectively break up "an
otherwise ideal union of two individuals who have managed to stay
together as husband and wife [approximately twenty-five years]" and
have the effect of defeating the very substance of marriage and the
family.
The Solicitor General also argued against respondents religious
freedom on the basis of morality, i.e., that "the conjugal arrangement
of respondent and her live-in partner should not be condoned
because adulterous relationships are constantly frowned upon by
society";152 and "that State laws on marriage, which are moral in
 12
nature, take clear precedence over the religious beliefs and practices
of any church, religious sect or denomination on marriage. Verily,
religious beliefs and practices should not be permitted to override
laws relating to public policy such as those of marriage." 153
The above arguments are mere reiterations of the arguments raised
by Mme. Justice Ynares-Santiago in her dissenting opinion to our
Decision dated August 4, 2003, which she offers again in toto. These
arguments have already been addressed in our decision dated August
4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-
Santiagos dissenting opinion dwelt more on the standards of morality,
without categorically holding that religious freedom is not in
issue.155 We, therefore, went into a discussion on morality, in order to
show that:
(a) The public morality expressed in the law is necessarily secular for
in our constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. 156 Thus,
when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers, 157 or
"public morals" in the Revised Penal Code, 158 or "morals" in the New
Civil Code,159 or "moral character" in the Constitution, 160 the distinction
between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind; 161
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests; 162
(c) The jurisdiction of the Court extends only to public and secular
morality. Whatever pronouncement the Court makes in the case at
bar should be understood only in this realm where it has authority.163
(d) Having distinguished between public and secular morality and
religious morality, the more difficult task is determining which immoral
acts under this public and secular morality fall under the phrase
"disgraceful and immoral conduct" for which a government employee
may be held administratively liable. 164 Only one conduct is in question
before this Court, i.e., the conjugal arrangement of a government
employee whose partner is legally married to another which Philippine
law and jurisprudence consider both immoral and illegal. 165
(e) While there is no dispute that under settled jurisprudence,
respondents conduct constitutes "disgraceful and immoral conduct,"
the case at bar involves the defense of religious freedom, therefore
none of the cases cited by Mme. Justice Ynares-Santiago
apply.166 There is no jurisprudence in Philippine jurisdiction holding
that the defense of religious freedom of a member of the Jehovahs
Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We
cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be
immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with
respect to charging respondent with conduct prejudicial to the best
interest of the service, and we reiterate that the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the
best interest of the service.168
Mr. Justice Carpios slippery slope argument, on the other hand, is
non-sequitur. If the Court grants respondent exemption from the laws
which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church
annulment of their marriage even without a final annulment from a
civil court. First, unlike Jehovahs Witnesses, the Catholic faith
considers cohabitation without marriage as immoral. Second, but
more important, the Jehovahs Witnesses have standards and
procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an
investigative process whereby the elders of the congregation verify
the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal
impediments for the couple are lifted, the validity of the Declaration
ceases, and the congregation requires that the couple legalize their
union.
At bottom, the slippery slope argument of Mr. Justice Carpio is
speculative. Nevertheless, insofar as he raises the issue of equality
among religions, we look to the words of the Religion Clauses, which
clearly single out religion for both a benefit and a burden: "No law
shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof" On its face, the language grants a unique
advantage to religious conduct, protecting it from governmental
imposition; and imposes a unique disadvantage, preventing the
government from supporting it. To understand this as a provision
which puts religion on an equal footing with other bases for action
seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family
relations. The language itself thus seems to answer whether we have
a paradigm of equality or liberty; the language of the Clause is clearly
in the form of a grant of liberty. 169
In this case, the governments conduct may appear innocent and
nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which
perspective is appropriate would seem easy to answer. Moreover, the
text, history, structure and values implicated in the interpretation of the
clauses, all point toward this perspective. Thus, substantive equality
a reading of the religion clauses which leaves both politically
dominant and the politically weak religious groups equal in their
inability to use the government (law) to assist their own religion or
burden othersmakes the most sense in the interpretation of the Bill
of Rights, a document designed to protect minorities and individuals
from mobocracy in a democracy (the majority or a coalition of
minorities). 170
As previously discussed, our Constitution adheres to the benevolent
neutrality approach that gives room for accommodation of religious
exercises as required by the Free Exercise Clause. 171 Thus, in arguing
that respondent should be held administratively liable as the
arrangement she had was "illegal per se because, by universally
recognized standards, it is inherently or by its very nature bad,
improper, immoral and contrary to good conscience," 172 the Solicitor
General failed to appreciate that benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not
offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state
interest, it has to further demonstrate that the state has used the least
intrusive means possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of the state, i.e., it
has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties.174 Again, the Solicitor General
utterly failed to prove this element of the test. Other than the two
documents offered as cited above which established the sincerity of
respondents religious belief and the fact that the agreement was an
internal arrangement within respondents congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble
attempt to procure any such evidence to show that the means the
state adopted in pursuing this compelling interest is the least
restrictive to respondents religious freedom.
Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritors conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law
based on her fundamental right to freedom of religion. The Court
recognizes that state interests must be upheld in order that freedoms
- including religious freedom - may be enjoyed. In the area of religious
exercise as a preferred freedom, however, man stands accountable to
an authority higher than the state, and so the state interest sought to
be upheld must be so compelling that its violation will erode the very
fabric of the state that will also protect the freedom. In the absence of
a showing that such state interest exists, man must be allowed to
subscribe to the Infinite.
 13

5
IN VIEW WHEREOF, the instant administrative complaint is Id. at 445, 447.
dismissed.
6
Id. at 445, 453, and 457.
SO ORDERED.
7
Id. at 445-456. The Declaration provides:
REYNATO S. PUNO
Associate Justice
DECLARATION OF PLEDGING FAITHFULNESS

WE CONCUR:
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano
D. Quilapio, Jr., as my mate in marital relationship; that I have done all
ARTEMIO V. PANGANIBAN within my ability to obtain legal recognition of this relationship by the
Chief Justice proper public authorities and that it is because of having been unable
to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.

LEONARDO A. CONSUELO YNARES-

QUISUMBING SANTIAGO I recognize this relationship as a binding tie before Jehovah God and
Associate Justice Asscociate Justice before all persons to be held to and honored in full accord with the
principles of Gods Word. I will continue to seek the means to obtain
legal recognition of this relationship by the civil authorities and if at
any future time a change in circumstances make this possible, I
ANGELINA SANDOVAL- promise to legalize this union.
ANTONIO T. CARPIO
GUTIERREZ
Asscociate Justice
Associate Justice
Signed this 28th day of July 1991.

MA. ALICIA AUSTRIA- Parenthetically, Escritors partner, Quilapio, executed a similar pledge
RENATO C. CORONA on the same day. Both pledges were executed in Atimonan, Quezon
MARTINEZ
Asscociate Justice and signed by three witnesses. At the time Escritor executed her
Associate Justice
pledge, her husband was still alive but living with another woman.
Quilapio was likewise married at that time, but had been separated in
fact from his wife. Id. at 446.
CONCHITA CARPIO
ROMEO J. CALLEJO, SR.
MORALES
Asscociate Justice 8
Id. at 447-448, 452-453. Based on the testimony of Gregorio
Associate Justice
Salazar, a member of the Jehovahs Witnesses since 1985. As
presiding minister since 1991, he is aware of the rules and regulations
of the Congregation. An authenticated copy of the magazine article
ADOLFO S. AZCUNA DANTE O. TINGA entitled, "Maintaining Marriage Before God and Men," which explains
Associate Justice Asscociate Justice the rationale behind the Declaration, was also presented.

9
Id. at 449.
MINITA V. CHICO-
CANCIO C. GARCIA
NAZARIO
Asscociate Justice 10
Id. at 452.
Associate Justice

PRESBITERO J. VELASCO, JR. 11

Id. at 449.
Associate Justice
12
See id. at 447-452.

Footnotes 13
Id. at 445, 453, and 457.
1
Estrada v. Escritor, 455 Phil. 411 (2003). 14
Id. at 596.
2
Id. at 444. Incidentally, Escritor moved for the inhibition of Judge 15
Caoibes from hearing her case to avoid suspicion and bias as she Id. at 599-600.
previously filed an administrative case against him. Escritors motion
was denied. 16
Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457;
Gokongwei v. SEC, G.R. No. 52129, April 21, 1980, 97 SCRA 78;
3
Id. The Code provides: Commissioner of Public Highways v. Burgos, G.R. No. L-36706,
March 31, 1980, 96 SCRA 831; Municipality of Daet v. C.A., G.R. No.
L-35861, October 18, 1979, 93 SCRA 503; and Peoples Homesite
Sec. 46. Discipline: General Provisions. and Housing Corp. v. Mencias, G.R. No. L-24114, August 16, 1967,
20 SCRA 1031.
(a) No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due process. 17
See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468
(2003).
(b) The following shall be grounds for disciplinary action:
18
During primitive times, when there was no distinction between the
religious and secular, and the same authority that promulgated laws
xxx xxx xxx
regulating relations between man and man promulgated laws
(5) Disgraceful and immoral conduct; xxx.
concerning mans obligations to the supernatural. See id. at 458-459.

4
Id. at 445.
 14
19
This was the time of theocracy, during the rise of the Hebrew state
and the Mosaic religion. See id. at 459-461.
20
Following the rise of Saul, and the pre-Christian Rome which
engaged in emperor-worship. See id. at 461-462.
21
Id. at 462-463.
22
Id. at 468.
23
Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 565(4th ed. 1997).
24
Id.
25
See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003).
26
Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 575(4th ed. 1997).
27
Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing Beth, L.,
American Theory of Church and State 71 (1958).
28
See id. at 487, 512-516.
29
Id. at 515, citing Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 46 (1980); Beth, L., American Theory of Church and State 71
& 72 (1958); and Grossman, J.B. and Wells, R.S., Constitutional Law
& Judicial Policy Making 1276 (2nd ed. 1980).
30
Id. at 515, citing The Constitution and Religion 1541.
31
See Drakeman, D., Church-State Constitutional Issues 55 (1991),
citing Cord, R., Separation of Church and State: Historical Fact and
Current Fiction 50. Thus:
The [separationist] school of thought argues that the First Congress
intended to allow government support of religion, at least as long as
that support did not discriminate in favor of one particular religion. . .
the Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and
fasting during his presidency, and he sponsored Jeffersons bill for
punishing Sabbath breakers; moreover, while president, Jefferson
allowed federal support of religious missions to the Indians. . . And so,
concludes one recent book, "there is no support in the Congressional
records that either the First Congress, which framed the First
Amendment, or its principal author and sponsor, James Madison,
intended that Amendment to create a state of complete independence
between religion and government. In fact, the evidence in the public
documents goes the other way." Id. at 513-514.
32
Id. at 514, citing Drakeman, D., Church-State Constitutional Issues
55 (1991), Cord, R., Separation of Church and State: Historical Fact
and Current Fiction 50; and 1 The Debates and Proceedings in the
Congress of the United States, Compiled from Authentic Materials
949-950 (Annala, Gales, J. and Seaton, W., eds.). Only two members
of U.S. Congress opposed the resolution, one on the ground that the
move was a "mimicking of European customs, where they made a
mere mockery of thanksgivings," the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion was
passed without further recorded discussion.
33
Id. at 515, citing Weber, P., Neutrality and First Amendment
Interpretation in Equal Separation 3 (1990).
34
330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court
adopted Jeffersons metaphor of "a wall of separation between church
and state" as encapsulating the meaning of the Establishment Clause.
Said the U.S. Court: "The First Amendment has erected a wall
between church and state. That wall must be kept high and
impregnable. We could not approve the slightest breach." Id. at 18.
35
Everson v. Board of Education, 330 U.S. 1, 18 (1947).
36
See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing The
Constitution and Religion 1541; and Kurland, Of Church and State
and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961). Parenthetically,
the U.S. Court in Employment Division, Oregon Department of Human
Resources v. Smith, 494 U.S. 872 (1990), echoed the rationale of the
separationists, when it held that if government acts in pursuit of a
generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not
been offended.
37
374 U.S. 203 (1963).
38
Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing Buzzard, L.,
Ericsson, S., The Battle for Religious Liberty 60 (1980).
39
Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free
Exercise of Religion in Weber, P., Equal Separation 1189 (1990).
40
Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a
Pluralist Concept of Accommodation, in Weber, P., Equal Separation
74-75 (1990).
41
I.e., the "garden" of the church must be walled in for its own
protection from the "wilderness" of the world with its potential for
corrupting those values so necessary to religious commitment.
According to Williams, this wall is breached, for the church is in the
state, and so the remaining purpose of the wall is to safeguard
religious liberty. Williams wall, therefore, would allow for interaction
between church and state, but is strict with regard to state action
which would threaten the integrity of religious commitment. His
conception of separation is not total such that it provides basis for
certain interactions between church and state dictated by apparent
necessity or practicality.
See discussion of the birth of the theory in Estrada v. Escritor, 455
Phil. 411, 518-519 (2003).
42
343 U.S. 306 (1951).
43
Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
44
Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).
45
Marsh v. Chambers, 463 US 783, 792-93 (1983).
46
Sherbert v. Verner, 374 US 398, 403-04 (1963).
47
Bowen v. Kendrick, 487 US 589, 611 (1988).
48
Board of Education v. Allen, 392 US 236, 238 (1968).
49
Everson v. Board of Education, 330 US 1, 17 (1947).
50
Committee for Public Education and Religious Liberty v. Regan, 444
US 646, 653-54 (1980).
51
Cited in McConnel, M., Accommodation of Religion: An Update and
a Response to the Critics, 60 The George Washington Law Review
685, 688. See Estrada v. Escritor, 455 Phil. 411, 522-523 (2003).
 15

52 74
Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S., The 494 U.S. 872, 882 (1990), cited in Chemerinsky, Erwin,
Resurrection of Religious Freedom, 107 Harvard Law Review 118, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
1280129 (1993).
75
494 U.S. 872, 884 (1990), cited in Chemerinsky, Erwin,
53
Id. at 482, citing Sullivan, K., Religion and Liberal Democracy, 59 Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
The University of Chicago Law Review 195, 214-215 (1992).
76
494 U.S. 872, 888 (1990), cited in Chemerinsky, Erwin,
54
Id. Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

55 77
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, See Chemerinsky, Erwin, Constitutional Law: Principles and
Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Policies 1213 (2nd ed. 2002).
Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1302 (2005). 78
Employment Division v. Smith, 494 U.S. 872, 906 (1990).
(OConnor, J. concurring in the judgment) This portion of her
56
Carmella, Angela C., State Constitutional Protection of Religious concurring opinion was supported by Justices Brennan, Marshall and
Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. Blackmun who dissented from the Courts decision; cited in
275, 277 (1993). Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).
57
Sherbert v. Verner, 374 U.S. 398, 403 (1963).
79
Id at 903. (OConnor, J. concurring in the judgment), cited in
58
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
Id. at 406. (2nd ed. 2002).

59
Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I., The
Religion Clauses and Justice Brennan in Full, 87 California Law
Review 1105, 1114, 1105 and 1110 (1999).
80
Id. at 902. (OConnor, J. concurring in the judgment) cited in
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

60
Carmella, Angela C., State Constitutional Protection of Religious 81
Id. at 908-909. (Blackmun, J. dissenting), cited in Chemerinsky,
Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. Erwin, Constitutional Law: Principles and Policies 1213 (2nd ed.
275, 277 (1993). 2002).

61
406 U.S. 205 (1972). 82
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56
Hastings L.J. 699 (2005).
62
Id. at 214-215, 219-220.
83
Id.
63
Ivan E. Bodensteiner, The Demise of the First Amendment as a
Guarantor of Religious Freedom, 27 Whittier L. Rev. 415,417-418 84
Aden, Steven H & Strang, Lee J., When a "Rule" Doesnt Rule: The
(2005). (citations omitted) Failure of the Oregon Employment Division v. Smith "Hybrid Rights
Exception," 108 Penn. St. L. Rev. 573, 581 (2003).
64
See Pepper, Stephen, Conflicting Paradigms of Religious Freedom:
Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 30-32 (1993). 85
Id.

65
Id. at 30-32. 86
Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell, M.,
Accommodation of Religion: An Update and a Response to the
66
Id. Critics, 60 The George Washington Law Review 685, 726 (1992).

67
Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing Stephens, Jr.,
O.H. and Scheb, II J.M., American Constitutional Law 522-523 and
526 (2nd ed. 1999).
87
Id. at 482, citing McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48 Vanderbilt Law
Review, 1335, 1350-1352 (1995).

68
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
Johnson: More Rotted Fruit From Employment Division v. Smith, 80
Chi.-Kent L. Rev. 1287, 1304 (2005).
69
494 U.S. 872 (1990).
70
Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1211 (2nd ed. 2002).
71
494 U.S. 872, 878-889 (1990), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1211 (2nd ed. 2002).
72
494 U.S. 872, 879 (1990), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
73
494 U.S. 872, 881 (1990), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
88
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56
Hastings L.J. 699 (2005).
89
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II Ducat, C.,
Constitutional Interpretation 1180 & 1191 (2000). See also Sullivan,
K., Religion and Liberal Democracy, 59 The University of Chicago
Law Review 195, 216 (1992).
90
Id. at 502, citing McConnell, M., Religious Freedom at a
Crossroads, 59 The University of Chicago Law Review 115, 139
(1992).
91
Id., citing Sullivan, K., Religion and Liberal Democracy, 59 The
University of Chicago Law Review 195, 216 (1992).
92
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56
Hastings L.J. 699 (2005).
 16
93
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A
Coherent Methodology for First Amendment Speech and Religion
Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1351 (1995).
94
Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v.
Gobitis, 310 U.S. 586 (1940); and Employment Division, Oregon
Department of Human Resources v. Smith, 494 U.S. 872 (1990).
95
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A
Coherent Methodology for First Amendment Speech and Religion
Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1351 (1995).
96
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
Johnson: More Rotted Fruit From Employment Division v. Smith, 80
Chi.-Kent L. Rev. 1287, 1327 (2005).
97
Bodensteiner, Ivan E., The Demise of the First Amendment As a
Guarantor of Religious Freedom, 27 Whittier L. Rev. 415, 419 (2005).
98
Aden, Steven H & Strang, Lee J., When a "Rule" Doesnt Rule: The
Failure of the Oregon Employment Division v. Smith "Hybrid Rights
Exception", 108 Penn. St. L. Rev. 573, 584 (2003).
99
See Cohen, William & Danelski, David J., Constitutional Law: Civil
Liberty and Individual Rights 620-621 (4th ed. 1997).
100
Id.
101
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S., The
Resurrection of Religious Freedom, 107 Harvard Law Review 118
(1993).
102
42 U.S.C. 2000bb.
103
42 U.S.C. 2000bb, Sec. (a) (4), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).
104
Id.
105
Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1212 (2nd ed. 2002).
106
City of Boerne v. Flores, 521 U.S. 507 (1997), cited in
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1216
(2nd ed. 2002).
107
City of Boerne clearly invalidated the RFRA as applied to state and
local governments, but did not resolve the constitutionality of the law
as applied to the federal government. Some federal courts have
expressly ruled that the RFRA is constitutional as applied to the
federal government. See Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1216 (2nd ed. 2002).
108
See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr.,
Religious Freedom: History, Cases, and Other Materials on the
Interaction of Religion and Government 531 (2001).
109
Carmella, Angela C., State Constitutional Protection of Religious
Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev.
275, 278 (1993).
110
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v.
Johnson: More Rotted Fruit From Employment Division v. Smith, 80
Chi.-Kent L. Rev. 1287, 1327 (2005).
111
Estrada v. Escritor, 455 Phil. 411, 526 (2003).
112
Id. at 527, citing Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 61-62 (1980).
113
Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
114
343 U.S. 306 (1952).
115
463 U.S. 783 (1983).
116
McConnell, M., Accommodation of Religion: An Update and a
Response to the Critics, 60 The George Washington Law Review 685,
715 (1992).
117
333 U.S. 203 (1948).
118
Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing Buzzard, L.,
Ericsson, S., The Battle for Religious Liberty 61-63 (1980).
119
Kmiec, Douglas W. & Presser, Stephen B., Individual Rights and
the American Constitution 105 (1998).
120
Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited in
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).
121
See, e.g. Michael McConnell, Free Exercise Revisionism and the
Smith Decision, 57 U. Chi. L. Rev. 1109 (1990); Jesse H. Choper, The
Rise and Decline of the Constitutional Protection of Religious Liberty,
70 Neb. L. Rev. 651 (1991) (criticizing Smith). Cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1213 (2nd ed.
2002).
122
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harvard Law Review 1410, 1416-1417
(1990).
123
Constitution, (1935), Art. VI, Sec. 22, par 3(b); Constitution, (1973),
Art. VI, Sec. 22(3); and Constitution, (1987), Art.VI, Sec. 28(3).
124
Constitution, (1935), Art. VI, Sec. 23(3); Constitution, (1973), Art.
VIII, Sec. 18(2); and Constitution, (1987), Art. VI, Sec. 29(2).
125
Constitution, (1935) Art. XIII, Sec. 5; Constitution, (1973), Art. XV,
Sec. 8(8); and Constitution, (1987), Art. XIV, Sec. 3(3).
126
"Divine Providence" in the 1935 and 1973 Constitutions; and
"Almighty God" in the 1987 Constitution.
127
Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
128
Id. at 564 and 575.
129
Id. at 563-564.
130
Id. at 574. As stated in the Decision dated August 4, 2003:
Considering the American origin of the Philippine religion clauses and
the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it
was included in the 1935 Bill of Rights, it is not surprising that nearly
all the major Philippine cases involving the religion clauses turn to
U.S. jurisprudence in explaining the nature, extent and limitations of
these clauses. However, a close scrutiny of these cases would also
reveal that while U.S. jurisprudence on religion clauses flows into two
main streams of interpretation - separation and benevolent neutrality -
the well-spring of Philippine jurisprudence on this subject is for the
most part, benevolent neutrality which gives room for accommodation.
Id. at 536.
 17
131
101 Phil. 386 (1957).
132
G.R. No. 95770, March 1, 1993, 219 SCRA 256.
133
Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this prior
case, petitioners were also members of the Jehovahs Witnesses.
They challenged a Department Order issued by the Secretary of
Education implementing Republic Act No. 1265 which prescribed
compulsory flag ceremonies in all public schools. In violation of the
Order, petitioners 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, petitioners 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. The Court denied exemption,
and sustained the expulsion of petitioners children, on the ground that
"If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield to
the latter."
134
Id. at 270-271.
135
G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also
Basa v. Federacion Obrera, G.R. No. L-27113, November 19, 1974,
61 SCRA 93; Gonzalez v. Central Azucarera de Tarlac Labor Union,
G.R. No. L-38178, October 3, 1985, 139 SCRA 30.
136
Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246,
September 12, 1974, 59 SCRA 54, 74-75. The Court stressed that
"(a)lthough the exemption may benefit those who are members of
religious sects that prohibit their members from joining labor unions,
the benefit upon the religious sects is merely incidental and indirect."
In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union
security agreements which Congress itself also imposed through the
Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws
conflict with scruples of conscience, exemptions ought to be granted
unless some "compelling state interest" intervenes. The Court then
abruptly added that "(i)n the instant case, We see no compelling state
interest to withhold exemption." Id.
137
Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).
138
Id. at 529-531.
139
98 U.S. 145 (1878).
140
See Kmiec, Douglas, W, & Presser, Stephen B, Individual Rights
and the American Constitution 105 (1998). In this case, the issue was
whether a general federal law criminalizing polygamy can be applied
to a Mormon whose religion included that practice. The U.S. Court, in
affirming Reynolds conviction, ruled that the prohibition of polygamy
was justified by the importance of monogamous, heterosexual
marriage, a practice upon which society may be said to be built, and
perhaps even upon which democratic traditions depend. Thus,
according to the U.S. Court, this important societal interest prevails
over the countervailing religious practice of the Mormons.
141
A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.
142
494 U.S. 872 (1990). (OConnor, J. concurring) According to
Justice OConnor:
Even if, as an empirical matter, a governments criminal laws might
usually serve a compelling interest in health, safety, or public order,
the First Amendment at least requires a case-by-case determination
of the question, sensitive to the facts of each particular claim Given
the range of conduct that a State might legitimately make criminal, we
cannot assume, merely because a law carries criminal sanctions and
is generally applicable, that the First Amendment never requires the
State to grant a limited exemption for religiously motivated conduct.
Parenthetically, J. Brennan, J. Marshall, and J. Blackmun joined Parts
I and II of Justice OConnors opinion, including the above-cited
portions, but did not concur in the judgment.
143
See Pepper, Stephen, Conflicting Paradigms of Religious
Freedom: Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 12-13
(1993).
144
Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).
145
Id., citing McConnell, M., Religious Freedom at a Crossroads,
59(1) Univ. of Chicago Law Review 115, 169 (1992).
146
Dated May 6, 2005, by retired Associate Justice Romulo S.
Quimbo, rollo, p. 714.
147
Rollo, pp. 687-689.
148
OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing
Constitution, Art. II, Sec. 12, which provides: "The State recognizes
the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution."
149
Id. at 21, citing the Family Code, Art. 149, which provides: "The
family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family
relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect."
150
Id. at 21-22.
151
See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).
152
OSG Memorandum-In-Intervention, rollo, p. 23.
153
Id. at 26.
154
Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of the
decision addressed the issue of morality raised by Mme. Justice
Ynares-Santiago and Mr. Justice Vitug, who also had a separate
opinion, albeit differing in conclusion.
155
Id. at 580.
156
Id. at 586-588.
157
Rule 1.01 of the Code of Professional Responsibility provides that,
"(a) lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
158
Title Six of the Revised Penal Codeis entitled Crimes against
Public Morals and includes therein provisions on gambling and
betting. (emphasis supplied)
159
The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the
waiver is contrary to law, public order, public
policy, morals, or good ustoms or prejudicial to a
third person with a right recognized by law.
Article 21. Any person who willfully causes loss
or injury to another in manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Article 1306. The contran/a>blish such
stipulations, clauses, terms and conditions as
 18

they may deem convenient, provided that are

not contrary to law, morals, good customs,
public order, or public policy.

Article 1409. The following contracts are

inexistent and void from the beginning:

(1) Those whose cause, object or purpose is

contrary to law, morals, good customs, public
order or public policy; x x x" (emphases
supplied)

160
Article XIV, Section 3 provides in relevant part, viz:

(1)All educational institutions shall include the study of the

Constitution as part of the curricula.

(2)They shall inculcate patriotism and nationalism, foster love of

humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights
and duties of citizenship, strengthen ethical and spiritual values,
develop moral character and personal discipline, encourage critical
and creative thinking, broaden scientific and technological knowledge,
and promote vocational efficiency. (emphasis supplied)

161
Estrada v. Escritor, 455 Phil. 411, 586 (2003).

162
Id. at 589-590.

163
Id. at 591.

164
Id. at 592.

165
Id. at 593.

166
Id. at 593-595.

167
Id. at 594-595.

168
Id. at 595-596.

169
Pepper, Stephen, Conflicting Paradigms of Religious Freedom:
Liberty Versus Equality, 1993 B. Y. U. L. Rev. 7, 12 (1993).
DISSENTING OPINION
170
Id. at 51.
YNARES-SANTIAGO, J.:
171
Estrada v. Escritor, 455 Phil. 411, 574 (2003).
With due respect, I am unable to agree with the finding of the majority
172
OSG Memorandum-In-Intervention, rollo, p. 708. that "in this particular case and under these particular circumstances,
respondent Escritors conjugal arrangement does not constitute
disgraceful and immoral conduct" and its decision to dismiss the
173
See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003). administrative complaint filed by petitioner against respondent
Soledad S. Escritor.
174
Id. at 529-531.
The issue in this case is simple. What is the meaning or standard of
"disgraceful and immoral conduct" to be applied by the Supreme
Court in disciplinary cases involving court personnel?

The degree of morality required of every employee or official in the

public service has been consistently high. The rules are particularly
strict when the respondent is a Judge or a court employee. 1 Even
where the Court has viewed certain cases with human understanding
and compassion, it has insisted that no untoward conduct involving
public officers should be left without proper and commensurate
sanction.2 The compassion is shown through relatively light penalties.
Never, however, has this Court justified, condoned, or blessed the
continuation of an adulterous or illicit relationship such as the one in
this case, after the same has been brought to its attention.
 19
Is it time to adopt a more liberal approach, a more "modern" view and
a more permissive pragmatism which allow adulterous or illicit
relations to continue provided the job performance of the court
employee concerned is not affected and the place and order in the
workplace are not compromised? When does private morality
involving a court employee become a matter of public concern?
The Civil Service Law punishes public officers and employees for
disgraceful and immoral conduct.3 Whether an act is immoral within
the meaning of the statute is not to be determined by respondents
concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform,
the act which it condemns.4
The ascertainment of what is moral or immoral calls for the discovery
of contemporary community standards. For those in the service of the
Government, provisions of law and court precedents also have to be
considered. The task is elusive.
The laymans definition of what is "moral" pertains to excellence of
character or disposition. It relates to the distinction between right and
wrong; virtue and vice; ethical praise or blame. Moral law refers to the
body of requirements in conformity to which virtuous action consists.
Applied to persons, it is conformity to the rules of morality, being
virtuous with regards to moral conduct.5
That which is not consistent with or not conforming to moral law,
opposed to or violating morality, and now, more often, morally evil or
impure, is immoral. Immoral is the state of not being virtuous with
regard to sexual conduct.6
The term begs the definition. Hence, anything contrary to the
standards of moral conduct is immoral. A grossly immoral act must be
so corrupt and false as to constitute a criminal act or so unprincipled
as to be reprehensible to a high degree.7
Anything plainly evil or dissolute is, of course, unchangingly immoral.
However, at the fringes or boundary limits of what is morally
acceptable and what is unacceptably wrong, the concept of immorality
tends to shift according to circumstances of time, person, and place.
When a case involving the concept of immorality comes to court, the
applicable provisions of law and jurisprudence take center stage.
Those who choose to tolerate the situation where a man and a
woman separated from their legitimate spouses decide to live
together in an "ideal" and yet unlawful union state or more
specifically, those who argue that respondents cohabiting with a man
married to another woman is not something which is willful, flagrant,
or shameless show a moral indifference to the opinion of the good
and respectable members of the community in a manner prejudicial to
the public service.
Insofar as concepts of morality are concerned, various individuals or
cultures may indeed differ. In certain countries, a woman who does
not cover herself with a burka from head to foot may be arrested for
immoral behavior. In other countries, near nudity in beaches passes
by unnoticed. In the present case, the perceived fixation of our society
over sex is criticized. The lesser degree of condemnation on the sins
of laziness, gluttony, vanity, selfishness, avarice and cowardice is
decried as discriminatory.
The issue in this case is legal and not philosophical. It is a limited one.
Is respondent Soledad S. Escritor guilty of "disgraceful and immoral"
conduct in the context of the Civil Service Law? Are there any
sanctions that must be imposed?
We cannot overlook the fact that respondent Escritor would have
been convicted for a criminal offense if the offended party had been
inclined and justified to prosecute her prior to his death in 1998. Even
now, she is a co-principal in the crime of concubinage. A married
woman who has sexual intercourse with a man not her husband, and
the man who has carnal knowledge of her knowing her to be married,
commit the crime of adultery.8Abandonment by the legal husband
without justification does not exculpate the offender; it merely
mitigates the penalty.
The concubine with whom a married man cohabits suffers the penalty
of destierro.9 It is true that criminal proceedings cannot be instituted
against persons charged with adultery or concubinage except upon
complaint of the offended party.10 This does not mean that no
actionable offense has been committed if the offended party does not
press charges. It simply cannot be prosecuted. The conduct is not
thereby approved, endorsed or commended. It is merely tolerated.
The inescapable fact in this case is that acts defined as criminal under
penal law have been committed.
There are experts in Criminal Law who believe that the codal
provisions on adultery and concubinage are terribly outmoded and
should be drastically revised. However, the task of amendment or
revision belongs to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to constitute a
criminal act is "grossly immoral."11 It is not merely "immoral."
Respondent now asks the Court to go all the way to the opposite
extreme and condone her illicit relations with not even an admonition
or a slight tap on the wrist.
I do not think the Court is ready to render a precedent-setting decision
to the effect that, under exceptional circumstances, employees of the
judiciary may live in a relationship of adultery or concubinage with no
fear of any penalty or sanction and that after being discovered and
charged, they may continue the adulterous relationship until death
ends it. Indeed, the decision in this case is not limited to court
interpreter Soledad Escritor. It is not a pro hac vice ruling. It applies to
court employees all over the country and to everybody in the civil
service. It is not a private ruling but one which is public and far-
reaching in its consequences.
In the 1975 case of De Dios v. Alejo,12 the Court applied compassion
and empathy but nonetheless recognized as most important a
mending of ways through a total breaking of relationships. The facts in
that case are strikingly similar to those in this case. Yet, the Court
required a high degree of morality even in the presence of apparently
exculpating circumstances. It was stated:
While it is permissible to view with human understanding and
compassion a situation like that in which respondents find
themselves, the good of the service and the degree of morality which
every official and employee in the public service must observe, if
respect and confidence are to be maintained by the government in the
enforcement of the law, demand that no untoward conduct on his part,
affecting morality, integrity and efficiency, while holding office should
be left without proper and commensurate sanction, all attendant
circumstances taken into account. In the instant case, We cannot
close our eyes to the important considerations that respondents have
rendered government service for more than thirty-three and twenty-
five years, respectively, and that there is no showing that they have
ever been found guilty of any administrative misconduct during all
those periods. In the case of respondent Alejo, it seems rather
sadistic to make her suffer the extreme penalty of dismissal from the
service after she had taken care of her co-respondents four children,
giving them the needed love and attention of a foster mother after
they were completely abandoned by their errant and unfaithful natural
mother. Even respondent Marfil, if to a lesser degree, is deserving of
compassion. Most importantly, respondents have amply
demonstrated that they recognize their mistake and have,
therefore, actually mended their ways by totally breaking their
relationship complained of, in order to conform with the
imperatives of public interest. (Emphasis supplied)
The standards for those in the judicial service are quite exacting.
The Court has ruled that in the case of public servants who are in the
judiciary, their conduct and behavior, from the presiding judge to
the lowliest clerk, must not only be characterized by propriety and
decorum, but above all else, must be above suspicion. 13
 20
In Burgos v. Aquino,14 it was ruled:
The Code of Judicial Ethics mandates that the conduct of court
personnel must be free from any whiff of impropriety, not only with
respect to his duties in the judicial branch but also to his behavior
outside the court as a private individual. There is no dichotomy of
morality; a court employee is also judged by his private morals. These
exacting standards of morality and decency have been strictly
adhered to and laid down by the Court to those in the service of the
judiciary. Respondent, as a court stenographer, did not live up to her
commitment to lead a moral life. Her act of maintaining relations with
Atty. Burgos speaks for itself.
Respondent Aquino was a court stenographer who was suspended
for six months for maintaining illicit relations with the husband of
complainant Virginia E. Burgos. The Court therein stated that a
second offense shall result in dismissal.
We should not lose sight of the fact that the judicial system over which
it presides is essentially composed of human beings who, as such,
are naturally prey to weakness and prone to errors. Nonetheless,
in Ecube-Badel v. Badel,15 we imposed on respondent a suspension
for six months and one day to one year with warning of dismissal
should the illicit relations be repeated or continued.
In Nalupta v. Tapec,16 a deputy sheriff was suspended, also for six
months, for having illicit relations with a certain Cristian Dalida who
begot a son by him. His wife complained and neighbors confirmed
that Tapec was frequently seen leaving the house of Consolacion
Inocencio in the morning and returning to it in the afternoon. Tapec
and Inocencio begot two children. Consistently with the other cases,
we imposed the penalty of suspension for the first offense with the
graver penalty of dismissal for a second offense.
The earlier case of Aquino v. Navarro17 involved an officer in the
Ministry of Education, Culture and Sports who was abandoned by her
husband a year after their marriage and who lived alone for eighteen
years with their child. Pretending that she sincerely believed her
husband to have died, she entered into a marital relationship with
Gonzalo Aquino and had children by him in 1968 and 1969. Eighteen
days before their third child was born on May 25, 1975, the two
decided to get married. Notwithstanding the illicit relationship which
blossomed into a bigamous marriage, the full force of the law was not
applied on her, "considering the exceptional circumstances that befell
her in her quest for a better life." Still, a penalty of six months
suspension was imposed with a warning that "any moral relapse on
her part will be severely dealt with."
Times are changing. Illicit sex is now looked upon more kindly.
However, we should not completely disregard or overlook a
relationship of adultery or concubinage involving a court employee
and not order it to be terminated. It should not ignore what people will
say about our moral standards and how a permissive approach will be
used by other court employees to freely engage in similarly illicit
relationship with no fear of disciplinary punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr.
had existing marriages with their respective legitimate spouses when
they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore,
immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on
July 28, 1991 the "Declaration of Pledging Faithfulness" to make their
relationship what they alleged it would be a binding tie before
Jehovah God.
In this case, respondent is charged not as a Jehovahs Witness but in
her capacity as a court employee. It is contended that respected
elders of the Jehovahs Witnesses sanction "an informal conjugal
relationship" between respondent and her marital partner for more
than two decades, provided it is characterized by faithfulness and
devotion to one another. However, the "informal conjugal relationship"
is not between two single and otherwise eligible persons where all
that is missing is a valid wedding ceremony. The two persons who
started to live together in an ostensible marital relationship are
married to other persons.
We must be concerned not with the dogmas or rules of any church or
religious sect but with the legal effects under the Civil Service Law of
an illicit or adulterous relationship characterized by the facts of this
case.
There is no conflict in this case between the dogmas or doctrines of
the Roman Catholic Church and those of the Jehovahs Witnesses or
any other church or denomination. The perceived conflict is non-
existing and irrelevant.
The issue is legal and not religious. The terms "disgraceful" and
"immoral" may be religious concepts, but we are concerned with
conduct which under the law and jurisprudence is proscribed and, if
perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by showing that it was
morally right by the standards of the congregation to which she
belongs. Her defense of freedom of religion is unavailing. Her
relationship with Mr. Quilapio is illicit and immoral, both under the
Revised Administrative Code18 and the Revised Penal
Code,19notwithstanding the supposed imprimatur given to them by
their religion.
The peculiar religious standards alleged to be those of the sect to
which respondent belongs can not shield her from the effects of the
law. Neither can her illicit relationship be condoned on the basis of a
written agreement approved by their religious community. To condone
what is inherently wrong in the face of the standards set by law is to
render nugatory the safeguards set to protect the civil service and, in
this case, the judiciary.
The Court cannot be the instrument by which one group of people is
exempted from the effects of these laws just because they belong to a
particular religion. Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the judiciary, and it must do
so with an even hand regardless of her religious affiliation.
I find that respondents "Declaration of Pledging Faithfulness" does
nothing for her insofar as this administrative matter is concerned, for
written therein are admissions regarding the legal impediments to her
marrying Quilapio. In the said document, she even pledged to seek all
avenues to obtain legal recognition by civil authorities of her union
with Quilapio.20 However, the record is silent as to any effort on
respondents part to effect this covenant.
The evidence shows that respondent repeatedly admitted the
existence of the legal infirmities that plague her relationship with
Quilapio.21 As a court interpreter, she is an integral member of the
judiciary and her service as such is crucial to the administration of
justice. Her acts and omissions constitute a possible violation of the
law the very same law that she is sworn to uphold as an employee
of the judiciary. How can she work under the pretense of being a
contributing force to the judicial system if she herself is committing
acts that may constitute breaking the law?
Respondent invokes her constitutional right to religious freedom. The
separation of church and state has been inviolable in this jurisdiction
for a century. However, the doctrine is not involved in this
case.22 Furthermore, the legislature made cohabitation with a woman
who is not ones wife a crime through the enactment of the Revised
Penal Code.23 The legislative power has also seen fit to enact the Civil
Service Law and has given said law general application.
The argument that a marital relationship is the concern of religious
authorities and not the State has no basis.
In Reynolds v. United States,24 the U.S. Supreme Court stated:
It is impossible to believe that the constitutional guaranty of religious
freedom was intended to prohibit legislation in respect to this most
 21
important feature of social life. Marriage, while from its very nature a
sacred obligation, is, nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said to
be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required
to deal.
The strengthening of marriage ties and the concomitant hostility to
adulterous or illicit marital relations is a primary governmental
concern. It has nothing to do with the particular religious affiliations of
those affected by legislation in this field.
The relations, duties, obligations and consequences of marriage are
important to the morals and civilization of a people and to the peace
and welfare of society.25 Any attempt to inject freedom of religion in an
effort to exempt oneself from the Civil Service rules relating to the
sanctity of the marriage tie must fail.
The U.S. Supreme Court in the above-cited case of Reynolds v.
United States26 upheld federal legislation prohibiting bigamy and
polygamy in territories of the United States, more specifically Utah.
Members of the Mormon Church asserted that the duty to practice
polygamy was an accepted doctrine of their church. In fact, Mormons
had trekked from the regular States of the Union to what was then a
mere Territory in order to practice their religious beliefs, among them
polygamy. The Court declared that while it protected religious belief
and opinion, it did not deprive Congress of the power to reach actions
violative of social duties or subversive of good order. Polygamy was
outlawed even for Mormons who considered it a religious obligation.
We must not exempt illegal conduct or adulterous relations from
governmental regulation simply because their practitioners claim it is
part of their free exercise of religious profession and worship.
Indeed, the Court distinguishes between religious practices, including
the seemingly bizarre, which may not be regulated, and unacceptable
religious conduct which should be prevented despite claims that it
forms part of religious freedom.
In Ebralinag v. Division Superintendent of Schools, 27 we validated the
exemption of Jehovahs Witnesses from coerced participation in flag
ceremonies of public schools. Following the ruling in West Virginia v.
Barnette,28 we declared that unity and loyalty, the avowed objectives
of flag ceremonies, cannot be attained through coercion. Enforced
unity and loyalty is not a good that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means.
The exemption from participation in flag ceremonies cannot be
applied to the tolerance of adulterous relationships by court personnel
in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to public
morals, is a ground for the reasonable regulation of the free exercise
and enjoyment of religious profession. 29 In addition to the destruction
of public morals, the substantive evil in this case is the tearing down
of morality, good order, and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in the civil service
has been consistent. There is nothing in this case that warrants a
departure from precedents. We must not sanction or encourage illicit
or adulterous relations among government employees.
Soledad S. Escritor and Luciano D. Quilapio are devoted members of
Jehovahs Witness. Exemptions granted under our Muslim Laws to
legitimate followers of Islam do not apply to them. 30 The Court has no
legislative power to place Jehovahs Witness in the same legal
category as Muslims.
In Bucatcat v. Bucatcat, 31 it was held that conduct such as that
demonstrated by the respondent is immoral and deserving of
punishment. For such conduct, the respondent, another court
interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of integrity,
uprightness and honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in the performance of
his official duties but in his personal and private dealings with other
people, to preserve the courts good name and standing. It cannot be
overstressed that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat,
from the judge to the lowest of its personnel. Court employees have
been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve
the good name and integrity of courts of justice.
All those who work in the judiciary are bound by the most exacting
standards of ethics and morality to maintain the peoples faith in the
courts as dispensers of justice. In Liguid v. Camano,32 it was ruled:
Surely, respondents behavior of living openly and scandalously for
over two (2) decades with a woman not his wife and siring a child by
her is representative of the gross and serious misconduct penalized
by the ultimate penalty of dismissal under Section 22 (c), Rule XIV of
the Omnibus Rules Implementing Book IV of Executive Order No. 292
otherwise known as the Revised Administrative Code of 1987. As
defined, misconduct is a transgression of some established or definite
rule of action, more particularly, unlawful behavior or gross negligence
by the public officer. Respondents conduct is an example of the kind
of gross and flaunting misconduct that so quickly and surely corrodes
the respect for the courts without which government cannot continue
and that tears apart the bonds of our polity.
Earlier, in Navarro v. Navarro,33 the penalty of suspension was
imposed on a court employee for maintaining illicit relations with a
woman not his wife, thus:
Time and again we have stressed adherence to the principle that
public office is a public trust. All government officials and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. This constitutional
mandate should always be in the minds of all public servants to guide
them in their actions during their entire tenure in the government
service. The good of the service and the degree of morality which
every official and employee in the public service must observe, if
respect and confidence are to be maintained by the Government in
the enforcement of the law, demand that no untoward conduct on his
part, affecting morality, integrity and efficiency while holding office
should be left without proper and commensurate sanction, all
attendant circumstances taken into account.
The exacting standards of ethics and morality imposed upon court
judges and court employees are required to maintain the peoples
faith in the courts as dispensers of justice, and whose image is
mirrored by their actuations. As the Court eloquently stated through
Madame Justice Cecilia Muoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and woman who work
thereat, from the judge to the least and lowest of its personnel
hence, it becomes the imperative sacred duty of each and everyone
in the court to maintain its good name and standing as a true temple
of justice.34
The high degree of moral uprightness that is demanded of employees
of the government entails many sacrifices that are peculiar to the civil
service. By aspiring to these positions, government employees are
deemed to have submitted themselves to greater scrutiny of their
conduct, all in the pursuit of a professional civil service. The Court has
repeatedly applied these principles in analogous cases. 35
Immorality is punishable by suspension of six (6) months and one day
to one (1) year for the first offense and dismissal for the second
offense.36 Considering that respondents misconduct is in the nature of
a continuing offense, it must be treated as a first offense, and her
continued cohabitation with Luciano E. Quilapio, Jr. must be deemed
a second offense, which will warrant the penalty of dismissal.
 22

24
ACCORDINGLY, I vote that respondent Soledad S. Escritor 98 U.S. 145; 25 L.Ed. 244 (1879).
is GUILTY of immorality and disgraceful conduct and should
be SUSPENDED for a period of Six (6) months and One day without 25
pay, with a warning that the continuance of her illicit cohabitation with Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.
Luciano D. Quilapio, Jr. shall be deemed a second offense which shall
warrant the penalty of dismissal. 26
Supra.

CONSUELO YNARES-SANTIAGO 27
G.R. No. 95770, 1 March 1993, 219 SCRA 256.
Associate Justice
28
319 U.S. 624 (1943).

Footnotes
29
American Bible Society v. City of Manila, 101 Phil. 386 (1957).
1
Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235
30
SCRA 290. Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No.
MTJ-92-691, 10 September 1993, 226 SCRA 193.
2
De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.
31
380 Phil. 555 (2000).
3
Revised Administrative Code, Book V, Title I, Subtitle A, Section 46
32
(b) (5). A.M. No. RTJ-99-1509, 8 August 2002.

33
4
Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946). A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.

34
5
Oxford Universal Dictionary, Vol. 2, p. 1280. Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9
January 1992, 205 SCRA 21 and Sy v. Cruz, 321 Phil. 231 [1995].
6
Id., p. 961.
35
Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001; Alday
v. Cruz, A.M. No. RTJ-00-1530, 14 March 2001, 354 SCRA 322.
7
Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva,
116 Phil. 1208 (1962); Reyes v. Wong, A.M. No. 547, 29 January
36
1975, 63 SCRA 668. Civil Service Rules, Rule XIV, Section 23 (o).

8
Revised Penal Code, Art. 333.

9
Revised Penal Code, Art. 334.

10
Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule
110, Section 5.

11
Reyes v. Wong, supra.

12
Supra.

13
Lacuata v. Bautista, supra.

14
Supra.

15
339 Phil. 510 (1997).

16
A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.

17
220 Phil. 49 (1985).

18
E.O. 292, Sec. 46 (5).

19
Art. 334.

20
Rollo, Exhibits "1" and "2", pp. 14-15.

21
TSN, October 12, 2000, pp. 11-15.

22
Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.

23
Art. 334.
 23
DISSENTING OPINION
CARPIO, J.:
I maintain my dissent from the majority opinion as it now orders the
dismissal of the administrative complaint filed by petitioner Alejandro
Estrada against respondent Soledad S. Escritor.
The majority opinion relies heavily on Sherbert v. Verner 1 in upholding
Escritors claim of exemption from administrative liability grounded on
her religious belief as a member of the Jehovahs Witnesses. This
religious sect allows Escritors cohabitation with Luciano D. Quilapio,
Jr., who has a subsisting marriage with another woman.
The compelling state interest test espoused in Sherbert has been
abandoned more than 15 years ago by the U.S. Supreme Court in
the Employment Division v. Smith 2 cases. In the Smith cases, the
U.S. Supreme Court set aside the balancing test for religious
minorities laid down in Sherbert. Instead, the U.S. Supreme Court
ruled categorically in the Smith cases that the guarantee of religious
liberty as embodied in the Free Exercise Clause does not require the
grant of exemptions from generally applicable laws to individuals
whose religious practice conflict with those laws.
In the first Employment Division v. Smith (Smith I),3 petitioner
denied respondents application for unemployment compensation
benefits under an Oregon statute declaring ineligible for benefits
employees discharged for work-related misconduct. The misconduct
for which respondents were discharged from their jobs consisted of
their ingesting peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of their Native American Church. The Oregon
Supreme Court ruled that although the denials of benefits were proper
under Oregon law, Sherbert required the Oregon Supreme Court to
hold that the denials significantly burdened respondents religious
freedom in violation of the Free Exercise Clause. The Oregon
Supreme Court did not attach significance to the fact that peyote
possession is a felony in Oregon.
The U.S. Supreme Court vacated the Oregon Supreme Courts
judgment and ordered the remand of the case for a definitive ruling on
whether the religious use of peyote is legal in Oregon. The U.S.
Supreme Court deemed the legality or illegality of the questioned
conduct critical in its analysis of respondents claim for protection
under the Free Exercise Clause.
In Smith I, the U.S. Supreme Court distinguished respondents
conduct with that involved in Sherbert, thus:
x x x In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals
Commn of Fla.,4 the conduct that gave rise to the termination of
employment was perfectly legal; indeed, the Court assumed that it
was immune from state regulation. 5 The results we reached in
Sherbert, Thomas and Hobbie might well have been different if the
employees had been discharged for engaging in criminal conduct. x x
x The protection that the First Amendment provides to "legitimate
claims to the free exercise of religion" does not extend to conduct that
a State has validly proscribed.6 (Emphasis supplied)
In the second Employment Division v. Smith (Smith II),7 the Oregon
Supreme Court held on remand that respondents religiously inspired
use of peyote fell within the prohibition of the Oregon statute
classifying peyote as a "controlled substance" and punishing its
possession as a felony. Although the Oregon Supreme Court noted
that the statute makes no exception for the sacramental use of
peyote, it still concluded that the prohibition was not valid under the
Free Exercise Clause.
The U.S. Supreme Court reversed the Oregon Supreme Court. The
U.S. Supreme Court ruled that a claim of exemption from a generally
applicable law grounded on the right of free exercise could not be
evaluated under the compelling state interest test of Sherbert,
particularly where such law does not violate other constitutional
protections. The U.S. Supreme Court expressly declared:
x x x We have never held that an individuals religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate. x x x 8
xxxx
The only decisions in which we have held that the First Amendment
bars application of a neutral, generally applicable law to religiously
motivated action have involved not the Free Exercise Clause alone,
but the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press. x x x 9
Respondents argue that even though exemption from generally
applicable criminal laws need not automatically be extended to
religiously motivated conduct, at least the claim for a religious
exemption must be evaluated under the balancing test set forth in
Sherbert v. Verner. x x x In recent years we have abstained from
applying the Sherbert test (outside the unemployment compensation
field) at all. x x x10
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. x x x 11 (Emphasis
supplied)
 24
What the Smith cases teach us is that the compelling state interest
test in Sherbert is not the correct test in determining the legitimacy of
a claim of exemption from generally applicable, religion-neutral laws
that have the incidental effect of burdening particular religious
practice. Any such claim for exemption should be analyzed by
considering whether the conduct in question is one that "the State has
validly proscribed," irrespective of the sincerity or centrality of an
individuals religious beliefs.
Here, Escritor is indisputably engaged in criminal conduct. Escritors
continued cohabitation with Quilapio is patently in violation of Article
334 of the Revised Penal Code on concubinage. Article 334 makes no
exception for religiously sanctioned cohabitation such as that existing
between Escritor and Quilapio. The majority opinion in fact concedes
that the present case involves a claim of exemption "from a law of
general applicability that inadvertently burdens religious
exercise."12 The majority opinion even concedes further that the
conduct in question is one "which Philippine law and jurisprudence
consider both immoral and illegal." 13 And yet, the majority opinion
expediently brushes aside the illegality of Escritors questioned
conduct using the obsolete compelling state interest test in Sherbert.
The majority opinion mentions two "opposing strains of jurisprudence
on the religion clauses" in U.S. history, namely, separation or strict
neutrality and benevolent neutrality or accommodation. The majority
opinion asserts that the framers of our 1935, 1973, and 1987
Constitutions intended to adopt a benevolent neutrality approach in
interpreting the religion clauses, i.e., the Establishment and Free
Exercise Clauses. The majority opinion then reasons that in
determining claims of exemption based on freedom of religion, this
Court must adopt the compelling state interest test laid down by the
U.S. Supreme Court in Sherbert, which according to the majority, best
exemplifies the benevolent neutrality approach. Hence, even as the
majority opinion acknowledges that the U.S. Supreme Court in the
Smith cases has abandoned the compelling state interest test
espoused in Sherbert, the majority opinion dismisses this
abandonment in its analysis of Escritors free exercise exemption
claim by simply labeling the Smith cases as exemplifying the strict
neutrality approach.
The majority opinion blatantly ignores that whatever theory may be
current in the United States whether strict neutrality, benevolent
neutrality or some other theory the undeniable fact is what is
clearly stated in Smith II:
x x x We have never held that an individuals religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate. x x x 14
Thus, from the 1879 case of Reynolds v. U.S. 15 on the practice of
polygamy by Mormons to the 1988 and 1990 Smith cases on the use
of prohibited drugs by native American Indians, the U.S. Supreme
Court has consistently held that religious beliefs do not excuse any
person from liability for violation of a valid criminal law of general
application. The majority opinion simply refuses to face and accept
this reality.
The present case involves conduct that violates Article 334 of the
Revised Penal Code, a provision of law that no one challenges as
unconstitutional. Clearly, the theories invoked in the majority opinion
have no application to the present case based on an unbroken line of
U.S. Supreme Court decisions. In any event, we shall discuss for
academic purposes the merits of the theories advanced in the
majority opinion.
While the majority opinion only mentions separation and benevolent
neutrality, a close reading of the major U.S. Supreme Court opinions
specifically relating to the religion clauses presents three principal
theories at play, namely, (a) the strict separation or "no aid" theory, (b)
the governmental neutrality theory, and (c) the accommodation or
benevolent neutrality theory.16
The strict separation or "no aid" theory holds that the establishment
clause viewed in conjunction with the free exercise clause requires a
strict separation of church and state and that government can do
nothing which involves governmental support of religion or which is
favorable to the cultivation of religious interests. 17 This theory found its
first expression in the case of Everson v. Board of Education, 18 which
espoused the "no aid" principle. Thus, the government cannot by its
programs, policies, or laws do anything to aid or support religion or
religious activities.19
Everson upheld the validity of a New Jersey statute authorizing bus
fare reimbursement to parents of parochial, as well as public school
children. Apparently, the strict interpretation or "no aid" theory
prohibits state benefits to a particular sect or sects only, but does not
prohibit benefits that accrue to all, including one or more
sects. Everson did not involve religiously motivated conduct that
constituted a violation of a criminal statute.
Under the governmental neutrality theory, the establishment clause
requires government to be neutral on religious matters. 20 This theory
was articulated by Mr. Justice Clark in the case of Abington School
District v. Schempp,21 where he stated that what the Constitution
requires is "wholesome neutrality," i.e., laws and governmental
programs must be directed to secular ends and must have a primary
effect that neither advances nor inhibits religion. 22 This test as stated
by Mr. Justice Clark embodies a theory of strict neutrality 23 thus,
the government may not use the religious factor as a basis for
classification with the purpose of advancing or inhibiting religion:
The place of religion in our society is an exalted one, achieved
through a long tradition of reliance on the home, the church and the
inviolable citadel of the individual heart and mind. We have come to
recognize through bitter experience that it is not within the power of
government to invade that citadel, whether its purpose or effect be to
aid or oppose, to advance or retard. In the relationship between man
and religion, the state is firmly committed to a position of
neutrality.24 (Italics supplied)
However, the concept of governmental neutrality can be interpreted in
various ways to some, anything but total neutrality is anathema; to
others, "neutrality can only mean that government policy must place
religion at neither a special advantage nor a special disadvantage." 25
Schempp struck down a Pennsylvania law allowing the recitation of
the Lords Prayer and the reading of the Bible without comment in
public schools, although the recitation and reading were voluntary and
did not favor any sect. Schempp did not involve religiously motivated
conduct that constituted a violation of a criminal statute.
The accommodation theory provides that any limitation derived from
the establishment clause on cannot be rigidly applied so as to
preclude all aid to religion and that in some situations government
must, and in other situations may, accommodate its policies and laws
in the furtherance of religious freedom.26 The accommodation theory
found its first expression in Zorach v. Clauson. 27 The U.S. Supreme
Court held in Zorach that a state could authorize an arrangement
whereby public school children could be released one hour a week for
religious instruction off the school premises. Zorach did not involve
religiously motivated conduct that constituted a violation of a criminal
statute.
In his book Religion and the Constitution published in 1964, Professor
Paul G. Kauper used the term "benevolent neutrality" in the following
context:
It would be a mistake, however, to suggest that the theory of
accommodation x x x is unrelated to other ideas and theories that
have been developed, notably the no-aid and neutrality concepts.
Rather, accommodation, instead of being viewed as a wholly
independent theory of interpretation, should be seen as a modification
of the no-aid or neutrality concepts. x x x
These ideas cannot be pressed to their absolute limit. Not only must
the no-aid or neutrality concept be subordinated to the necessities of
free exercise, but an area of legislative discretion must be allowed
where a state may choose to advance the cause of religious freedom
even at the expense of not being completely neutral. Indeed, this may
 25
be described as the larger or benevolent neutrality.28 (Emphasis and
italics supplied)
Six years later, the U.S. Supreme Court used the term "benevolent
neutrality" for the first time in Walz v. Tax Commission. 29 In Walz, the
U.S. Supreme Court sustained the constitutionality of tax exemption
of property used exclusively for religious purposes on the basis of
"benevolent neutrality," as follows:
The Court has struggled to find a neutral course between the two
Religion Clauses, both of which are cast in absolute terms, and either
of which, if expanded to a logical extreme, would tend to clash with
the other. x x x
xxxx
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose of
these provisions, which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited. The general principle
deducible from the First Amendment and all that has been said by the
Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short
of those expressly proscribed governmental acts there is room for
play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.30 (Emphasis and italics supplied)
At issue in Walz was a provision in New Yorks Constitution
authorizing property tax exemptions to religious organizations for
religious properties used solely for religious worship. Walz did not
involve religiously motivated conduct that constituted a violation of a
criminal statute.
The majority opinion cited the case of Walz in support of its assertion
that the framers of the 1935 Constitution intended to adopt the
benevolent neutrality approach in the interpretation of the religion
clauses, viz.:
x x x With the inclusion of the church property tax exemption in the
body of the 1935 Constitution and not merely as an ordinance
appended to the Constitution, the benevolent neutrality referred to in
the Walz case was given constitutional imprimatur under the regime
of the 1935 Constitution. x x x
The U.S. Supreme Court decided Walz only in 1970, more than three
decades after the adoption of our 1935 Constitution. It is certainly
doubtful whether the framers of our 1935 Constitution intended to give
"constitutional imprimatur" to a theory of interpretation espoused in a
case that was yet to be formulated. Moreover, when the U.S.
Supreme Court upheld the constitutionality of church property tax
exemption on the basis of "benevolent neutrality," it did so on grounds
that no particular religion is singled out for favorable treatment, and
partly on historical grounds that church tax exemptions have been
accepted without challenge in all states for most of the nations
history.31
The majority opinion vigorously argues the merits of adopting the
theory of accommodation in the interpretation of our Constitution's
religion clauses. However, the majority opinion fails to mention that a
distinction is often drawn by courts and commentators
between mandatory accommodation and permissive
accommodation. Mandatory accommodation is exemplified by the key
idea in Sherbert that exemptions from generally applicable laws are
required by force of the Free Exercise Clause, 32 which the majority
opinion adheres to in granting Escritors claim of free exercise
exemption.
Permissive accommodation refers to exercises of political discretion
that benefit religion, and that the Constitution neither requires nor
forbids.33 The U.S. Supreme Court recognized in Smith II that
although the Free Exercise Clause did not require permissive
accommodation, the political branches could shield religious exercise
through legislative accommodation,34 for example, by making an
exception to proscriptive drug laws for sacramental peyote use.
Professor Michael W. McConnell, whose views on the
accommodation theory were frequently quoted by the majority
opinion, defends mandatory accommodation. 35 However, Prof.
Kauper, likewise an accommodationist, favors permissive
accommodation, stating that "as a general proposition, no person
should be allowed to claim that because of his religion he is entitled
as a matter of constitutional right to claim an exemption from general
regulatory and tax laws." 36 Prof. Kauper further explains his position
that religious liberty furnishes no ground for claiming immunity to laws
which place reasonable restrictions on overt conduct in the
furtherance of public interests protected by the states police
power,37 as follows:
Where the issue is not the use of governmental power to sanction
religious belief and practices by some positive program but the
granting of exemption on religious grounds from laws of general
operation, what determines whether the government is required, or
permitted, to make the accommodation? While a state may
appropriately grant exemptions from its general police and tax laws, it
should not be constitutionally required to do so unless this immunity
can properly be claimed as part of the constitutional guarantee of
religious liberty. Thus, exemptions from property tax and military
service, health and labor laws should be at the discretion of
government. Whether Sherbert carried the principle of required
accommodation too far is debatable. It may well be that the court here
undertook a determination of questions better left to the legislature
and that in this area, x x x the policy of granting exemptions on
religious grounds should be left to legislative
discretion.38 (Emphasis supplied)
It is true that a test needs to be applied by the Court in determining
the validity of a free exercise claim of exemption as made here by
Escritor. The compelling state interest test in Sherbert pushes the
limits of religious liberty too far, and so too does the majority opinion
insofar as it grants Escritor immunity to a law of general operation on
the ground of religious liberty. Making a distinction between
permissive accommodation and mandatory accommodation is more
critically important in analyzing free exercise exemption claims. Such
limitations forces the Court to confront how far it can validly set the
limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive
American jurisprudence (such as the Smith cases) just because it
does not espouse the theory selected.
Theories are only guideposts and "there is no magic formula to settle
all disputes between religion and the law, no legal pill to ease the pain
of perceived injustice and religious oppression, and certainly no
perfect theory to bind judges or legislators." 39 The Smith cases,
particularly Smith II, cannot be so easily dismissed by the majority
opinion and labeled as "best exemplifying the strict neutrality
approach." The Smith Court affirmed the power and the discretion of
legislatures to enact statutory protection beyond what the Free
Exercise Clause required. The U.S. Supreme Court indicated in Smith
II that legislatures could enact accommodations to protect religion
beyond the Free Exercise Clause minimum without "establishing"
religion and thereby running afoul of the Establishment
Clause.40 What the Smith cases espouse, therefore, is not really the
strict neutrality approach, but more of permissive accommodation. 41
Even assuming that the theory of benevolent neutrality and the
compelling state interest test are applicable, the State has a
compelling interest in exacting from everyone connected with the
dispensation of justice, from the highest magistrate to the lowest of its
personnel, the highest standard of conduct. This Court has repeatedly
held that "the image of a court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and women who work
thereat."42 While arguably not constituting "disgraceful and immoral
conduct,"43 Escritors cohabitation with Quilapio is a patent violation of
our penal law on concubinage that vitiates "the integrity of court
personnel and the court itself." 44 The publics faith and confidence in
the administration of justice would certainly be eroded and
undermined if tolerated within the judiciarys ranks are court
employees blatantly violating our criminal laws.
 26
I therefore maintain that Escritors admitted cohabitation with Quilapio
is sufficient basis to hold her guilty of conduct prejudicial to the best
interest of the service and to impose upon her the appropriate penalty.
Equally compelling is the States interest in the preservation of
marriage and the family as basic social institutions, 45 which is
ultimately the public policy underlying Articles 334 and 349 of the
Revised Penal Code. This Court has recognized in countless cases
that marriage and the family are basic social institutions in which the
State is vitally interested46 and in the protection of which the State has
the strongest interest.47 In Domingo v. Court of Appeals,48 the Court
stressed that:
Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as such, it
"shall be protected by the State." x x x So crucial are marriage and
the family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
stipulation.
The same sentiment has been expressed in Article 149 of the Family
Code:
The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect. (Emphasis supplied)
And yet, notwithstanding the foregoing compelling state interests at
stake, the majority all too willingly and easily places them in jeopardy
by upholding Escritors claim of exemption. On this point, Professor
William P. Marshall aptly observes that one of the problems involved
in free exercise exemption analysis is that it requires the Court to
weigh the state interest against the interest of the narrower class
comprised only of those seeking exemption. On the other hand, in
other doctrinal areas, the Court balances the state interest in the
regulation at issue against the interests of the regulated class taken
as a whole. Prof. Marshall persuasively argues that this leads to both
unpredictability in the exemption balancing process and potential
inconsistency in result "as each regulation may be subject to limitless
challenges based upon the peculiar identity of the
challenger."49 Moreover, Prof. Marshall notes that the exemption
balancing process necessarily leads to underestimating the strength
of the countervailing state interest. 50 Indeed, the state interest in a
challenged regulation will seldom be seriously threatened if only a few
persons seek exemption from it.51
In dismissing the administrative complaint against Escritor, the
majority opinion effectively condones and accords a semblance of
legitimacy to her patently unlawful cohabitation with Quilapio, while in
the eyes of the law, Quilapio remains married to his legal wife. This
condonation in fact facilitates the circumvention by Escritor and
Quilapio of Articles 334 and 349 of the Revised Penal Code on
concubinage and bigamy.52 Without having his first marriage legally
dissolved, Quilapio can now continue to cohabit with Escritor with
impunity. How do we reconcile this scenario with the Constitutions
emphatic declaration that marriage is "an inviolable social institution"?
53
By choosing to turn a blind eye to Escritors criminal conduct, the
majority is in fact recognizing and according judicial imprimatur to a
practice, custom or agreement that subverts marriage, albeit one that
is sanctioned by a particular religious sect. The majoritys opinion here
bestows "a credibility and legitimacy upon the religious belief in
question simply by its being judicially recognized as constitutionally
sacrosanct."54 This is another problem that arises in free exercise
exemption analysis the benevolent neutrality approach fails to take
into account the role that equality plays in free exercise theory. 55 While
the text of the Free Exercise Clause is consistent with protecting
religion from discrimination, it does not compel discrimination in favor
of religion.56 However, the benevolent neutrality approach promotes
its own form of inequality when under it, exemptions are granted only
to religious claimants like Escritor, whose religiously-sanctioned but
otherwise illegal conjugal arrangement with Quilapio acquires a
veneer of "special judicial reinforcement." 57
Catholics may secure a church annulment of their marriage. A church
annulment does not exempt Catholics from criminal or administrative
liability if they cohabit with someone other than their legal spouse
before their marriage is finally annulled by a civil court. Catholics
cannot legally justify before civil courts such act of concubinage on
the ground that the act conforms to their religious beliefs because
they have a secured a church annulment which freed them from their
marital vows. If this Court condones Escritors act of concubinage on
religious grounds, then it will have to condone acts of concubinage by
Catholics who have secured church annulment of their marriage even
without a final annulment from a civil court. The majority pushes their
opinion on a slippery slope.
It may well be asked how, under a well-meaning but overly solicitous
grant of exemption based on the Freedom of Exercise Clause of our
Constitution, an individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is what the majority
opinion has effectually granted Escritor in dismissing the
administrative complaint against her. The accommodation of Escritors
religious beliefs under the benevolent neutrality approach is too high a
price to pay when weighed against its prejudicial effect on the sound
administration of justice and the protection of marriage and the family
as basic social institutions.
Finally, there is even no claim here that concubinage is central to the
religious belief of the Jehovahs Witnesses, or even a part of the
religious belief of the Jehovahs Witnesses. Escritor merely claims
that her live-in arrangement with a married man is, in the words of the
majority opinion, "in conformity with her and her partners religious
belief." This case is not an issue of a statute colliding with centrally or
vitally held beliefs of a religious denomination, as in the case of
Sherbert. This case is about a religious cover for an obviously criminal
act.
In Sherbert, the conduct in question was the refusal of a member of
the Seventh Day Adventist Church to work on the Sabbath Day or on
Saturdays, which prevented prospective employers from giving
petitioner in Sherbert employment. Petitioner in Sherbert then claimed
unemployment benefits, which the State denied because the law
withheld benefits to those who failed without good cause to accept
available suitable work. In Sherbert, the questioned conduct the
refusal to work on Saturdays was part of the religious tenets of the
Seventh Day Adventists. The questioned conduct in Sherbert was not
a criminal conduct, unlike the questioned conduct of Escritor in this
case. Clearly, even assuming for the sake of argument that Sherbert
remains good law in the United States and thus has some persuasive
force here, still Sherbert is patently inapplicable to the present case.
The positive law and the institutions of government are concerned not
with correct belief but with overt conduct related to good order, peace,
justice, freedom, and community welfare. 58 Hence, while there are
times when government must adapt to, or acquiesce to meet the
needs of religious exercise, there are also times when the exercises a
religion wishes to pursue must be adapted or even prohibited in order
to meet the needs of public policy.59 For indeed, even religious liberty
has its limits. And certainly, "there is a price to be paid, even by
religion, for living in a constitutional democracy." 60
Certainly, observance of provisions of the Revised Penal Code,
whose validity or constitutionality are not even challenged, is a price
that all religions in the Philippines must willingly pay for the sake of
good order and peace in the community. To hold otherwise would, as
aptly stated in Reynolds v. U.S.,61 "make the professed doctrines of
religious belief superior to the law of the land," and in effect "permit
every citizen to become a law unto himself." The majority opinion will
make every religion a separate republic, making religion a haven for
criminal conduct that otherwise would be punishable under the laws of
the land. Today concubinage, tomorrow bigamy, will enjoy protection
from criminal sanction under the new doctrine foisted by the majority
opinion.
Accordingly, I vote to suspend respondent Soledad S. Escritor for six
months and one day without pay for conduct prejudicial to the best
interest of the service. However, the suspension shall be lifted
immediately upon Escritors manifestation to this Court that she has
ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent
 27

25
Escritor is warned that her continued cohabitation with Quilapio, Abraham, H. and Perry, B., op. cit., at 280.
during or after her suspension and while Quilapios marriage with his
legal wife still subsists, shall merit the penalty of dismissal from the 26
service. Kauper, op. cit., at 59.

27
ANTONIO T. CARPIO 343 U.S. 306 (1952).
Associate Justice
28
Id. at 75.

Footnotes 29
397 U.S. 664 (1970).

1
374 U.S. 398 (1963). 30
Id. at 668-669.

2
485 U.S. 660 (1988) and 494 U.S. 872 (1990). 31
Abraham, H. and Perry, B., op. cit., at Table 6.3.

3
485 U.S. 660 (1988). 32
Ira C. Lupu, The Trouble with Accommodation, 60(3) Geo. Wash. L.
Rev. 743, 751 (1992).
4
Citations omitted.
33
Id.
5
In Sherbert, the appellant was discharged because she would not
work on Saturday, the Sabbath Day of her faith. 34
Anne Y. Chiu, When Prisoners Are Weary and Their Religious
Exercise Burdened, RLUIPA Provides Some Rest for their Souls, 79
6
Employment Division v. Smith, supra note 3 at 670-671. Wash. L. Rev. 999 (2004). In this article, Chiu defines "legislative
accommodation" as a statute enacted by the legislature to lift a
neutral, generally applicable burden on religion imposed by the
7
494 U.S. 872 (1990). government.

8 35
Id. at 878-879. Michael W. McConnell, Accommodation of Religion: An Update and
a Response to the Critics, 60(3) Geo. Wash. L. Rev. 685, 687-688
9
(1992).
Id. at 881.
36
10
Kauper, op. cit., at 17.
Id. at 882-883.
37
11
Id. at 38.
Id at 884.
38
12
Id. at 78-79.
Estrada v. Escritor, 455 Phil. 574 (2003).
39
13
Weber, P., Equal Separation: Understanding the Religion Clauses of
Id. at 593. the First Amendment 154 (1990).

14
Employment Division v. Smith, supra note 7 at 878-879. 40
Anne Y. Chiu, op. cit.

15
98 U.S. 145 (1878). 41
Ira C. Lupu, op. cit., at 751, note 33.

16
Kauper, P., Religion and the Constitution 59 (1964). See also 42
Villaraza v. Atienza, 195 Phil. 383, 390 (1981).
Abraham, H. and Perry, B., Freedom and the Court: Civil Rights and
Liberties in the United States 270 (7th ed., 1998).
43
See Dissenting Opinion, J. Carpio in Escritor v. Estrada, op.
17
cit., see note 12.
Id.
44
18
Ganaden v. Bolasco, 64 SCRA 50, 53 (1975).
330 U.S. 1 (1947).
45
19
Section 2, Article XV and Section 12, Article II, 1987 Constitution.
Kauper, op. cit., at 61.
46
20
Goitia v. Campos-Rueda, 35 Phil. 252 (1919); Brown v. Yambao,
Abraham, H. and Perry, B., Freedom and the Court: Civil Rights and 102 Phil. 168, 172 (1957).
Liberties in the United States 272-73 (7th ed., 1998).
47
21
Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and 96715, 203
374 U.S. 203 (1963). SCRA 750,761 (1991).

22
Kauper, op. cit., at 64. 48
G.R. No. 104818, 226 SCRA 572, 584 (1993).

23
Id. at 65. 49
William P. Marshall, In Defense of Smith and Free Exercise
Revisionism, 58 U. Chi. L. Rev. 308, 311-312 (1991).
24
Abington School District v. Schempp, supra note 15 at 226.
50
Id.
 28

Lemon v. Kurtzman, 403 U.S. 602 (1971)

51
Id.

52
Lemon v. Kurtzman
Bigamy is an illegal marriage by contracting a second or
subsequent marriage before the first marriage has been legally
dissolved. It is interesting to note that, while Escritor and Quilapio No. 89
both executed a "Declaration of Pledging Faithfulness," such
execution was unaccompanied by any religious ceremony officiated
by a presiding minister of the Jehovahs Witnesses. Precisely, such Argued March 3, 1971
ceremony would have constituted a violation of Article 352 of the
Revised Penal Code prohibiting the performance of an illegal
marriage ceremony by priests or ministers of any religious Decided June 28, 1971*
denomination or sect.
403 U.S. 602

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

Rhode Island's 1969 Salary Supplement Act provides for a 15%

salary supplement to be paid to teachers in nonpublic schools at
which the average per-pupil expenditure on secular education is
below the average in public schools. Eligible teachers must teach
only courses offered in the public schools, using only materials
used in the public schools, and must agree not to teach courses in
religion. A three-judge court found that about 25% of the State's
elementary students attended nonpublic schools, about 95% of
whom attended Roman Catholic affiliated schools, and that to
date about 250 teachers at Roman Catholic schools are the sole
beneficiaries under the Act. The court found that the parochial
school system was "an integral part of the religious mission of the
Catholic Church," and held that the Act fostered "excessive
entanglement" between government and religion, thus violating
the Establishment Clause. Pennsylvania's Nonpublic Elementary
and Secondary Education Act, passed in 1968, authorizes the state
Superintendent of Public Instruction to "purchase" certain "secular
educational services" from nonpublic schools, directly reimbursing
those schools solely for teachers' salaries, textbooks, and
instructional materials. Reimbursement is restricted to courses in
specific secular subjects, the textbooks and materials must be
approved by the Superintendent, and no payment is to be made
for any course containing "any subject matter expressing religious
teaching, or the morals or forms of worship of any sect." Contracts
were made with schools that have more than 20% of all the
students in the State, most of which were affiliated with the
Roman Catholic Church. The complaint challenging the
constitutionality of

Page 403 U. S. 603

the Act alleged that the church-affiliated schools are controlled by

religious organizations, have the purpose of propagating and
promoting a particular religious faith, and conduct their
operations to fulfill that purpose. A three-judge court granted the
State's motion to dismiss the complaint for failure to state a claim
for relief, finding no violation of the Establishment or Free Exercise
Clause.

Held: Both statutes are unconstitutional under the Religion

Clauses of the First Amendment, as the cumulative impact of the
entire relationship arising under the statutes involves excessive
entanglement between government and religion. Pp.403 U. S. 611-
625.
U.S. Supreme Court
 29
(a) The entanglement in the Rhode Island program arises because
of the religious activity and purpose of the church-affiliated
schools, especially with respect to children of impressionable age
in the primary grades, and the dangers that a teacher under
religious control and discipline poses to the separation of religious
from purely secular aspects of elementary education in such
schools. These factors require continuing state surveillance to
ensure that the statutory restrictions are obeyed and the First
Amendment otherwise respected. Furthermore, under the Act, the
government must inspect school records to determine what part
of the expenditures is attributable to secular education, as
opposed to religious activity, in the event a nonpublic school's
expenditures per pupil exceed the comparable figures for public
schools. Pp. 403 U. S. 615-620.
(b) The entanglement in the Pennsylvania program also arises
from the restrictions and surveillance necessary to ensure that
teachers play a strictly nonideological role and the state
supervision of nonpublic school accounting procedures required
to establish the cost of secular, as distinguished from religious,
education. In addition, the Pennsylvania statute has the further
defect of providing continuing financial aid directly to the church-
related schools. Historically, governmental control and
surveillance measures tend to follow cash grant programs, and
here the government's post-audit power to inspect the financial
records of church-related schools creates an intimate and
continuing relationship between church and state. Pp. 403 U. S.
620-622.
(c) Political division along religious lines was one of the evils at
which the First Amendment aimed, and in these programs, where
successive and probably permanent annual appropriations that
benefit relatively few religious groups are involved, political
Page 403 U. S. 604
fragmentation and divisiveness on religious lines are likely to be
intensified. Pp. 403 U. S. 622-624.
(d) Unlike the tax exemption for places of religious worship,
upheld in Walz v. Tax Commission, 397 U. S. 664, which was based
on a practice of 200 years, these innovative programs have self-
perpetuating and self-expanding propensities which provide a
warning signal against entanglement between government and
religion. Pp. 624-625.
No. 89, 310 F.Supp. 35, reversed and remanded; Nos. 569 and 570,
316 F.Supp. 112, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which BLACK,
DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and
570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring
opinion, post, p. 403 U. S. 625, in which BLACK, J., joined, and in
which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a
separate statement, post, p. 403 U. S. 642. BRENNAN, J., filed a
concurring opinion, post, p. 403 U. S. 642. WHITE, J., filed an
opinion concurring in the judgment in No. 89 and dissenting in
Nos. 569 and 570, post, p. 403 U. S. 661. MARSHALL, J., took no
part in the consideration or decision of No. 89.
Page 403 U. S. 606
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
These two appeals raise questions as to Pennsylvania and Rhode
Island statutes providing state aid to church-related elementary
and secondary schools. Both statutes are challenged as violative of
the Establishment and Free Exercise Clauses of the First
Amendment and the Due Process Clause of the Fourteenth
Amendment.
Pennsylvania has adopted a statutory program that provides
financial support to nonpublic elementary and
Page 403 U. S. 607
secondary schools by way of reimbursement for the cost of
teachers' salaries, textbooks, and instructional materials in
specified secular subjects. Rhode Island has adopted a statute
under which the State pays directly to teachers in nonpublic
elementary schools a supplement of 15% of their annual salary.
Under each statute, state aid has been given to church-related
educational institutions. We hold that both statutes are
unconstitutional.
I
The Rhode Island Statute
The Rhode Island Salary Supplement Act [Footnote 1] was enacted
in 1969. It rests on the legislative finding that the quality of
education available in nonpublic elementary schools has been
jeopardized by the rapidly rising salaries needed to attract
competent and dedicated teachers. The Act authorizes state
officials to supplement the salaries of teachers of secular subjects
in nonpublic elementary schools by paying directly to a teacher an
amount not in excess of 15% of his current annual salary. As
supplemented, however, a nonpublic school teacher's salary
cannot exceed the maximum paid to teachers in the State's public
schools, and the recipient must be certified by the state board of
education in substantially the same manner as public school
teachers.
In order to be eligible for the Rhode Island salary supplement, the
recipient must teach in a nonpublic school at which the average
per-pupil expenditure on secular education is less than the
average in the State's public schools during a specified period.
Appellant State Commissioner of Education also requires eligible
schools to submit financial data. If this information indicates a per-
pupil expenditure in excess of the statutory limitation,
Page 403 U. S. 608
the records of the school in question must be examined in order
to assess how much of the expenditure is attributable to secular
education and how much to religious activity. [Footnote 2]
The Act also requires that teachers eligible for salary supplements
must teach only those subjects that are offered in the State's
public schools. They must use "only teaching materials which are
used in the public schools." Finally, any teacher applying for a
salary supplement must first agree in writing "not to teach a
course in religion for so long as or during such time as he or she
receives any salary supplements" under the Act.
Appellees are citizens and taxpayers of Rhode Island. They
brought this suit to have the Rhode Island Salary Supplement Act
declared unconstitutional and its operation enjoined on the
ground that it violates the Establishment and Free Exercise
 30
Clauses of the First Amendment. Appellants are state officials
charged with administration of the Act, teachers eligible for salary
supplements under the Act, and parents of children in church-
related elementary schools whose teachers would receive state
salary assistance.
A three-judge federal court was convened pursuant to 28 U.S.C.
2281, 2284. It found that Rhode Island's nonpublic elementary
schools accommodated approximately 25% of the State's pupils.
About 95% of these pupils attended schools affiliated with the
Roman Catholic church. To date, some 250 teachers have applied
for benefits under the Act. All of them are employed by Roman
Catholic schools.
Page 403 U. S. 609
The court held a hearing at which extensive evidence was
introduced concerning the nature of the secular instruction
offered in the Roman Catholic schools whose teachers would be
eligible for salary assistance under the Act. Although the court
found that concern for religious values does not necessarily affect
the content of secular subjects, it also found that the parochial
school system was "an integral part of the religious mission of the
Catholic Church."
The District Court concluded that the Act violated the
Establishment Clause, holding that it fostered "excessive
entanglement" between government and religion. In addition, two
judges thought that the Act had the impermissible effect of giving
"significant aid to a religious enterprise." 316 F.Supp. 112. We
affirm.
The Pennsylvania Statute
Pennsylvania has adopted a program that has some, but not all, of
the features of the Rhode Island program. The Pennsylvania
Nonpublic Elementary and Secondary Education Act [Footnote 3]
was passed in 1968 in response to a crisis that the Pennsylvania
Legislature found existed in the State's nonpublic schools due to
rapidly rising costs. The statute affirmatively reflects the legislative
conclusion that the State's educational goals could appropriately
be fulfilled by government support of "those purely secular
educational objectives achieved through nonpublic education. . . ."
The statute authorizes appellee state Superintendent of Public
Instruction to "purchase" specified "secular educational services"
from nonpublic schools. Under the "contracts" authorized by the
statute, the State directly reimburses nonpublic schools solely for
their actual expenditures for teachers' salaries, textbooks, and
instructional materials. A school seeking reimbursement must
Page 403 U. S. 610
maintain prescribed accounting procedures that identify the
"separate" cost of the "secular educational service." These
accounts are subject to state audit. The funds for this program
were originally derived from a new tax on horse and harness
racing, but the Act is now financed by a portion of the state tax on
cigarettes.
There are several significant statutory restrictions on state aid.
Reimbursement is limited to courses "presented in the curricula of
the public schools." It is further limited "solely" to courses in the
following "secular" subjects: mathematics, modern foreign
languages, [Footnote 4] physical science, and physical education.
Textbooks and instructional materials included in the program
must be approved by the state Superintendent of Public
Instruction. Finally, the statute prohibits reimbursement for any
course that contains "any subject matter expressing religious
teaching, or the morals or forms of worship of any sect."
The Act went into effect on July 1, 1968, and the first
reimbursement payments to schools were made on September 2,
1969. It appears that some $5 million has been expended annually
under the Act. The State has now entered into contracts with some
1,181 nonpublic elementary and secondary schools with a student
population of some 535,215 pupils -- more than 20% of the total
number of students in the State. More than 96% of these pupils
attend church-related schools, and most of these schools are
affiliated with the Roman Catholic church.
Appellants brought this action in the District Court to challenge the
constitutionality of the Pennsylvania statute. The organizational
plaintiffs appellants are associations of persons resident in
Pennsylvania declaring
Page 403 U. S. 611
belief in the separation of church and state; individual plaintiffs
appellants are citizens and taxpayers of Pennsylvania. Appellant
Lemon, in addition to being a citizen and a taxpayer, is a parent of
a child attending public school in Pennsylvania. Lemon also alleges
that he purchased a ticket at a race track, and thus had paid the
specific tax that supports the expenditures under the Act.
Appellees are state officials who have the responsibility for
administering the Act. In addition seven church-related schools
are defendants appellees.
A three-judge federal court was convened pursuant to 28 U.S.C.
2281, 2284. The District Court held that the individual plaintiffs
appellants had standing to challenge the Act, 310 F.Supp. 42. The
organizational plaintiffs appellants were denied standing
under Flast v. Cohen, 392 U. S. 83, 392 U. S. 99, 101 (1968).
The court granted appellees' motion to dismiss the complaint for
failure to state a claim for relief. [Footnote 5] 310 F.Supp. 35. It
held that the Act violated neither the Establishment nor the Free
Exercise Clause, Chief Judge Hastie dissenting. We reverse.
II
In Everson v. Board of Education, 330 U. S. 1 (1947), this Court
upheld a state statute that reimbursed the parents of parochial
school children for bus transportation
Page 403 U. S. 612
expenses. There, MR. JUSTICE BLACK, writing for the majority,
suggested that the decision carried to "the verge" of forbidden
territory under the Religion Clauses. Id. at 330 U. S. 16. Candor
compels acknowledgment, moreover, that we can only dimly
perceive the lines of demarcation in this extraordinarily sensitive
area of constitutional law.
The language of the Religion Clauses of the First Amendment is, at
best, opaque, particularly when compared with other portions of
the Amendment. Its authors did not simply prohibit the
establishment of a state church or a state religion, an area history
shows they regarded as very important and fraught with great
 31
dangers. Instead, they commanded that there should be "no law
respecting an establishment of religion." A law may be one
"respecting" the forbidden objective while falling short of its total
realization. A law "respecting" the proscribed result, that is, the
establishment of religion, is not always easily identifiable as one
violative of the Clause. A given law might not establish a state
religion, but nevertheless be one "respecting" that end in the
sense of being a step that could lead to such establishment, and
hence offend the First Amendment.
In the absence of precisely stated constitutional prohibitions, we
must draw lines with reference to the three main evils against
which the Establishment Clause was intended to afford protection:
"sponsorship, financial support, and active involvement of the
sovereign in religious activity." Walz v. Tax Commission, 397 U. S.
664, 397 U. S. 668 (1970).
Every analysis in this area must begin with consideration of the
cumulative criteria developed by the Court over many years. Three
such tests may be gleaned from our cases. First, the statute must
have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits
religion, Board of Education v. Allen, 392 U. S. 236, 392 U. S.
243 (1968);
Page 403 U. S. 613
finally, the statute must not foster "an excessive government
entanglement with religion." Walz, supra, at 397 U. S. 674.
Inquiry into the legislative purposes of the Pennsylvania and
Rhode Island statutes affords no basis for a conclusion that the
legislative intent was to advance religion. On the contrary, the
statutes themselves clearly state that they are intended to
enhance the quality of the secular education in all schools covered
by the compulsory attendance laws. There is no reason to believe
the legislatures meant anything else. A State always has a
legitimate concern for maintaining minimum standards in all
schools it allows to operate. As in Allen, we find nothing here that
undermines the stated legislative intent; it must therefore be
accorded appropriate deference.
In Allen, the Court acknowledged that secular and religious
teachings were not necessarily so intertwined that secular
textbooks furnished to students by the State were, in fact,
instrumental in the teaching of religion. 392 U.S. at 392 U. S. 248.
The legislatures of Rhode Island and Pennsylvania have concluded
that secular and religious education are identifiable and
separable. In the abstract, we have no quarrel with this
conclusion.
The two legislatures, however, have also recognized that church-
related elementary and secondary schools have a significant
religious mission, and that a substantial portion of their activities
is religiously oriented. They have therefore sought to create
statutory restrictions designed to guarantee the separation
between secular and religious educational functions, and to
ensure that State financial aid supports only the former. All these
provisions are precautions taken in candid recognition that these
programs approached, even if they did not intrude upon, the
forbidden areas under the Religion Clauses. We need not decide
whether these legislative precautions restrict the principal or
primary effect of the programs to the point where they do not
offend the Religion
Page 403 U. S. 614
Clauses, for we conclude that the cumulative impact of the entire
relationship arising under the statutes in each State involves
excessive entanglement between government and religion.
III
In Walz v. Tax Commission, supra, the Court upheld state tax
exemptions for real property owned by religious organizations
and used for religious worship. That holding, however, tended to
confine, rather than enlarge, the area of permissible state
involvement with religious institutions by calling for close scrutiny
of the degree of entanglement involved in the relationship. The
objective is to prevent, as far as possible, the intrusion of either
into the precincts of the other.
Our prior holdings do not call for total separation between church
and state; total separation is not possible in an absolute sense.
Some relationship between government and religious
organizations is inevitable. Zorach v. Clauson, 343 U. S. 306, 343 U.
S. 312 (1952); Sherbert v. Verner, 374 U. S. 398, 374 U. S.
422 (1963) (HARLAN, J., dissenting). Fire inspections, building and
zoning regulations, and state requirements under compulsory
school attendance laws are examples of necessary and
permissible contacts. Indeed, under the statutory exemption
before us in Walz, the State had a continuing burden to ascertain
that the exempt property was, in fact, being used for religious
worship. Judicial caveats against entanglement must recognize
that the line of separation, far from being a "wall," is a blurred,
indistinct, and variable barrier depending on all the circumstances
of a particular relationship.
This is not to suggest, however, that we are to engage in a
legalistic minuet in which precise rules and forms must govern. A
true minuet is a matter of pure form and style, the observance of
which is itself the substantive end. Here we examine the form of
the relationship for the light that it casts on the substance.
Page 403 U. S. 615
In order to determine whether the government entanglement with
religion is excessive, we must examine the character and purposes
of the institutions that are benefited, the nature of the aid that the
State provides, and the resulting relationship between the
government and the religious authority. MR. JUSTICE HARLAN, in a
separate opinion in Walz, supra, echoed the classic warning as to
"programs, whose very nature is apt to entangle the state in
details of administration. . . ." Id. at 397 U. S. 695. Here we find
that both statutes foster an impermissible degree of
entanglement.
(a) Rhode Island program
The District Court made extensive findings on the grave potential
for excessive entanglement that inheres in the religious character
and purpose of the Roman Catholic elementary schools of Rhode
Island, to date the sole beneficiaries of the Rhode Island Salary
Supplement Act.
The church schools involved in the program are located close to
parish churches. This understandably permits convenient access
for religious exercises, since instruction in faith and morals is part
of the total educational process. The school buildings contain
identifying religious symbols such as crosses on the exterior and
 32
crucifixes, and religious paintings and statues either in the
classrooms or hallways. Although only approximately 30 minutes a
day are devoted to direct religious instruction, there are religiously
oriented extracurricular activities. Approximately two-thirds of the
teachers in these schools are nuns of various religious orders.
Their dedicated efforts provide an atmosphere in which religious
instruction and religious vocations are natural and proper parts of
life in such schools. Indeed, as the District Court found, the role of
teaching nuns in enhancing the religious atmosphere has led the
parochial school authorities
Page 403 U. S. 616
to attempt to maintain a one-to-one ratio between nuns and lay
teachers in all schools, rather than to permit some to be staffed
almost entirely by lay teachers.
On the basis of these findings, the District Court concluded that
the parochial schools constituted "an integral part of the religious
mission of the Catholic Church." The various characteristics of the
schools make them "a powerful vehicle for transmitting the
Catholic faith to the next generation." This process of inculcating
religious doctrine is, of course, enhanced by the impressionable
age of the pupils, in primary schools particularly. In short,
parochial schools involve substantial religious activity and
purpose. [Footnote 6]
The substantial religious character of these church-related schools
gives rise to entangling church-state relationships of the kind the
Religion Clauses sought to avoid. Although the District Court found
that concern for religious values did not inevitably or necessarily
intrude into the content of secular subjects, the considerable
religious activities of these schools led the legislature to provide
for careful governmental controls and surveillance by state
authorities in order to ensure that state aid supports only secular
education.
The dangers and corresponding entanglements are enhanced by
the particular form of aid that the Rhode Island Act provides. Our
decisions from Everson to Allen have permitted the States to
provide church-related schools with secular, neutral, or
nonideological services, facilities, or materials. Bus transportation,
school lunches, public health services, and secular textbooks
supplied in common to all students were not
Page 403 U. S. 617
thought to offend the Establishment Clause. We note that the
dissenters in Allen seemed chiefly concerned with the pragmatic
difficulties involved in ensuring the truly secular content of the
textbooks provided at state expense.
In Allen, the Court refused to make assumptions, on a meager
record, about the religious content of the textbooks that the State
would be asked to provide. We cannot, however, refuse here to
recognize that teachers have a substantially different ideological
character from books. In terms of potential for involving some
aspect of faith or morals in secular subjects, a textbook's content
is ascertainable, but a teacher's handling of a subject is not. We
cannot ignore the danger that a teacher under religious control
and discipline poses to the separation of the religious from the
purely secular aspects of pre-college education. The conflict of
functions inheres in the situation.
In our view, the record shows these dangers are present to a
substantial degree. The Rhode Island Roman Catholic elementary
schools are under the general supervision of the Bishop of
Providence and his appointed representative, the Diocesan
Superintendent of Schools. In most cases, each individual parish,
however, assumes the ultimate financial responsibility for the
school, with the parish priest authorizing the allocation of parish
funds. With only two exceptions, school principals are nuns
appointed either by the Superintendent or the Mother Provincial
of the order whose members staff the school. By 1969, lay
teachers constituted more than a third of all teachers in the
parochial elementary schools, and their number is growing. They
are first interviewed by the superintendent's office and then by
the school principal. The contracts are signed by the parish priest,
and he retains some discretion in negotiating salary levels.
Religious authority necessarily pervades the school system.
Page 403 U. S. 618
The schools are governed by the standards set forth in a
"Handbook of School Regulations," which has the force of synodal
law in the diocese. It emphasizes the role and importance of the
teacher in parochial schools:
"The prime factor for the success or the failure of the school is the
spirit and personality, as well as the professional competency, of
the teacher. . . ."
The Handbook also states that: "Religious formation is not
confined to formal courses; nor is it restricted to a single subject
area." Finally, the Handbook advises teachers to stimulate interest
in religious vocations and missionary work. Given the mission of
the church school, these instructions are consistent and logical.
Several teachers testified, however, that they did not inject religion
into their secular classes. And the District Court found that
religious values did not necessarily affect the content of the
secular instruction. But what has been recounted suggests the
potential, if not actual, hazards of this form of state aid. The
teacher is employed by a religious organization, subject to the
direction and discipline of religious authorities, and works in a
system dedicated to rearing children in a particular faith. These
controls are not lessened by the fact that most of the lay teachers
are of the Catholic faith. Inevitably, some of a teacher's
responsibilities hover on the border between secular and religious
orientation.
We need not and do not assume that teachers in parochial schools
will be guilty of bad faith or any conscious design to evade the
limitations imposed by the statute and the First Amendment. We
simply recognize that a dedicated religious person, teaching in a
school affiliated with his or her faith and operated to inculcate its
tenets, will inevitably experience great difficulty in remaining
religiously neutral. Doctrines and faith are not inculcated or
advanced by neutrals. With the best of intentions, such a teacher
would find it hard to make
Page 403 U. S. 619
a total separation between secular teaching and religious doctrine.
What would appear to some to be essential to good citizenship
might well for others border on or constitute instruction in
religion. Further difficulties are inherent in the combination of
religious discipline and the possibility of disagreement between
 33

teacher and religious authorities over the meaning of the statutory As we noted earlier, the very restrictions and surveillance
restrictions. necessary to ensure that teachers play a strictly nonideological
role give rise to entanglements between
We do not assume, however, that parochial school teachers will be
unsuccessful in their attempts to segregate their religious belief Page 403 U. S. 621
from their secular educational responsibilities. But the potential
for impermissible fostering of religion is present. The Rhode Island
church and state. The Pennsylvania statute, like that of Rhode
Legislature has not, and could not, provide state aid on the basis
Island, fosters this kind of relationship. Reimbursement is not only
of a mere assumption that secular teachers under religious
limited to courses offered in the public schools and materials
discipline can avoid conflicts. The State must be certain, given the
approved by state officials, but the statute excludes "any subject
Religion Clauses, that subsidized teachers do not inculcate religion
matter expressing religious teaching, or the morals or forms of
-- indeed, the State here has undertaken to do so. To ensure that
worship of any sect." In addition, schools seeking reimbursement
no trespass occurs, the State has therefore carefully conditioned
must maintain accounting procedures that require the State to
its aid with pervasive restrictions. An eligible recipient must teach
establish the cost of the secular, as distinguished from the
only those courses that are offered in the public schools and use
religious, instruction.
only those texts and materials that are found in the public schools.
In addition, the teacher must not engage in teaching any course in
religion. The Pennsylvania statute, moreover, has the further defect of
providing state financial aid directly to the church-related school.
This factor distinguishes both Everson and Allen, for, in both those
A comprehensive, discriminating, and continuing state surveillance
cases, the Court was careful to point out that state aid was
will inevitably be required to ensure that these restrictions are
provided to the student and his parents -- not to the church-
obeyed and the First Amendment otherwise respected. Unlike a
related school. Board of Education v. Allen, supra, at 392 U. S. 243-
book, a teacher cannot be inspected once so as to determine the
244; Everson v. Board of Education, supra, at 330 U. S. 18. In Walz
extent and intent of his or her personal beliefs and subjective
v. Tax Commission, supra, at 397 U. S. 675, the Court warned of
acceptance of the limitations imposed by the First Amendment.
the dangers of direct payments to religious organizations:
These prophylactic contacts will involve excessive and enduring
entanglement between state and church.
"Obviously a direct money subsidy would be a relationship
pregnant with involvement and, as with most governmental grant
Page 403 U. S. 620
programs, could encompass sustained and detailed administrative
relationships for enforcement of statutory or administrative
There is another area of entanglement in the Rhode Island standards. . . ."
program that gives concern. The statute excludes teachers
employed by nonpublic schools whose average per-pupil
The history of government grants of a continuing cash subsidy
expenditures on secular education equal or exceed the
indicates that such programs have almost always been
comparable figures for public schools. In the event that the total
accompanied by varying measures of control and surveillance. The
expenditures of an otherwise eligible school exceed this norm, the
government cash grants before us now provide no basis for
program requires the government to examine the school's records
predicting that comprehensive measures of surveillance and
in order to determine how much of the total expenditures is
controls will not follow. In particular, the government's post-audit
attributable to secular education and how much to religious
power to inspect and evaluate a church-related school's financial
activity. This kind of state inspection and evaluation of the
records and to determine which expenditures are religious and
religious content of a religious organization is fraught with the sort
of entanglement that the Constitution forbids. It is a relationship
pregnant with dangers of excessive government direction of Page 403 U. S. 622
church schools, and hence of churches. The Court noted "the
hazards of government supporting churches" in Walz v. Tax which are secular creates an intimate and continuing relationship
Commission, supra, at397 U. S. 675, and we cannot ignore here between church and state.
the danger that pervasive modern governmental power will
ultimately intrude on religion and thus conflict with the Religion
IV
Clauses.
A broader base of entanglement of yet a different character is
(b) Pennsylvania program presented by the divisive political potential of these state
programs. In a community where such a large number of pupils
are served by church-related schools, it can be assumed that state
The Pennsylvania statute also provides state aid to church-related assistance will entail considerable political activity. Partisans of
schools for teachers' salaries. The complaint describes an parochial schools, understandably concerned with rising costs and
educational system that is very similar to the one existing in Rhode sincerely dedicated to both the religious and secular educational
Island. According to the allegations, the church-related elementary missions of their schools, will inevitably champion this cause and
and secondary schools are controlled by religious organizations, promote political action to achieve their goals. Those who oppose
have the purpose of propagating and promoting a particular state aid, whether for constitutional, religious, or fiscal reasons,
religious faith, and conduct their operations to fulfill that purpose. will inevitably respond and employ all of the usual political
Since this complaint was dismissed for failure to state a claim for campaign techniques to prevail. Candidates will be forced to
relief, we must accept these allegations as true for purposes of declare, and voters to choose. It would be unrealistic to ignore the
our review. fact that many people confronted with issues of this kind will find
their votes aligned with their faith.
 34
Ordinarily, political debate and division, however vigorous or even
partisan, are normal and healthy manifestations of our democratic
system of government, but political division along religious lines
was one of the principal evils against which the First Amendment
was intended to protect. Freund, Comment, Public Aid to Parochial
Schools, 82 Harv.L.Rev. 1680, 1692 (1969). The potential
divisiveness of such conflict is a threat to the normal political
process. Walz v. Tax Commission, supra, at 397 U. S. 695 (separate
opinion of HARLAN, J.). See also Board of Education v. Allen, 392
U.S. at 392 U. S. 249 (HARLAN, J., concurring); Abington School
District v. Schempp, 374 U. S. 203, 374 U. S. 307 (1963) (Goldberg,
J., concurring). To have States or communities divide on the issues
presented by state aid to parochial schools would tend to confuse
Page 403 U. S. 623
and obscure other issues of great urgency. We have an expanding
array of vexing issues, local and national, domestic and
international, to debate and divide on. It conflicts with our whole
history and tradition to permit questions of the Religion Clauses to
assume such importance in our legislatures and in our elections
that they could divert attention from the myriad issues and
problems that confront every level of government. The highways
of church and state relationships are not likely to be one-way
streets, and the Constitution's authors sought to protect religious
worship from the pervasive power of government. The history of
many countries attests to the hazards of religion's intruding into
the political arena or of political power intruding into the
legitimate and free exercise of religious belief.
Of course, as the Court noted in Walz, "[a]dherents of particular
faiths and individual churches frequently take strong positions on
public issues." Walz v. Tax Commission, supra, at 397 U. S. 670. We
could not expect otherwise, for religious values pervade the fabric
of our national life. But, in Walz, we dealt with a status under state
tax laws for the benefit of all religious groups. Here we are
confronted with successive and very likely permanent annual
appropriations that benefit relatively few religious groups. Political
fragmentation and divisiveness on religious lines are thus likely to
be intensified.
The potential for political divisiveness related to religious belief
and practice is aggravated in these two statutory programs by the
need for continuing annual appropriations and the likelihood of
larger and larger demands as costs and populations grow. The
Rhode Island District Court found that the parochial school
system's "monumental and deepening financial crisis" would
"inescapably" require larger annual appropriations subsidizing
greater percentages of the salaries of lay teachers. Although no
facts have been developed in this respect
Page 403 U. S. 624
in the Pennsylvania case, it appears that such pressures for
expanding aid have already required the state legislature to
include a portion of the state revenues from cigarette taxes in the
program.
V
In Walz, it was argued that a tax exemption for places of religious
worship would prove to be the first step in an inevitable
progression leading to the establishment of state churches and
state religion. That claim could not stand up against more than
200 years of virtually universal practice imbedded in our colonial
experience and continuing into the present.
The progression argument, however, is more persuasive here. We
have no long history of state aid to church-related educational
institutions comparable to 200 years of tax exemption for
churches. Indeed, the state programs before us today represent
something of an innovation. We have already noted that modern
governmental programs have self-perpetuating and self-
expanding propensities. These internal pressures are only
enhanced when the schemes involve institutions whose legitimate
needs are growing and whose interests have substantial political
support. Nor can we fail to see that, in constitutional adjudication,
some steps which, when taken, were thought to approach "the
verge" have become the platform for yet further steps. A certain
momentum develops in constitutional theory, and it can be a
"downhill thrust" easily set in motion but difficult to retard or stop.
Development by momentum is not invariably bad; indeed, it is the
way the common law has grown, but it is a force to be recognized
and reckoned with. The dangers are increased by the difficulty of
perceiving in advance exactly where the "verge" of the precipice
lies. As well as constituting an independent evil against which the
Religion Clauses were intended to protect, involvement
Page 403 U. S. 625
or entanglement between government and religion serves as a
warning signal.
Finally, nothing we have said can be construed to disparage the
role of church-related elementary and secondary schools in our
national life. Their contribution has been and is enormous. Nor do
we ignore their economic plight in a period of rising costs and
expanding need. Taxpayers generally have been spared vast sums
by the maintenance of these educational institutions by religious
organizations, largely by the gifts of faithful adherents.
The merit and benefits of these schools, however, are not the
issue before us in these cases. The sole question is whether state
aid to these schools can be squared with the dictates of the
Religion Clauses. Under our system, the choice has been made
that government is to be entirely excluded from the area of
religious instruction, and churches excluded from the affairs of
government. The Constitution decrees that religion must be a
private matter for the individual, the family, and the institutions of
private choice, and that, while some involvement and
entanglement are inevitable, lines must be drawn.
The judgment of the Rhode Island District Court in No. 569 and
No. 570 is affirmed. The judgment of the Pennsylvania District
Court in No. 89 is reversed, and the case is remanded for further
proceedings consistent with this opinion.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of No. 89.
* Together with No. 569, Earley et al. v. DiCenso et al., and No.
570, Robinson, Commissioner of Education of Rhode Island, et al.
v. DiCenso et al., on appeal from the United States District Court
for the District of Rhode Island.
[Footnote 1]
R.I.Gen.Laws Ann. 16-51-1 et seq. (Supp. 1970).
[Footnote 2]
 35
The District Court found only one instance in which this
breakdown between religious and secular expenses was
necessary. The school in question was not affiliated with the
Catholic church. The court found it unlikely that such
determinations would be necessary with respect to Catholic
schools, because their heavy reliance on nuns kept their wage
costs substantially below those of the public schools.
[Footnote 3]
Pa.Stat.Ann., Tit. 24, 5601-5609 (Supp. 1971).
[Footnote 4]
Latin, Hebrew, and classical Greek are excluded.
[Footnote 5]
Plaintiffs appellants also claimed that the Act violated the Equal
Protection Clause of the Fourteenth Amendment by providing
state assistance to private institutions that discriminated on racial
and religious grounds in their admissions and hiring policies. The
court unanimously held that no plaintiff had standing to raise this
claim because the complaint did not allege that the child of any
plaintiff had been denied admission to any nonpublic school on
racial or religious grounds. Our decision makes it unnecessary for
us to reach this issue.
[Footnote 6]
See, e.g., J. Fichter, Parochial School: A Sociological Study 77-108
(1958); Giannella, Religious Liberty, Nonestablishment, and
Doctrinal Development, pt. II, The Nonestablishment Principle, 81
Harv.L.Rev. 513, 574 (1968).
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins,
concurring.
While I join the opinion of the Court, I have expressed at some
length my views as to the rationale of today's decision in these
three cases.
Page 403 U. S. 626
They involve two different statutory schemes for providing aid to
parochial schools. Lemon deals with the Pennsylvania Nonpublic
Elementary and Secondary Education Act, Laws 1968, Act No. 109.
By its terms, the Pennsylvania Act allows the State to provide
funds directly to private schools to purchase "secular educational
service" such as teachers' salaries, textbooks, and educational
materials. Pa.Stat.Ann., Tit. 24, 5604 (Supp. 1971).
Reimbursement for these services may be made only for courses
in mathematics, modern foreign languages, physical science, and
physical education. Reimbursement is prohibited for any course
containing subject matter "expressing religious teaching, or the
morals or forms of worship of any sect." 5603 (Supp. 1971). To
qualify, a school must demonstrate that its pupils achieve a
satisfactory level of performance in standardized tests approved
by the Superintendent of Public Instruction, and that the
textbooks and other instructional materials used in these courses
have been approved by the Superintendent of Public Instruction.
The three-judge District Court below upheld this statute against
the argument that it violates the Establishment Clause. We noted
probable jurisdiction. 397 U.S. 1034.
The DiCenso cases involve the Rhode Island Salary Supplement
Act, Laws 1969, c. 246. The Rhode Island Act authorizes
supplementing the salaries of teachers of secular subjects in
nonprofit private schools. The supplement is not more than 15%
of an eligible teacher's current salary, but cannot exceed the
maximum salary paid to teachers in the State's public schools. To
be eligible, a teacher must teach only those subjects offered in
public schools in the State, must be certified in substantially the
same manner as teachers in public schools, and may use only
teaching materials which are used in the public schools. Also the
teacher must agree in writing
Page 403 U. S. 627
"not to teach a course in religion for so long as or during such time
as he or she receives any salary supplements." R.I.Gen.Laws Ann.
16-51-3 (Supp. 1970). The schools themselves must not be
operated for profit, must meet state educational standards, and
the annual per-student expenditure for secular education must
not equal or exceed "the average annual per student expenditure
in the public schools in the state at the same grade level in the
second preceding fiscal year." 16-51-2 (Supp. 1970). While the
Rhode Island Act, unlike the Pennsylvania Act, provides for direct
payments to the teacher, the three-judge District Court below
found it unconstitutional because it "results in excessive
government entanglement with religion." Probable jurisdiction
was noted, and the cases were set for oral argument with the
other school cases. 400 U.S. 901.
In Walz v. Tax Commission, 397 U. S. 664, 397 U. S. 674, the Court
in approving a tax exemption for church property said:
"Determining that the legislative purpose of tax exemption is not
aimed at establishing, sponsoring, or supporting religion does not
end the inquiry, however. We must also be sure that the end
result -- the effect -- is not an excessive government entanglement
with religion."
There is, in my view, such an entanglement here. The surveillance
or supervision of the States needed to police grants involved in
these three cases, if performed, puts a public investigator into
every classroom and entails a pervasive monitoring of these
church agencies by the secular authorities. Yet if that surveillance
or supervision does not occur, the zeal of religious proselytizers
promises to carry the day and make a shambles of the
Establishment Clause. Moreover, when taxpayers of
Page 403 U. S. 628
many faiths are required to contribute money for the propagation
of one faith, the Free Exercise Clause is infringed.
The analysis of the constitutional objections to these two state
systems of grants to parochial or sectarian schools must start with
the admitted and obvious fact that the raison d'etre of parochial
schools is the propagation of a religious faith. They also teach
secular subjects, but they came into existence in this country
because Protestant groups were perverting the public schools by
using them to propagate their faith. The Catholics naturally
rebelled. If schools were to be used to propagate a particular
creed or religion, then Catholic ideals should also be served.
Hence, the advent of parochial schools.
 36
By 1840, there were 200 Catholic parish schools in the United
States. [Footnote 2/1] By 1964, there were 60 times as many.
[Footnote 2/2] Today, 57% of the 9,000 Catholic parishes in the
country have their church schools. "[E]very diocesan chancery has
its school department, and enjoys a primacy of status." [Footnote
2/3] The parish schools indeed consume 40% to 65% of the
parish's total income. [Footnote 2/4] The parish is so "school-
centered" that "[t]he school almost becomes the very reason for
being." [Footnote 2/5]
Early in the 19th century, the Protestants obtained control of the
New York school system and used it to promote reading and
teaching of the Scriptures as revealed in the King James version of
the Bible. [Footnote 2/6] The contests
Page 403 U. S. 629
between Protestants and Catholics, often erupting into violence
including the burning of Catholic churches, are a twice-told tale;
[Footnote 2/7] the Know-Nothing Party, which included in its
platform "daily Bible reading in the schools," [Footnote 2/8] carried
three States in 1854 -- Massachusetts, Pennsylvania, and
Delaware. [Footnote 2/9] Parochial schools grew, but not Catholic
schools alone. Other dissenting sects established their own
schools -- Lutherans, Methodists, Presbyterians, and others.
[Footnote 2/10] But the major force in shaping the pattern of
education in this country was the conflict between Protestants and
Catholics. The Catholics logically argued that a public school was
sectarian when it taught the King James version of the Bible. They
therefore wanted it removed from the public schools, and, in time,
they tried to get public funds for their own parochial schools.
[Footnote 2/11]
The constitutional right of dissenters to substitute their parochial
schools for public schools was sustained by the Court in Pierce v.
Society of Sisters, 268 U. S. 510.
The story of conflict and dissension is long and well known. The
result was a state of so-called equilibrium, where religious
instruction was eliminated from public schools and the use of
public funds to support religious schools was deemed to be
banned. [Footnote 2/12]
But the hydraulic pressures created by political forces and by
economic stress were great, and they began to
Page 403 U. S. 630
change the situation. Laws were passed -- state and federal -- that
dispensed public funds to sustain religious schools and the plea
was always in the educational frame of reference: education in all
sectors was needed, from languages to calculus to nuclear
physics. And it was forcefully argued that a linguist or
mathematician or physicist trained in religious schools was just as
competent as one trained in secular schools.
And so we have gradually edged into a situation where vast
amounts of public funds are supplied each year to sectarian
schools. [Footnote 2/13]
And the argument is made that the private parochial school
system takes about $9 billion a year off the back of government
[Footnote 2/14] -- as if that were enough to justify violating the
Establishment Clause.
While the evolution of the public school system in this country
marked an escape from denominational control, and was
therefore admirable as seen through the eyes of those who think
like Madison and Jefferson, it has disadvantages. The main one is
that a state system may attempt to mold all students alike
according to the views of the dominant group, and to discourage
the emergence of individual idiosyncrasies.
Sectarian education, however, does not remedy that condition.
The advantages of sectarian education relate solely to religious or
doctrinal matters. They give the
Page 403 U. S. 631
church the opportunity to indoctrinate its creed delicately and
indirectly, or massively through doctrinal courses.
Many nations follow that course: Moslem nations teach the Koran
in their schools; Sweden vests its elementary education in the
parish; Newfoundland puts its school system under three
superintendents -- one from the Church of England, one from the
Catholic church, one from the United Church. In Ireland, the public
schools are under denominational managership -- Catholic,
Episcopalian, Presbyterian, and Hebrew.
England puts sectarian schools under the umbrella of its school
system. It finances sectarian education; it exerts control by
prescribing standards; it requires some free scholarships; it
provides nondenominational membership on the board of
directors. [Footnote 2/15]
The British system is, in other words, one of surveillance over
sectarian schools. We too have surveillance over sectarian schools,
but only to the extent of making sure that minimum educational
standards are met, viz., competent teachers, accreditation of the
school for diplomas, the number of hours of work and credits
allowed, and so on.
But we have never faced, until recently, the problem of policing
sectarian schools. Any surveillance to date has been minor, and
has related only to the consistently unchallenged matters of
accreditation of the sectarian school in the State's school system.
[Footnote 2/16]
The Rhode Island Act allows a supplementary salary to a teacher in
a sectarian school if he or she "does not teach a course in
religion."
Page 403 U. S. 632
The Pennsylvania Act provides for state financing of instruction in
mathematics, modern foreign languages, physical science, and
physical education, provided that the instruction in those courses
"shall not include any subject matter expressing religious teaching,
or the morals or forms of worship of any sect."
Public financial support of parochial schools puts those schools
under disabilities with which they were not previously burdened.
For, as we held in Cooper v. Aaron, 358 U. S. 1, 358 U. S. 19,
governmental activities relating to schools "must be exercised
consistently with federal constitutional requirements." There we
were concerned with equal protection; here we are faced with
issues of Establishment of religion and its Free Exercise as those
concepts are used in the First Amendment.
 37
Where the governmental activity is the financing of the private
school, the various limitations or restraints imposed by the
Constitution on state governments come into play. Thus,
Arkansas, as part of its attempt to avoid the consequences
of Brown v. Board of Education, 347 U. S. 483, 347 U. S. 349 U.S.
294, withdrew its financial support from some public schools and
sent the funds instead to private schools. That state action was
held to violate the Equal Protection Clause. Aaron v. McKinley, 173
F.Supp. 944, 952. We affirmed, sub nom. Faubus v. Aaron, 361 U.
S. 197. Louisiana tried a like tactic, and it too was
invalidated. Poindexter v. Louisiana Financial Assistance
Commission, 296 F.Supp. 686. Again we affirmed. 393 U. S. 17.
Whatever might be the result in case of grants to students,
[Footnote 2/17] it is clear that, once
Page 403 U. S. 633
one of the States finances a private school, it is duty-bound to
make certain that the school stays within secular bounds and does
not use the public funds to promote sectarian causes.
The government may, of course, finance a hospital though it is run
by a religious order, provided it is open to people of all races and
creeds. Bradfield v. Roberts, 175 U. S. 291. The government itself
could enter the hospital business, and it would, of course, make
no difference if its agents who ran its hospitals were Catholics,
Methodists, agnostics, or whatnot. For the hospital is not indulging
in religious instruction or guidance or indoctrination. As Mr. Justice
Jackson said in Everson v. Board of Education, 330 U. S. 1, 330 U. S.
26 (dissenting):
"[Each State has] great latitude in deciding for itself, in the light of
its own conditions, what shall be public purposes in its scheme of
things. It may socialize utilities and economic enterprises and
make taxpayers' business out of what conventionally had been
private business. It may make public business of individual
welfare, health, education, entertainment or security. But it cannot
make public business of religious worship or instruction, or of
attendance at religious institutions of any character."
The reason is that given by Madison in his Remonstrance:
[Footnote 2/18]
"[T]he same authority which can force a citizen to contribute three
pence only of his property for
Page 403 U. S. 634
the support of any one establishment, may force him to conform
to any other establishment. . . ."
When Madison, in his Remonstrance, attacked a taxing measure to
support religious activities, he advanced a series of reasons for
opposing it. One that is extremely relevant here was phrased as
follows: [Footnote 2/19]
"[I]t will destroy that moderation and harmony which the
forbearance of our laws to intermeddle with Religion, has
produced amongst its several sects."
Intermeddling, to use Madison's word, or "entanglement," to use
what was said in Walz, has two aspects. The intrusion of
government into religious schools through grants, supervision, or
surveillance may result in establishment of religion in the
constitutional sense when what the State does enthrones a
particular sect for overt or subtle propagation of its faith. Those
activities of the State may also intrude on the Free Exercise Clause
by depriving a teacher, under threats of reprisals, of the right to
give sectarian construction or interpretation of, say, history and
literature, or to use the teaching of such subjects to inculcate a
religious creed or dogma.
Under these laws, there will be vast governmental suppression,
surveillance, or meddling in church affairs. As I indicated in Tilton
v. Richardson, post, p. 403 U. S. 689, decided this day, school
prayers, the daily routine of parochial schools, must go if our
decision in Engel v. Vitale, 370 U. S. 421, is honored. If it is not
honored, then the state has established a religious sect.
Elimination of prayers is only part of the problem. The curriculum
presents subtle and difficult problems. The constitutional mandate
can in part be carried out by censoring the curricula. What is
palpably a sectarian course can be marked for
Page 403 U. S. 635
deletion. But the problem only starts there. Sectarian instruction,
in which, of course, a State may not indulge, can take place in a
course on Shakespeare or in one on mathematics. No matter what
the curriculum offers, the question is, what is taught? We deal not
with evil teachers, but with zealous ones who may use any
opportunity to indoctrinate a class. [Footnote 2/20]
It is well known that everything taught in most parochial schools is
taught with the ultimate goal of religious education in mind. Rev.
Joseph H. Fichter, S.J., stated in Parochial School: A Sociological
Study 86 (1958):
"It is a commonplace observation that, in the parochial school,
religion permeates the whole curriculum, and is not confined to a
single half-hour period of the day. Even arithmetic can be used as
an instrument of pious thoughts, as in the case of the teacher who
gave this problem to her class:"
"If it takes forty thousand priests and a hundred and forty
thousand sisters to care for forty million Catholics in the United
States, how many more priests and sisters will be needed to
convert and care for the hundred million non-Catholics in the
United States?"
One can imagine what a religious zealot, as contrasted to a civil
libertarian, can do with the Reformation
Page 403 U. S. 636
or with the Inquisition. Much history can be given the gloss of a
particular religion. I would think that policing these grants to
detect sectarian instruction would be insufferable to religious
partisans, and would breed division and dissension between
church and state.
This problem looms large where the church controls the hiring
and firing of teachers:
"[I]n the public school, the selection of a faculty and the
administration of the school usually rests with a school board,
which is subject to election and recall by the voters, but in the
parochial school, the selection of a faculty and the administration
of the school is in the hands of the bishop alone, and usually is
 38
administered through the local priest. If a faculty member in the
public school believes that he has been treated unjustly in being
disciplined or dismissed, he can seek redress through the civil
court, and he is guaranteed a hearing. But if a faculty member in a
parochial school is disciplined or dismissed, he has no recourse
whatsoever. The word of the bishop or priest is final, even without
explanation if he so chooses. The tax payers have a voice in the
way their money is used in the public school, but the people who
support a parochial school have no voice at all in such affairs."
L. Boettner, Roman Catholicism 375 (1962).
Board of Education v. Allen, 392 U. S. 236, dealt only with
textbooks. Even so, some had difficulty giving approval. Yet books
can be easily examined independently of other aspects of the
teaching process. In the present cases, we deal with the totality of
instruction destined to be sectarian, at least in part, if the religious
character of the school is to be maintained. A school which
operates to commingle religion with other instruction plainly
cannot completely secularize its instruction.
Page 403 U. S. 637
Parochial schools, in large measure, do not accept the assumption
that secular subjects should be unrelated to religious teaching.
Lemon involves a state statute that prescribes that courses in
mathematics, modern foreign languages, physical science, and
physical education "shall not include any subject matter
expressing religious teaching, or the morals or forms of worship of
any sect." The subtleties involved in applying this standard are
obvious. It places the State astride a sectarian school and gives it
power to dictate what is or is not secular, what is or is not
religious. I can think of no more disrupting influence apt to
promote rancor and ill-will between church and state than this
kind of surveillance and control. They are the very opposite of the
"moderation and harmony" between church and state which
Madison thought was the aim and purpose of the Establishment
Clause.
The DiCenso cases have all the vices which are in Lemon, because
the supplementary salary payable to the teacher is conditioned on
his or her not teaching "a course in religion."
Moreover, the DiCenso cases reveal another, but related, knotty
problem presented when church and state launch one of these
educational programs. The Bishop of Rhode Island has a
Handbook of School Regulations for the Diocese of Providence.
[Footnote 2/21]
The school board supervises "the education, both spiritual and
secular, in the parochial schools and diocesan high schools."
The superintendent is an agent of the bishop, and he interprets
and makes "effective state and diocesan educational directives."
Page 403 U. S. 638
The pastors visit the schools and "give their assistance in
promoting spiritual and intellectual discipline."
Community supervisors "assist the teacher in the problems of
instruction," and these duties are:
"I. To become well enough acquainted with the teachers of their
communities so as to be able to advise the community superiors
on matters of placement and reassignment."
"II. To act as liaison between the provincialate and the religious
teacher in the school."
"III. To cooperate with the superintendent by studying the
diocesan school regulations and to encourage the teachers of
their community to observe these regulations."
"IV. To avoid giving any orders or directions to the teachers of their
community that may be in conflict with diocesan regulations or
policy regarding curriculum, testing, textbooks, method, or
administrative matters."
"V. To refer questions concerning school administration beyond
the scope of their own authority to the proper diocesan school
authorities, namely, the superintendent of schools or the pastor."
The length of the school day includes Mass:
"A full day session for Catholic schools at the elementary level
consists of five and one-half hours, exclusive of lunch and Mass,
[Footnote 2/22] but inclusive of recess for pupils in grades 1-3."
A course of study or syllabus prescribed for an elementary or
secondary school is "mandatory."
Page 403 U. S. 639
Religious instruction is provided as follows:
"A. Systematic religious instructions must be provided in all
schools of the diocese."
"B. Modern catechetics requires a teacher with unusual aptitudes,
specialized training, and such function of the spirit that his words
possess the force of a personal call. He should be so filled with his
subject that he can freely improvize in discussion, dramatization,
drawing, song, and prayer. A teacher so gifted and so permeated
by the message of the Gospel is rare. Perhaps no teacher in a
given school attains that ideal. But some teachers come nearer it
than others. If our pupils are to hear the Good News so that their
minds are enlightened and their hearts respond to the love of God
and His Christ, if they are to be formed into vital, twentieth-
century Christians, they should receive their religious instructions
only from the very best teachers."
"C. Inasmuch as the textbooks employed in religious instruction
above the fifth grade require a high degree of catechetical
preparation, religion should be a departmentalized subject in
grade six through twelve."
Religious activities are provided, through observance of specified
holy days and participation in Mass.
"Religious formation' is not restricted to courses, but is achieved
'through the example of the faculty, the tone of the school . . . and
religious activities."
No unauthorized priest may address the students.
 39

"Retreats and days of recollection form an integral part of our
religious program in the Catholic schools."
Religious factors are used in the selection of students:
"Although wealth should never serve as a criterion for accepting a
pupil into a Catholic school, all other
Page 403 U. S. 640
things being equal, it would seem fair to give preference to a child
whose parents support the parish. Regular use of the budget,
rather than the size of the contributions, would appear equitable.
It indicates whether parents regularly attend Mass."
pay the salaries of teachers in parochial schools; and the presence
of teachers is critical to the essential purpose of the parochial
school, viz., to advance the religious endeavors of the particular
church. It matters not that the teacher receiving taxpayers' money
only teaches religion a fraction of the time. Nor does it matter that
he or she teaches no religion. The school is an organism living on
one budget. What the taxpayers give for salaries of those who
teach only the humanities or science without any trace of
proselytizing enables the school to use all of its own funds for
religious training. As Judge Coffin said, 316 F.Supp. 112, 120, we
would be blind to realities if we let "sophisticated bookkeeping"
sanction "almost total subsidy of a religious institution by
assigning the bulk of the institution's expenses to secular'
activities." And sophisticated attempts to avoid the Constitution
are just as invalid as simple-minded ones. Lane v. Wilson, 307 U. S.
268, 307 U. S. 275.

These are only highlights of the handbook. But they indicate how
In my view, the taxpayers' forced contribution to the
pervasive is the religious control over the school, and how remote
this type of school is from the secular school. Public funds
supporting that structure are used to perpetuate a doctrine and Page 403 U. S. 642
creed in innumerable and in pervasive ways. Those who man
these schools are good people, zealous people, dedicated people. parochial schools in the present cases violates the First
But they are dedicated to ideas that the Framers of our Amendment.
Constitution placed beyond the reach of government.

MR. JUSTICE MARSHALL, who took no part in the consideration or

If the government closed its eyes to the manner in which these
grants are actually used, it would be allowing public funds to
promote sectarian education. If it did not close its eyes, but
undertook the surveillance needed, it would, I fear, intermeddle in
parochial affairs in a way that would breed only rancor and
dissension.
decision of No. 89, see ante, p. 403 U. S. 625, while intimating no
view as to the continuing vitality of Everson v. Board of
Education, 330 U. S. 1 (1947), concurs in MR. JUSTICE DOUGLAS'
opinion covering Nos. 569 and 570.
[Footnote 2/1]

We have announced over and over again that the use of

A. Stokes & L. Pfeffer, Church and State in the United States 229
taxpayers' money to support parochial schools violates the First
(1964).
Amendment, applicable to the States by virtue of the Fourteenth.

[Footnote 2/2]
We said in unequivocal words in Everson v. Board of
Education, 330 U. S. 1, 330 U. S. 16,
Ibid.
"No tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called, or [Footnote 2/3]
whatever form they may adopt to teach or practice religion."
Deedy, Should Catholic Schools Survive?, New Republic, Mar. 13,
We reiterated the same idea in Zorach v. Clauson, 343 U. S. 1971, pp. 15, 16.
306, 343 U. S. 314, and in McGowan v. Maryland, 366 U. S. 420,366
U. S. 443, and in Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 493.
[Footnote 2/4]
We repeated the same idea in McCollum v. Board of
Education, 333 U. S. 203, 333 U. S. 210, and added that a State's
Id. at 17.

Page 403 U. S. 641

[Footnote 2/5]

tax-supported public schools could not be used "for the

dissemination of religious doctrines," nor could a State provide the Ibid.
church "pupils for their religious classes through use of the State's
compulsory public school machinery." Id. at 333 U. S. 212. [Footnote 2/6]

Yet, in spite of this long and consistent history, there are those Stokes & Pfeffer, supra, n. 1, at 231.
who have the courage to announce that a State may nonetheless
finance the secular part of a sectarian school's educational
[Footnote 2/7]
program. That, however, makes a grave constitutional decision
turn merely on cost accounting and bookkeeping entries. A history
class, a literature class, or a science class in a parochial school is Id. at 231-239.
not a separate institute; it is part of the organic whole which the
State subsidizes. The funds are used in these cases to pay or help [Footnote 2/8]
 40
Id. at 237.
[Footnote 2/9]
Ibid.
[Footnote 2/10]
R. Butts, The American Tradition in Religion and Education 115
(1950).
[Footnote 2/11]
Id. at 118. And see R. Finney, A Brief History of the American Public
School 44-45 (1924).
[Footnote 2/12]
See E. Knight, Education in the United States 3, 314 (3d rev.
ed.1951); E. Cubberley, Public Education in the United States
164 et seq. (1919).
[Footnote 2/13]
In 1960, the Federal Government provided $500 million to private
colleges and universities. Amounts contributed by state and local
governments to private schools at any level were negligible. Just
one decade later, federal aid to private colleges and universities
had grown to $2.1 billion. State aid had begun and reached $100
million. Statistical Abstract of the United States 105 (1970). As the
present cases demonstrate, we are now reaching a point where
state aid is being given to private elementary and secondary
school as well as colleges and universities.
[Footnote 2/14]
Deedy, supra, n. 3, at 16.
[Footnote 2/15]
S. Curtis, History of Education in Great Britain 316-383 (5th
ed.1963); W. Alexander, Education in England, c. II (2d ed.1964).
[Footnote 2/16]
See Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534; Meyer
v. Nebraska, 262 U. S. 390, 262 U. S. 402.
[Footnote 2/17]
Grants to students in the context of the problems of desegregated
public schools have without exception been stricken down as tools
of the forbidden discrimination. See Griffin v. School Bd. of Prince
Edward County, 377 U. S. 218; Hall v. St. Helena Parish School
Bd., 197 F.Supp. 649, aff'd, 368 U. S. 515; Lee v. Macon County
Bd., 267 F.Supp. 458, aff'd sub nom. Wallace v. United States, 389
U. S. 215; Poindexter v. Louisiana Financial Assistance
Commission, 275 F. Supp. 833, aff'd, 389 U. S. 571; Brown v. South
Carolina State Bd., 296 F.Supp. 199, aff'd, 393 U. S. 222; Coffey v.
State Educ. Finance Commission, 296 F.Supp. 1389; Lee v. Macon
County Bd., 31 F.Supp. 743.
[Footnote 2/18]
Remonstrance 3. The Memorial and Remonstrance Against
Religious Assessments has been reproduced in appendices to the
opinion of Rutledge, J., in Everson, 330 U.S. at 330 U. S. 63, and to
that of DOUGLAS, J., in Walz, 397 U.S. at 397 U. S. 719.
[Footnote 2/19]
Remonstrance 11.
[Footnote 2/20]
"In the parochial schools, Roman Catholic indoctrination is
included in every subject. History, literature, geography, civics, and
science are given a Roman Catholic slant. The whole education of
the child is filled with propaganda. That, of course, is the very
purpose of such schools, the very reason for going to all of the
work and expense of maintaining a dual school system. Their
purpose is not so much to educate, but to indoctrinate and train,
not to teach Scripture truths and Americanism, but to make loyal
Roman Catholics. The children are regimented, and are told what
to wear, what to do, and what to think."
L. Boettner, Roman Catholicism 360 (1962).
[Footnote 2/21]
It was said on oral argument that the handbook shown as an
exhibit in the record had been superseded. The provisions
hereinafter quoted are from the handbook as it reads after all the
deletions to which we were referred.
[Footnote 2/22]
"The use of school time to participate in the Holy Sacrifice of the
Mass on the feasts of All Saints, Ascension, and the patronal saint
of the parish or school, as well as during the 40 Hours Devotion, is
proper and commendable."
MR. JUSTICE BRENNAN. *
I agree that the judgments in Nos. 569 and 570 must be affirmed.
In my view, the judgment in No. 89 must be reversed outright. I
dissent in No. 153 insofar as the plurality opinion and the opinion
of my Brother WHITE sustain the constitutionality, as applied to
sectarian institutions, of the Federal Higher Education Facilities Act
of 1963, as amended, 77 Stat. 363, 20 U.S.C. 711 et seq. (1964 ed.
and Supp. V). In my view, that Act is unconstitutional insofar as it
authorizes grants of federal tax monies to sectarian institutions,
but is unconstitutional only to that extent. I therefore think that
our remand of the case should be limited to the direction of a
hearing to determine whether the four institutional appellees here
are sectarian institutions.
I continue to adhere to the view that, to give concrete meaning to
the Establishment Clause,
"the line we must draw between the permissible and the
impermissible is one which accords with history and faithfully
reflects the understanding of the Founding Fathers. It is a line
which the Court has consistently sought to mark in its decisions
expounding the religious guarantees of the First
 41

Page 403 U. S. 643
Amendment. What the Framers meant to foreclose, and what our
decisions under the Establishment Clause have forbidden, are
those involvements of religious with secular institutions which (a)
serve the essentially religious activities of religious institutions; (b)
employ the organs of government for essentially religious
purposes; or (c) use essentially religious means to serve
governmental ends, where secular means would suffice. When the
secular and religious institutions become involved in such a
manner, there inhere in the relationship precisely those dangers --
as much to church as to state -- which the Framers feared would
subvert religious liberty and the strength of a system of secular
government."
Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 294-
295 (1963) (concurring opinion); Walz v. Tax Commission,397 U. S.
664, 397 U. S. 680-681 (1970) (concurring opinion).
these were the exceptions. Education in the Colonies was
overwhelmingly a private enterprise, usually carried on as a
denominational activity by the dominant Protestant sects. In point
of fact, government generally looked to the church to provide
education, and often contributed support through donations of
land and money. E. Cubberley, Public Education in the United
States 171 (1919).
Nor was there substantial change in the years immediately
following ratification of the Constitution and the Bill of Rights.
Schools continued to be local and, in the main, denominational
institutions. [Footnote 3/3] But the demand for public education
soon emerged. The evolution of the struggle in New York City is
illustrative. [Footnote 3/4] In 1786, the first New York State
Legislature ordered that one section in each township be set aside
for the "gospel and schools." With no public schools, various
private agencies and churches operated "charity schools" for the
poor of New

Page 403 U. S. 646

The common feature of all three statutes before us is the
provision of a direct subsidy from public funds for activities carried
on by sectarian educational institutions. We have sustained the York City and received money from the state common school
reimbursement of parents for bus fares of students under a fund. The forerunner of the city's public schools was organized in
scheme applicable to both public and nonpublic schools, Everson 1805 when DeWitt Clinton founded
v. Board of Education, 330 U. S. 1 (1947). We have also sustained
the loan of textbooks in secular subjects to students of both public
"The Society for Establishment of a Free School in the City of New
and nonpublic schools, Board of Education v. Allen, 392 U. S.
York for the Education of such poor Children as do not belong to
236 (1968). See also Bradfield v. Roberts, 175 U. S. 291 (1899).
or are not provided for by any Religious Society."

The statutory schemes before us, however, have features not

The State and city aided the society, and it built many schools.
present in either the Everson or Allen schemes. For example, the
Gradually, however, competition and bickering among the Free
reimbursement or the loan of books ended government
School Society and the various church schools developed over the
involvement in Everson and Allen. In contrast, each of the schemes
apportionment of state school funds. As a result, in 1825, the
here exacts a promise in some form that the subsidy will not be
legislature transferred to the city council the responsibility for
used to finance
distributing New York City's share of the state funds. The council
stopped funding religious societies which operated 16 sectarian
Page 403 U. S. 644 schools, but continued supporting schools connected with the
Protestant Orphan Asylum Society. Thereafter, in 1831, the
Catholic Orphan Asylum Society demanded and received public
courses in religious subjects -- promises that must be and are
funds to operate its schools, but a request of Methodists for funds
policed to assure compliance. Again, although the federal subsidy,
for the same purpose was denied. Nine years later, the Catholics
similar to the Everson and Allen subsidies, is available to both
enlarged their request for public monies to include all parochial
public and nonpublic colleges and universities, the Rhode Island
schools, contending that the council was subsidizing sectarian
and Pennsylvania subsidies are restricted to nonpublic schools,
books and instruction of the Public School Society, which Clinton's
and, for practical purposes, to Roman Catholic parochial schools.
Free School Society had become. The city's Scotch Presbyterian
[Footnote 3/1] These and other features I shall mention mean for
and Jewish communities immediately followed with requests for
me that Everson and Allen do not control these cases. Rather, the
funds to finance their schools. Although the Public School Society
history of public subsidy of sectarian schools, and the purposes
undertook to revise its texts to meet the objections, in 1842, the
and operation of these particular statutes, must be examined to
state legislature closed the bitter controversy by enacting a law
determine whether the statutes breach the Establishment
that established a City Board of Education to set up free public
Clause. Walz v. Tax Commission, supra, at 397 U. S.
schools, prohibited the distribution of public funds to sectarian
681 (concurring opinion).
schools, and prohibited the teaching of sectarian doctrine in any
public school.
Page 403 U. S. 645

The Nation's rapidly developing religious heterogeneity, the tide of

I Jacksonian democracy, and growing
In sharp contrast to the "undeviating acceptance given religious
tax exemptions from our earliest days as a Nation," ibid., subsidy Page 403 U. S. 647
of sectarian educational institutions became embroiled in bitter
controversies very soon after the Nation was formed. Public
urbanization soon led to widespread demands throughout the
education was, of course, virtually nonexistent when the
States for secular public education. At the same time, strong
Constitution was adopted. Colonial Massachusetts in 1647 had
opposition developed to use of the States' taxing powers to
directed towns to establish schools, Benjamin Franklin in 1749
support private sectarian schools. [Footnote 3/5] Although the
proposed a Philadelphia Academy, and Jefferson labored to
controversy over religious exercises in the public schools
establish a public school system in Virginia. [Footnote 3/2] But
continued into this century, Schempp, 374 U.S. at374 U. S. 268-277
 42
(BRENNAN, J., concurring), the opponents of subsidy to sectarian
schools had largely won their fight by 1900. In fact, after 1840, no
efforts of sectarian schools to obtain a share of public school
funds succeeded. Cubberley, supra, at 179. Between 1840 and
1875, 19 States added provisions to their constitutions prohibiting
the use of public school funds to aid sectarian schools, id. at 180,
and by 1900, 16 more States had added similar provisions. In fact,
no State admitted to the Union after 1858, except West Virginia,
omitted such provision from its first constitution. Ibid. Today,
fewer than a half-dozen States omit such provisions from their
constitutions. [Footnote 3/6]
Page 403 U. S. 648
And, in 1897, Congress included in its appropriation act for the
District of Columbia a statement declaring it
"to be the policy of the Government of the United States to make
no appropriation of money or property for the purpose of
founding, maintaining, or aiding by payment for services,
expenses, or otherwise, any church or religious denomination, or
any institution or society which is under sectarian or ecclesiastical
control."
29 Stat. 411.
Thus, for more than a century, the consensus, enforced by
legislatures and courts with substantial consistency, has been that
public subsidy of sectarian schools constitutes an impermissible
involvement of secular with
Page 403 U. S. 649
religious institutions. [Footnote 3/7] If this history is not itself
compelling against the validity of the three subsidy statutes, in the
sense we found in Walz that "undeviating acceptance" was highly
significant in favor of the validity of religious tax exemption, other
forms of governmental involvement that each of the three
statutes requires tip the scales, in my view, against the validity of
each of them. These are involvements that threaten
"danger as much to church as to state which the Framers feared
would subvert religious liberty and the strength of a system of
secular government."
Schempp, 374 U.S. at 374 U. S. 295 (BRENNAN, J., concurring).
"[G]overnment and religion have discrete interests which are
mutually best served when each avoids too close a proximity to
the other. It is not only the nonbeliever who fears the injection of
sectarian doctrines and controversies into the civil polity, but, in as
high degree, it is the devout believer who fears the secularization
of a creed which becomes too deeply involved with and
dependent upon the government."
Id. at 374 U. S. 259 (BRENNAN, J., concurring). All three of these
statutes require "too close a proximity" of government to the
subsidized sectarian institutions and, in my view, create real
dangers of "the secularization of a creed."
Page 403 U. S. 650
II
The Rhode Island statute requires Roman Catholic teachers to
surrender their right to teach religion courses and to promise not
to "inject" religious teaching into their secular courses. This has led
at least one teacher to stop praying with his classes, [Footnote 3/8]
a concrete testimonial to the self-censorship that inevitably
accompanies state regulation of delicate First Amendment
freedoms. Cf. Smith v. California, 361 U. S. 147 (1959); Speer v.
Randall, 357 U. S. 513, 357 U. S. 526 (1958). Both the Rhode Island
and Pennsylvania statutes prescribe extensive standardization of
the content of secular courses, and of the teaching materials and
textbooks to be used in teaching the courses. And the regulations
to implement those requirements necessarily require policing of
instruction in the schools. The picture of state inspectors prowling
the halls of parochial schools and auditing classroom instruction
surely raises more than an imagined specter of governmental
"secularization of a creed."
The same dangers attend the federal subsidy, even if less
obviously. The Federal Government exacts a promise that no
"sectarian instruction" or "religious worship" will take place in a
subsidized building. The Office of Education polices the promise.
[Footnote 3/9] In one instance, federal
Page 403 U. S. 651
officials demanded that a college cease teaching a course entitled
"The History of Methodism" in a federally assisted building,
although the Establishment Clause
"plainly does not foreclose teaching about the Holy Scriptures or
about the differences between religious sects in classes in
literature or history."
Schempp, 374 U.S. at 374 U. S. 300 (BRENNAN, J., concurring).
These examples illustrate the complete incompatibility of such
surveillance with the restraints barring interference with religious
freedom. [Footnote 3/10]
Policing the content of courses, the specific textbooks used, and
indeed the words of teachers is far different from the legitimate
policing carried on under state compulsory attendance laws or
laws regulating minimum levels of educational achievement.
Government's legitimate interest in ensuring certain minimum skill
levels and the acquisition of certain knowledge does not carry with
it power to prescribe what shall not be taught, or what methods of
instruction shall be used, or what opinions the teacher may offer
in the course of teaching.
Moreover, when a sectarian institution accepts state financial aid,
it becomes obligated, under the Equal Protection Clause of the
Fourteenth Amendment, not to discriminate in admissions policies
and faculty selection.
Page 403 U. S. 652
The District Court in the Rhode Island case pinpointed the
dilemma:
"Applying these standards to parochial schools might well restrict
their ability to discriminate in admissions policies and in the hiring
and firing of teachers. At some point, the school becomes 'public'
for more purposes than the Church could wish. At that point, the
Church may justifiably feel that its victory on the Establishment
Clause has meant abandonment of the Free Exercise Clause."
 43
316 F.Supp. at 121-122 (citations omitted).
III
In any event, I do not believe that elimination of these aspects of
"too close a proximity" would save these three statutes. I
expressed the view in Walz that "[g]eneral subsidies of religious
activities would, of course, constitute impermissible state
involvement with religion." 397 U.S. at 397 U. S. 690 (concurring
opinion). I do not think the subsidies under these statutes fall
outside "[g]eneral subsidies of religious activities" merely because
they are restricted to support of the teaching of secular subjects.
In Walz, the passive aspect of the benefits conferred by a tax
exemption, particularly since cessation of the exemptions might
easily lead to impermissible involvements and conflicts, led me to
conclude that exemptions were consistent with the First
Amendment values. However, I contrasted direct government
subsidies:
"Tax exemptions and general subsidies, however, are qualitatively
different. Though both provide economic assistance, they do so in
fundamentally different ways. A subsidy involves the direct
transfer of public monies to the subsidized enterprise, and uses
resources exacted from taxpayers as a whole. An exemption, on
the other hand, involves no such
Page 403 U. S. 653
transfer. It assists the exempted enterprise only passively, by
relieving a privately funded venture of the burden of paying taxes.
In other words, '[i]n the case of direct subsidy, the state forcibly
diverts the income of both believers and nonbelievers to
churches,' while,"
"[i]n the case of an exemption, the state merely refrains from
diverting to its own uses income independently generated by the
churches through voluntary contributions."
"Thus,"
"the symbolism of tax exemption is significant as a manifestation
that organized religion is not expected to support the state; by the
same token the state is not expected to support the church."
397 U.S. at 397 U. S. 690-691 (footnotes and citations omitted)
(concurring opinion).
Pennsylvania, Rhode Island, and the Federal Government argue
strenuously that the government monies in all these cases are not
"[g]eneral subsidies of religious activities," because they are paid
specifically and solely for the secular education that the sectarian
institutions provide. [Footnote 3/11]
Before turning to the decisions of this Court on which this
argument is based, it is important to recall again the history of
subsidies to sectarian schools. See 403 U. S.S. 654 I, supra. The
universality of state constitutional provisions forbidding such
grants, as well as the weight of judicial authority disapproving such
aid as a violation of our tradition of separation of church and
state, reflects a time-tested judgment that such grants do indeed
constitute impermissible aid to religion. See nn. 6
and 7, supra. The recurrent argument, consistently rejected in the
past, has been that government grants to sectarian schools ought
not be viewed as impermissible subsidies
"because [the schools] relieve the State of a burden, which it
would otherwise be itself required to bear. . . . they will render a
service to the state by performing for it its duty of educating the
children of the people."
Cook County v. Chicago Industrial School, 125 Ill. 540, 571, 18 N.E.
183, 197 (1888).
Nonetheless, it is argued once again in these cases that sectarian
schools and universities perform two separable functions. First,
they provide secular education, and second, they teach the tenets
of a particular sect. Since the State has determined that the
secular education provided in sectarian schools serves the
legitimate state interest in the education of its citizens, it is
contended that state aid solely to the secular education function
does not involve the State in aid to religion. Pierce v. Society of
Sisters, 268 U. S. 510 (1925), and Board of Education v. Allen,
supra, are relied on as support for the argument. Our opinion
in Allen recognized that sectarian schools provide both a secular
and a sectarian education:
"[T]his Court has long recognized that religious schools pursue two
goals, religious instruction and secular education. In the leading
case of Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court
held that . . . Oregon had not shown that its interest in secular
education required that all children attend publicly operated
schools. A premise of this
Page 403 U. S. 655
holding was the view that the State's interest in education would
be served sufficiently by reliance on the secular teaching that
accompanied religious training in the schools maintained by the
Society of Sisters."
"* * * *"
[T]he continued willingness to rely on private school systems,
including parochial systems, strongly suggests that a wide
segment of informed opinion, legislative and otherwise, has found
that those schools do an acceptable job of providing secular
education to their students. This judgment is further evidence that
parochial schools are performing, in addition to their sectarian
function, the task of secular education.
Board of Education v. Allen, 392 U.S. at 392 U. S. 245, 392 U. S.
247-248 (footnote omitted). But I do not read Pierce or Allen as
supporting the proposition that public subsidy of a sectarian
institution's secular training is permissible state involvement. I
read them as supporting the proposition that, as an identifiable
set of skills and an identifiable quantum of knowledge, secular
education may be effectively provided either in the religious
context of parochial schools or outside the context of religion in
public schools. The State's interest in secular education may be
defined broadly as an interest in ensuring that all children within
its boundaries acquire a minimum level of competency in certain
skills, such as reading, writing, and arithmetic, as well as a
minimum amount of information and knowledge in certain
subjects such as history, geography, science, literature, and law.
Without such skills and knowledge, an individual will be at a severe
disadvantage both in participating in democratic self-government
and in earning a living in a modern industrial economy. But the
State has no proper interest in prescribing the precise forum in
which such skills and knowledge are learned, since acquisition of
this
 44
Page 403 U. S. 656
secular education is neither incompatible with religious learning,
nor is it inconsistent with or inimical to religious precepts.
When the same secular educational process occurs in both public
and sectarian schools, Allen held that the State could provide
secular textbooks for use in that process to students in both
public and sectarian schools. Of course, the State could not
provide textbooks giving religious instruction. But since the
textbooks involved in Allen would, at least in theory, be limited to
secular education, no aid to sectarian instruction was involved.
More important, since the textbooks in Allen had been previously
provided by the parents, and not the schools, 392 U.S. at392 U. S.
244 n. 6, no aid to the institution was involved. Rather, as in the
case of the bus transportation in Everson, the general program of
providing all children in the State with free secular textbooks
assisted all parents in schooling their children. And as
in Everson, there was undoubtedly the possibility that some
parents might not have been able to exercise their constitutional
right to send their children to parochial school if the parents were
compelled themselves to pay for textbooks. However, as my
Brother BLACK wrote for the Court in Everson,
"[C]utting off church schools from these [general] services, so
separate and so indisputably marked off from the religious
function, would make it far more difficult for the schools to
operate. But such is obviously not the purpose of the First
Amendment. That Amendment requires the state to be a neutral
in its relations with groups of religious believers and non-
believers; it does not require the state to be their adversary. State
power is no more to be used so as to handicap religions than it is
to favor them."
330 U.S. at 330 U. S. 18.
Page 403 U. S. 657
Allen, in my view, simply sustained a statute in which the State was
"neutral in its relations with groups of religious believers and
nonbelievers." The only context in which the Court
in Allen employed the distinction between secular and religious in
a parochial school was to reach its conclusion that the textbooks
that the State was providing could and would be secular.
[Footnote 3/12] The present cases, however, involve direct
subsidies of tax monies to the schools themselves, and we cannot
blink the fact that the secular education those schools provide
goes hand in hand with the religious mission that is the only
reason for the schools' existence. Within the institution, the two
are inextricably intertwined.
The District Court in the DiCenso case found that all the varied
aspects of the parochial school's program -- the nature of its
faculty, its supervision, decor, program, extracurricular activities,
assemblies, courses, etc. -- produced an "intangible religious
atmosphere,'" since the "diocesan school system is an integral part
of the religious mission of the Catholic Church," and "a powerful
vehicle for transmitting the Catholic faith to the next generation."
316 F.Supp. at 117. Quality teaching in secular subjects is an
integral part of this religious enterprise. "Good secular teaching is
as essential to the religious mission of the parochial schools as a
roof for the school or desks for the classrooms." 316 F.Supp. at
117-118. That teaching cannot be separated from the environment
in which it occurs, for its integration with the religious mission is
both the theory and the strength of the religious school.
The common ingredient of the three prongs of the test
Page 403 U. S. 658
set forth at the outset of this opinion is whether the statutes
involve government in the "essentially religious activities" of
religious institutions. My analysis of the operation, purposes, and
effects of these statutes leads me inescapably to the conclusion
that they do impermissibly involve the States and the Federal
Government with the "essentially religious activities" of sectarian
educational institutions. More specifically, for the reasons stated, I
think each government uses "essentially religious means to serve
governmental ends, where secular means would suffice." This
Nation long ago committed itself to primary reliance upon publicly
supported public education to serve its important goals in secular
education. Our religious diversity gave strong impetus to that
commitment.
"[T]he American experiment in free public education available to
all children has been guided in large measure by the dramatic
evolution of the religious diversity among the population which
our public schools serve. . . . The public schools are supported
entirely, in most communities, by public funds -- funds exacted not
only from parents, nor alone from those who hold particular
religious views, nor indeed from those who subscribe to any creed
at all. It is implicit in the history and character of American public
education that the public schools serve a uniquely public function:
the training of American citizens in an atmosphere free of
parochial, divisive, or separatist influences of any sort -- an
atmosphere in which children may assimilate a heritage common
to all American groups and religions. This is a heritage neither
theistic nor atheistic, but simply civic and patriotic."
Schempp, 374 U.S. at 374 U. S. 241-242 (citation omitted)
(BRENNAN, J., concurring).
Page 403 U. S. 659
I conclude that, in using sectarian institutions to further goals in
secular education, the three statutes do violence to the principle
that
"government may not employ religious means to serve secular
interests, however legitimate they may be, at least without the
clearest demonstration that nonreligious means will not suffice."
Schempp, supra, at 374 U. S. 265 (BRENNAN, J., concurring).
IV
The plurality's treatment of the issues in Tilton, No. 153, diverges
so substantially from my own that I add these further comments. I
believe that the Establishment Clause forbids the Federal
Government to provide funds to sectarian universities in which the
propagation and advancement of a particular religion are a
function or purpose of the institution. Since the District Court
made no findings whether the four institutional appellees here are
sectarian, I would remand the case to the District Court with
directions to determine whether the institutional appellees are
"sectarian" institutions.
 45
I reach this conclusion for the reasons I have stated: the
necessarily deep involvement of government in the religious
activities of such an institution through the policing of restrictions,
and the fact that subsidies of tax monies directly to a sectarian
institution necessarily aid the proselytizing function of the
institution. The plurality argues that neither of these dangers is
present. [Footnote 3/13]
At the risk of repetition, I emphasize that a sectarian university is
the equivalent in the realm of higher education of the Catholic
elementary schools in Rhode Island; it is an educational institution
in which the propagation
Page 403 U. S. 660
and advancement of a particular religion are a primary function of
the institution. I do not believe that construction grants to such a
sectarian institution are permissible. The reason is not that
religion "permeates" the secular education that is provided.
Rather, it is that the secular education is provided within the
environment of religion; the institution is dedicated to two goals,
secular education and religious instruction. When aid flows
directly to the institution, both functions benefit. The plurality
would examine only the activities that occur within the federally
assisted building, and ignore the religious nature of the school of
which it is a part. The "religious enterprise" aided by the
construction grants involves the maintenance of an educational
environment -- which includes high-quality, purely secular
educational courses -- within which religious instruction occurs in
a variety of ways.
The plurality also argues that no impermissible entanglement
exists here. My Brother WHITE cogently comments upon that
argument:
"Why the federal program in the Tilton case is not embroiled in the
same difficulties [as the Rhode Island program] is never
adequately explained."
Post at 403 U. S. 668. I do not see any significant difference in the
Federal Government's telling the sectarian university not to teach
any nonsecular subjects in a certain building, and Rhode Island's
telling the Catholic school teacher not to teach religion. The vice is
the creation through subsidy of a relationship in which the
government polices the teaching practices of a religious school or
university. The plurality suggests that the facts that college
students are less impressionable and that college courses are less
susceptible to religious permeation may lessen the need for
federal policing. But the record shows that such policing has
occurred, and occurred in a heavy-handed way. Given the dangers
of self-censorship in such a situation, I cannot agree that the
dangers of
Page 403 U. S. 661
entanglement are insubstantial. Finally, the plurality suggests that
the "nonideological" nature of a building, as contrasted with a
teacher, reduces the need for policing. But the Federal
Government imposes restrictions on every class taught in the
federally assisted building. It is therefore not the "nonideological"
building that is policed; rather, it is the courses given there, and
the teachers who teach them. Thus, the policing is precisely the
same as under the state statutes, and that is what offends the
Constitution.
V
I therefore agree that the two state statutes that focus primarily
on providing public funds to sectarian schools are
unconstitutional. However, the federal statute in No. 153 is a
general program of construction grants to all colleges and
universities, including sectarian institutions. Since I believe the
statute's extension of eligibility to sectarian institutions is
severable for the broad general program authorized, I would hold
the Higher Education Facilities Act unconstitutional only insofar as
it authorized grants of federal tax monies to sectarian institutions
-- institutions that have a purpose or function to propagate or
advance a particular religion. Therefore, if the District Court
determines that any of the four institutional appellees here are
"sectarian," that court, in my view, should enjoin the other
appellees from making grants to it.
* This opinion also applies to No. 153, Tilton et al. v. Richardson,
Secretary of Health, Education, and Welfare, et al., post, p.403 U. S.
672.
[Footnote 3/1]
At the time of trial, 95% of the elementary school children in
private schools in Rhode Island attended Roman Catholic schools.
Only nonpublic school teachers could receive the subsidy, and
then only if they taught in schools in which the average per-pupil
expenditure on secular education did not equal or exceed the
average for the State's public schools. Some 250 of the 342 lay
teachers employed in Rhode Island Roman Catholic schools had
applied for and been declared eligible for the subsidy. To receive
it, the teacher must (1) have a state teaching certificate; (2) teach
exclusively secular subjects taught in the State's public schools; (3)
use only teaching materials approved for use in the public schools;
(4) not teach religion; and (5) promise in writing not to teach a
course in religion while receiving the salary supplement.
Unlike the Rhode Island case, the Pennsylvania case lacks a factual
record, since the complaint was dismissed on motion. We must
therefore decide the constitutional challenge as addressed to the
face of the Pennsylvania statute. Appellants allege that the
nonpublic schools are segregated in Pennsylvania by race and
religion, and that the Act perpetrates and promotes the
segregation of races "with the ultimate result of promoting two
school systems in Pennsylvania -- a public school system
predominantly black, poor and inferior and a private, subsidized
school system predominantly white, affluent and superior." Brief
for Appellants Lemon et al. 9. The District Court held that
appellants lacked standing to assert this equal protection claim. In
my view, this was plain error.
[Footnote 3/2]
E. Cubberley, Public Education in the United States 17
(1919); Abington School District v. Schempp, 374 U. S. 203, 374 U.
S. 238 n. 7 and authorities cited therein (BRENNAN, J., concurring).
[Footnote 3/3]
C. Antieau, A. Downey, E. Roberts, Freedom from Federal
Establishment 174 (1964).
[Footnote 3/4]
 46

B. Confrey, Secularism in American Education: Its History 127-129 [Footnote 3/8]

(1931).
"Already, the Act has restricted the role of teachers. The evidence
[Footnote 3/5] before us indicates that some otherwise qualified teachers have
stopped teaching courses in religion in order to qualify for aid
under the Act. One teacher, in fact, testified that he no longer
See generally R. Butts, The American Tradition in Religion and
prays with his class, lest he endanger his subsidy."
Education 111-145 (1950); 2 A. Stokes, Church and State in the
United States 47-72 (1950); Cubberley, supra, n. 2, at 155-181.
316 F.Supp. at 121.
[Footnote 3/6]
[Footnote 3/9]
See Ala.Const., Art. XIV, 263; Alaska Const., Art. VII, 1;
Ariz.Const., Art. II, 12, Art. XI, 7, 8; Ark.Const., Art. XIV, 2; The Office of Education stipulated as follows:
Calif.Const., Art. IX, 8; Colo.Const., Art. IX, 7; Conn.Const., Art.
VIII, 4; Del.Const., Art. X, 3; Fla.Const., Decl. of Rights, Art. I, 3;
"The Office of Education is now engaged in making a series of on-
Ga.Const., Art. VIII, 12, par. 1; Hawaii Const., Art. IX, 1; Idaho
site reviews of completed projects to verify that conditions under
Const., Art. IX, 5; Ill.Const., Art. VIII, 3; Ind.Const., Art. 8, 3;
which Federal assistance was provided are being implemented.
Kan.Const., Art. 6, 6(c); Ky.Const., 189; La.Const., Art. XII, 13;
During these visits, class schedules and course descriptions
Mass.Const., Amend. Art. XLVI, 2; Mich.Const., Art. I, 4;
contained in the school catalog are analyzed to ascertain that
Minn.Const., Art. VIII, 2; Miss.Const., Art. 8, 208; Mo.Const., Art.
nothing in the nature of sectarian instruction is scheduled in any
IX, 8; Mont.Const., Art. XI, 8; Neb.Const., Art. VII, 11;
area constructed with the use of Federal funds. If there is found to
Nev.Const., Art. 11, 10; N.H.Const., Pt. II, Art. 83; N.J.Const., Art.
be an indication that a portion of academic facilities constructed
VIII, 4, par. 2; N.Mex.Const., Art. XII, 3; N.Y.Const., Art. XI, 3;
with Federal assistance is used in any way for sectarian
N.Car.Const., Art. IX, 4, 12; N.Dak.Const., Art. VIII, 152; Ohio
purposes, either the questionable practice must be terminated or
Const., Art. VI, 2; Okla.Const., Art. II, 5; Ore.Const., Art. VIII, 2;
the institution must assume full responsibility for the cost of
Penn.Const., Art. 3, 15; R.I.Const., Art. XII, 4; S.C.Const., Art. XI,
constructing the area involved."
9; S. Dak.Const., Art. VIII, 16; Tenn.Const., Art. XI, 12; Tex.Const.,
Art. VII, 5; Utah Const., Art. X, 13; Va.Const., Art. IX, 141;
Wash.Const., Art. IX, 4; W.Va.Const., Art. XII, 4; Wis.Const., Art. I, App. in No. 153, p. 82 (emphasis added).
18, Art. X, 2; Wyo.Const., Art. 7, 8.
[Footnote 3/10]
The overwhelming majority of these constitutional provisions
either prohibit expenditures of public funds on sectarian schools The plurality opinion in No. 153 would strike down the 20-year
or prohibit the expenditure of public school funds for any purpose "period of Federal interest," 20 U.S.C. 754(a), upon the ground
other than support of public schools. For a discussion and that "[t]he restrictive obligations of a recipient institution under
categorization of the various constitutional formulations, see Note, 751(a)(2) cannot, compatibly with the Religion Clauses, expire
Catholic Schools and Public Money, 50 Yale L.J. 917 (1941). Many of while the building has substantial value." Post at 403 U. S. 683.
the constitutional provisions are collected in B. Confrey, Thus, the surveillance constituting the "too close a proximity"
Secularism in American Education: Its History 47-125 (1931). which for me offends the Establishment Clause continues for the
life of the building.
Many state constitutions explicitly apply the prohibition to aid to
sectarian colleges and universities. See, e.g., Colo.Const., Art. IX, [Footnote 3/11]
7; Idaho Const., Art. IX, 5; Ill.Const., Art. VIII, 3; Kan.Const., Art.
6, 6(c); Mass.Const., Amend. Art. XLVI, 2; Mo.Const., Art. IX, 8;
The Pennsylvania statute differs from Rhode Island's in providing
Mont.Const., Art. XI, 8; Neb.Const., Art. VII, 11; N.Mex.Const.,
the subsidy without regard to whether the sectarian school's
Art. XII, 3; S.C.Const., Art. XI, 9; Utah Const., Art. X, 13;
average per-pupil expenditure on secular education equals or
Wyo.Const., Art. 7, 8. At least one judicial decision construing the
exceeds the average of the State's public schools. Nor is there any
word "schools" held that the word does not include colleges and
limitation of the subsidy to nonpublic schools that are financially
universities, Opinion of the Justice, 214 Mass. 599, 102 N.E. 464
embarrassed. Thus, the statute, on its face, permits use of the
(1913), but that decision was overruled by constitutional
state subsidy for the purpose of maintaining or attracting an
amendment. Mass.Const., Amend. Art. XLVI, 2.
audience for religious education, and also permits sectarian
schools not needing the aid to apply it to exceed the quality of
[Footnote 3/7] secular education provided in public schools. These features of the
Pennsylvania scheme seem to me to invalidate it under the
See, e.g., Wright v. School Dist., 151 Kan. 485, 99 P.2d 737 Establishment Clause as granting preferences to sectarian schools.
(1940); Atchison, T. & S. F. R. Co. v. City of Atchison, 47 Kan. 712, 28
P. 1000 (1892); Williams v. Board of Trustees, 173 Ky. 708, 191 S.W. [Footnote 3/12]
507 (1917); Opinion of the Justices, 214 Mass. 599, 102 N.E. 464
(1913); Jenkins v. Andover, 103 Mass. 94 (1869); Otken v.
The three dissenters in Allen focused primarily on their
Lamkin, 56 Miss. 758 (1879); Harfst v. Hoegen, 349 Mo. 808, 163
disagreement with the Court that the textbooks provided would
S.W.2d 609 (1942); State ex rel. Public School Dist. v. Taylor, 122
be secular. See 392 U.S. at 392 U. S. 252-253 (BLACK, J.,
Neb. 454, 240 N.W. 573 (1932); State ex rel. Nevada Orphan
dissenting); id. at 392 U. S. 257 (DOUGLAS, J., dissenting); id. at 392
Asylum v. Hallock, 16 Nev. 373 (1882); Synod of Dakota v. State, 2
U. S. 270 (Fortas, J., dissenting).
S.D. 366, 50 N.W. 632 (1891).
 47

[Footnote 3/13] attending parochial and other private as well as public

Much of the plurality's argument is directed at establishing that
the specific institutional appellees here, as well as most church-
related colleges, are not sectarian in that they do not have a
purpose or function to advance or propagate a specific religion.
Those questions must await hearings and findings by the District
Court.
MR. JUSTICE WHITE, concurring in the judgments in No. 153
(post, p. 403 U. S. 672) and No. 90 and dissenting in Nos. 560 and
570.
schools, Board of Education v. Allen, 392 U. S. 236 (1968); we have
also upheld arrangements whereby students are released from
public school classes so that they may attend religious
instruction. Zorach v. Clauson, 343 U. S. 306 (1952). Outside the
field of education, we have upheld Sunday closing laws, McGowan
v. Maryland, 366 U. S. 420 (1961), state and federal laws exempting
church property and church activity from taxation, Walz v. Tax
Commission, 397 U. S. 664 (1970), and governmental grants to
religious organizations for the purpose of financing improvements
in the facilities of hospitals managed and controlled by religious
orders. Bradfield v. Roberts, 175 U. S. 291 (1899).

Our prior cases have recognized the dual role of parochial schools
It is our good fortune that the States of this country long ago in American society: they perform both religious and secular
recognized that instruction of the young and old ranks high on the functions. See Board of Education v. Allen, supra, at 392 U. S. 248.
scale of proper governmental functions, Our cases also recognize that legislation having a secular purpose
and extending governmental assistance to sectarian schools in the
Page 403 U. S. 662 performance of their secular functions does not constitute "law[s]
respecting an establishment of religion" forbidden by the First
Amendment merely because a secular program may incidentally
and not only undertook secular education as a public
benefit a church in fulfilling its religious mission.
responsibility, but also required compulsory attendance at school
by their young. Having recognized the value of educated citizens
and assumed the task of educating them, the States now before Page 403 U. S. 664
us assert a right to provide for the secular education of children
whether they attend public schools or choose to enter private That religion may indirectly benefit from governmental aid to the
institutions, even when those institutions are church-related. The secular activities of churches does not convert that aid into an
Federal Government also asserts that it is entitled, where impermissible establishment of religion.
requested, to contribute to the cost of secular education by
furnishing buildings and facilities to all institutions of higher
This much the Court squarely holds in the Tilton case, where it
learning, public and private alike. Both the United States and the
also expressly rejects the notion that payments made directly to a
States urge that, if parents choose to have their children receive
religious institution are, without more, forbidden by the First
instruction in the required secular subjects in a school where
Amendment. In Tilton, the Court decides that the Federal
religion is also taught and a religious atmosphere may prevail, part
Government may finance the separate function of secular
or all of the cost of such secular instruction may be paid for by
education carried on in a parochial setting. It reaches this result
governmental grants to the religious institution conducting the
although sectarian institutions undeniably will obtain substantial
school and seeking the grant. Those who challenge this position
benefit from federal aid; without federal funding to provide
would bar official contributions to secular education where the
adequate facilities for secular education, the student bodies of
family prefers the parochial to both the public and nonsectarian
those institutions might remain stationary, or even decrease in
private school.
size, and the institutions might ultimately have to close their
doors.
The issue is fairly joined. It is precisely the kind of issue the
Constitution contemplates this Court must ultimately decide. This
It is enough for me that the States and the Federal Government
is true although neither affirmance nor reversal of any of these
are financing a separable secular function of overriding
cases follows automatically from the spare language of the First
importance in order to sustain the legislation here challenged.
Amendment, from its history, or from the cases of this Court
That religion and private interests other than education may
construing it, and even though reasonable men can very easily
substantially benefit does not convert these laws into
and sensibly differ over the import of that language.
impermissible establishments of religion.

But, while the decision of the Court is legitimate, it is surely quite

wrong in overturning the Pennsylvania and Rhode Island statutes
on the ground that they amount to an establishment of religion
forbidden by the First Amendment.
Page 403 U. S. 663
No one in these cases questions the constitutional right of parents
to satisfy their state-imposed obligation to educate their children
by sending them to private schools, sectarian or otherwise, as long
as those schools meet minimum standards established for secular
instruction. The States are not only permitted, but required by the
Constitution, to free students attending private schools from any
public school attendance obligation. Pierce v. Society of
Sisters, 268 U. S. 510 (1925). The States may also furnish
transportation for students, Everson v. Board of Education, 330 U.
S. 1 (1947), and books for teaching secular subjects to students
It is unnecessary, therefore, to urge that the Free Exercise Clause
of the First Amendment at least permits government, in some
respects, to modify and mold its secular programs out of express
concern for free-exercise values. See Walz v. Tax Commission,
supra, at 397 U. S. 673 (tax exemption for religious properties;
"[t]he limits of permissible state accommodation to religion are by
no means coextensive with the noninterference mandated by the
Free Exercise Clause. To equate the two would be to deny a
national heritage with roots in the Revolution itself"); Sherbert v.
Verner, 374 U. S. 398 (1963) (exemption of Seventh Day Adventist
from eligibility requirements for
Page 403 U. S. 665
unemployment insurance not only permitted, but required, by the
Free Exercise Clause); Zorach v. Clauson, supra, at 343 U. S. 313-
 48
314 (students excused from regular public school routine to
obtain religious instruction; "[w]hen the state encourages religious
instruction . . . , it follows the best of our traditions. For it then
respects the religious nature of our people, and accommodates
the public service to their spiritual needs"). See also Abington
School District v. Schempp, 374 U. S. 203, 374 U. S. 308 (1963)
(STEWART, J., dissenting); Welsh v. United States, 398 U. S. 333, 398
U. S. 367 (1970) (WHITE, J., dissenting). The Establishment Clause,
however, coexists in the First Amendment with the Free Exercise
Clause, and the latter is surely relevant in cases such as these.
Where a state program seeks to ensure the proper education of its
young, in private as well as public schools, free exercise
considerations at least counsel against refusing support for
students attending parochial schools simply because, in that
setting, they are also being instructed in the tenets of the faith
they are constitutionally free to practice.
I would sustain both the federal and the Rhode Island programs at
issue in these cases, and I therefore concur in the judgment in No.
153 [Footnote 4/1] and dissent from the judgments in Nos. 569
and 570. Although I would also reject the facial challenge to the
Pennsylvania statute, I concur in the judgment in No. 89 for the
reasons given below.
The Court strikes down the Rhode Island statute on its face. No
fault is found with the secular purpose of the program; there is no
suggestion that the purpose of the program was aid to religion
disguised in secular attire. Nor does the Court find that the
primary effect of the program is to aid religion, rather than to
implement secular goals. The Court nevertheless finds
Page 403 U. S. 666
that impermissible "entanglement" will result from administration
of the program. The reasoning is a curious and mystifying blend,
but a critical factor appears to be an unwillingness to accept the
District Court's express findings that, on the evidence before it,
none of the teachers here involved mixed religious and secular
instruction. Rather, the District Court struck down the Rhode
Island statute because it concluded that activities outside the
secular classroom would probably have a religious content. and
that support for religious education therefore necessarily resulted
from the financial aid to the secular programs, since that aid
generally strengthened the parochial schools and increased the
number of their students. In view of the decision
in Tilton, however, where these same factors were found
insufficient to invalidate the federal plan, the Court is forced to
other considerations. Accepting the District Court's observation
in DiCenso that education is an integral part of the religious
mission of the Catholic church -- an observation that should
neither surprise nor alarm anyone, especially judges who have
already approved substantial aid to parochial schools in various
forms -- the majority then interposes findings and conclusions that
the District Court expressly abjured, namely, that nuns, clerics, and
dedicated Catholic laymen unavoidably pose a grave risk in that
they might not be able to put aside their religion in the secular
classroom. Although stopping short of considering them
untrustworthy, the Court concludes that, for them, the difficulties
of avoiding teaching religion along with secular subjects would
pose intolerable risks, and would, in any event, entail an
unacceptable enforcement regime. Thus, the potential for
impermissible fostering of religion in secular classrooms -- an
untested assumption of the Court -- paradoxically renders
unacceptable the State's efforts at insuring that secular teachers
under religious discipline successfully avoid conflicts between the
religious mission
Page 403 U. S. 667
of the school and the secular purpose of the State's education
program.
The difficulty with this is twofold. In the first place, it is contrary to
the evidence and the District Court's findings in DiCenso. The
Court points to nothing in this record indicating that any
participating teacher had inserted religion into his secular
teaching, or had had any difficulty in avoiding doing so. The
testimony of the teachers was quite the contrary. The District
Court expressly found that
"[t]his concern for religious values does not necessarily affect the
content of secular subjects in diocesan schools. On the contrary,
several teachers testified at trial that they did not inject religion
into their secular classes, and one teacher deposed that he taught
exactly as he had while employed in a public school. This
testimony gains added credibility from the fact that several of the
teachers were non-Catholics. Moreover, because of the
restrictions of Rhode Island's textbook loan law . . . and the explicit
requirement of the Salary Supplement Act, teaching materials
used by applicants for aid must be approved for use in the public
schools."
DiCenso v. Robinson, 316 F.Supp. 112, 117 (RI 1970). Elsewhere,
the District Court reiterated that the defect of the Rhode Island
statute was "not that religious doctrine overtly intrudes into all
instruction," ibid., but factors aside from secular courses, plus the
fact that good secular teaching was itself essential for
implementing the religious mission of the parochial school.
Secondly, the Court accepts the model for the Catholic elementary
and secondary schools that was rejected for the Catholic
universities or colleges in the Tilton case. There, it was urged that
the Catholic condition of higher learning was an integral part of
the religious mission of the church, and that these institutions did
everything they could to foster the faith. The Court's response was
that, on the record before it, none of
Page 403 U. S. 668
the involved institutions was shown to have complied with the
model, and that it would not purport to pass on cases not before
it. Here, however, the Court strikes down this Rhode Island statute
based primarily on its own model and its own suppositions and
unsupported views of what is likely to happen in Rhode Island
parochial school classrooms, although, on this record, there is no
indication that entanglement difficulties will accompany the salary
supplement program.
The Court thus creates an insoluble paradox for the State and the
parochial schools. The State cannot finance secular instruction if it
permits religion to be taught in the same classroom; but if it
exacts a promise that religion not be so taught -- a promise the
school and its teachers are quite willing and, on this record, able,
to give -- and enforces it, it is then entangled in the "no
entanglement" aspect of the Court's Establishment Clause
jurisprudence.
Why the federal program in the Tilton case is not embroiled in the
same difficulties is never adequately explained. Surely the notion
that college students are more mature and resistant to
indoctrination is a makeweight, for, in Tilton, there is careful note
of the federal condition on funding and the enforcement
 49
mechanism available. If religious teaching in federally financed
buildings was permitted, the powers of resistance of college
students would in no way save the federal scheme. Nor can I
imagine the basis for finding college clerics more reliable in
keeping promises than their counterparts in elementary and
secondary schools -- particularly those in the Rhode Island case,
since, within five years, the majority of teachers in Rhode Island
parochial schools will be lay persons, many of them non-Catholic.
Both the District Court and this Court in DiCenso have seized on
the Rhode Island formula for supplementing
Page 403 U. S. 669
teachers' salaries since it requires the State to verify the amount
of school money spent for secular, as distinguished from religious,
purposes. Only teachers in those schools having per-pupil
expenditures for secular subjects below the state average qualify
under the system, an aspect of the state scheme which is said to
provoke serious "entanglement." But this is also a slender reed on
which to strike down this law, for, as the District Court found, only
once since the inception of the program has it been necessary to
segregate expenditures in this manner.
The District Court also focused on the recurring nature of
payments by the State of Rhode Island; salaries must be
supplemented and money appropriated every year, and hence the
opportunity for controversy and friction over state aid to religious
schools will constantly remain before the State. The Court,
in DiCenso, adopts this theme, and makes much of the fact that,
under the federal scheme, the grant to a religious institution is a
one-time matter. But this argument is without real force. It is
apparent that federal interest in any grant will be a continuing
one, since the conditions attached to the grant must be enforced.
More important, the federal grant program is an ongoing one. The
same grant will not be repeated, but new ones to the same or
different schools will be made year after year. Thus, the same
potential for recurring political controversy accompanies the
federal program. Rhode Island may have the problem of
appropriating money each year to supplement the salaries of
teachers, but the United States must each year seek financing for
the new grants it desires to make and must supervise the ones
already on the record.
With respect to Pennsylvania, the Court, accepting as true the
factual allegations of the complaint, as it must for purposes of a
motion to dismiss, would reverse the dismissal of the complaint
and invalidate the legislation.
Page 403 U. S. 670
The critical allegations, as paraphrased by the Court, are that
"the church-related elementary and secondary schools are
controlled by religious organizations, have the purpose of
propagating and promoting a particular religious faith, and
conduct their operations to fulfill that purpose."
Ante at 403 U. S. 620. From these allegations, the Court concludes
that forbidden entanglements would follow from enforcing
compliance with the secular purpose for which the state money is
being paid.
I disagree. There is no specific allegation in the complaint that
sectarian teaching does or would invade secular classes supported
by state funds. That the schools are operated to promote a
particular religion is quite consistent with the view that secular
teaching devoid of religious instruction can successfully be
maintained, for good secular instruction is, as Judge Coffin wrote
for the District Court in the Rhode Island case, essential to the
success of the religious mission of the parochial school. I would no
more here than in the Rhode Island case substitute presumption
for proof that religion is or would be taught in state-financed
secular courses or assume that enforcement measures would be
so extensive as to border on a free exercise violation. We should
not forget that the Pennsylvania statute does not compel church
schools to accept state funds. I cannot hold that the First
Amendment forbids an agreement between the school and the
State that the state funds would be used only to teach secular
subjects.
I do agree, however, that the complaint should not have been
dismissed for failure to state a cause of action. Although it did not
specifically allege that the schools involved mixed religious
teaching with secular subjects, the complaint did allege that the
schools were operated to fulfill religious purposes. and one of the
legal theories stated in the complaint was that the Pennsylvania
Act "finances and participates in the blending of sectarian
Page 403 U. S. 671
and secular instruction." At trial under this complaint, evidence
showing such a blend in a course supported by state funds would
appear to be admissible and, if credited, would establish financing
of religious instruction by the State. Hence, I would reverse the
judgment of the District Court and remand the case for trial,
thereby holding the Pennsylvania legislation valid on its face but
leaving open the question of its validity as applied to the particular
facts of this case.
I find it very difficult to follow the distinction between the federal
and state programs in terms of their First Amendment
acceptability. My difficulty is not surprising, since there is frank
acknowledgment that "we can only dimly perceive the boundaries
of permissible government activity in this sensitive area of
constitutional adjudication," Tilton v. Richardson, post at 403 U. S.
678, and that "[j]udicial caveats against entanglement" are a
"blurred, indistinct and variable barrier." Ante at 403 U. S. 614. I
find it even more difficult, with these acknowledgments in mind, to
understand how the Court can accept the considered judgment of
Congress that its program is constitutional, and yet reject the
equally considered decisions of the Rhode Island and
Pennsylvania legislatures that their programs represent a
constitutionally acceptable accommodation between church and
state. [Footnote 4/2]
[Footnote 4/1]
I accept the Court's invalidation of the provision in the federal
legislation whereby the restriction on the use of buildings
constructed with federal funds terminates after 20 years.
[Footnote 4/2]
As a postscript, I should note that both the federal and state cases
are decided on specified Establishment Clause considerations,
without reaching the questions that would be presented if the
evidence in any of these cases showed that any of the involved
 50

schools restricted entry on racial or religious grounds or required

all students gaining admission to receive instruction in the tenets
of a particular faith. For myself, if such proof were made, the
legislation would, to that extent, be unconstitutional.