Q. No. 10 | Political Law | Bar 2023

Q. No. 10 | Political Law | Bar 2023 | Suggested Answer

“The Secretary of the Department of Education (DepEd) issued Department Order (DO) No. 35 providing guidelines for teaching good manners and right conduct in all primary educational institutions. As part of the materials to be used during the sessions, the handbook for instructors contains a chapter on “Values from Religious Traditions and Indigenous Cultures”. The DepEd will provide the handbooks, but educational institutions shall be free to adapt the contents of the handbook in accordance with their respective mission and vision. Attendance at the sessions shall be compulsory for all students. Concerned parents and teachers questioned DO No. 35 before the Supreme Court as being violative of the establishment clause and their primary right and duty to rear their children. Are the parents and teachers correct? Explain briefly[.]”

SUGGESTED ANSWER

Article II, Section 6 of the 1987 Constitution emphatically declares that the "separation of Church and State shall be inviolable." The Bill of Rights, specifically Article III, Section 5 of the Constitution, on the other hand, provides that: "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." The aforementioned provisions are known as the principal religion clauses of the Constitution, which essentially guarantee two things: first, the State cannot establish or favor a particular religion as embodied in the "Establishment Clause"; and second, the State cannot prohibit anyone from freely choosing his religion as embodied in the "Free Exercise Clause."

The Establishment Clause principally prohibits the State from sponsoring any religion, or favoring any religion as against other religions. It mandates a strict neutrality in affairs among religious groups. In the landmark United States case of Everson v. Board of Education, the United States Supreme Court, speaking through Justice Hugo Black, held that the Establishment Clause means at least this:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation' between Church and State.

In our own landmark case of Estrada v. Escritor, the High Court has however scholarly explained that the Establishment Clause has been interpreted using either of two standards. 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.

The Strict Separation believes that the Establishment Clause was meant to protect the state from the church, and the state's 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. 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. In short, there is total detachment between the church and the state, and neither should have anything to do with the other.

On the other hand, the tamer version of the strict separationist view, 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 nonbelievers." State power is no more to be used so as to handicap religious than it is to favor them. 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 right 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.

https://lawphil.net/judjuris/juri2003/aug2003/am_p_02_1651_2003.html

NOTE

RE: 𝗔𝗰𝗰𝗼𝗺𝗺𝗼𝗱𝗮𝘁𝗶𝗼𝗻, 𝗡𝗼𝘁 𝗘𝘀𝘁𝗮𝗯𝗹𝗶𝘀𝗵𝗺𝗲𝗻𝘁 𝗼𝗳 𝗥𝗲𝗹𝗶𝗴𝗶𝗼𝗻: 𝗣𝗼𝗹𝗶𝗰𝘆 𝗼𝗳 𝗕𝗲𝗻𝗲𝘃𝗼𝗹𝗲𝗻𝘁 𝗡𝗲𝘂𝘁𝗿𝗮𝗹𝗶𝘁𝘆

It is error to think that the mere invocation of religious freedom will stalemate the State and render it [impotent] in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society.

In order to give life to the constitutional right of freedom of religion, the State adopts a policy of [accommodation].

In Estrada v. Escritor, the Court adopted a policy of benevolent neutrality:

"With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances."

In this case, the Supreme Court ruled in favor of religious freedom by applying the doctrine of "Benevolent Neutrality". The court stated that when it regulates the conduct of religious exercise, it is merely "accommodation," which does not violate the separation of church and state.

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