Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

133778 March 14, 2000

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent. YNARES-SANTIAGO, J.: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues: (1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead; (2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and void ab initio; (3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their father's death. 1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage. 2 Hence, this petition for review with this Court grounded on a pure question of law. This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review. 4 The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. 5 A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of which renders the marriage void ab initio pursuant to Article 80(3) 7 in relation to Article 58. 8 The requirement and issuance of marriage license is the State's demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. 9 This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social institution." 10 Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State. 11 This is why the Family Code considers marriage as "a special contract of permanent union" 12 and case law considers it "not just an adventure but a lifetime commitment." 13 However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76, 14 referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant's name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. 15 To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other." 16 The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation

wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. 17 The Civil Code provides: Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. . . . Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. . . . This is reiterated in the Family Code thus: Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. . . . Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. . . . This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void, 18 subject only to the exception in cases of absence or where the prior marriage was

dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery. 19 The law sanctions monogamy. In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's marriage void after his death? Contrary to respondent judge's ruling, Article 47 of the Family Code 20 cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place21 and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, 23 and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the

contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. 24 "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." 25 "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. 26 But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage 27 and such absolute nullity can be based only on a final judgment to that effect. 28 For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity.1wphi1 For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage. WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED.1wphi1.nt SO ORDERED.

Davide, Jr., C.J., Puno and Kapunan, JJ., concur. Pardo, J., on official business abroad.

Footnotes The dispositive portion of the Order dated March 27, 1998 issued by Judge Ferdinand J. Marcos of Regional Trial Court (RTC) Branch 59, Toledo City, reads: "WHEREFORE, premises considered, defendant's motion to dismiss is hereby granted and this instant case is hereby ordered dismissed without costs." (p. 6; Rollo, p. 21). 2 Order, p. 4; Rollo, p. 19. 3 Minute Resolution dated July 13, 1998; Rollo, p. 39. 4 Minute Resolution dated October 7, 1998; Rollo, p. 50. 5 Tamano v. Ortiz, 291 SCRA 584 (1998). 6 Now Article 3, Family Code. Art. 53. No marriage shall be solemnized unless all the requisites are complied with: (1) Legal capacity of the contracting parties; their consent, freely given; (2) Authority of the person performing the marriage; and (3) A marriage license, except in a marriage of exceptional character. 7 Now Article 4, Family Code. Art. 80. The following marriages shall be void from the beginning: xxx xxx xxx (3) Those solemnized without a marriage license, save marriages of exceptional character. xxx xxx xxx 8 Art. 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title, but not those under article 75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides. 9 Perido v. Perido, 63 SCRA 97 (1975). 10 Sec. 12, Article II, 1987 Constitution; Hernandez v. CA, G.R. No. 126010, December 8, 1999; See alsoTuason v. CA, 256 SCRA 158 (1996). 11 Sec. 2, Article XV (The Family), 1987 Constitution. 12 Art. 1, Family Code provides: "Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal or family life. . . . 13 Santos v. CA, 58 SCAD 17 (1995); 310 Phil. 21, 41 (1995). 14 Now Article 34, Family Code. Art. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. 15 Report of the Code Commission, p. 80. 16 Rollo, p. 29. 17 Art. 63 and 64, Civil Code; Article 17 and 18, Family Code. 18 Art. 83, Civil Code provides "Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) the first marriage was annulled or dissolved; or (2) the first spouse had been absent for seven consecutive years. . . . Art. 41 of the Family Code reads: "A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years. . ." 19 Arts. 333 and 334, Revised Penal Code. 20 Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at anytime before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. 21 Suntay v. Cojuanco-Suntay, 300 SCRA 760 (1998); People v. Retirement Board, 272 III. App. 59 cited in I Tolentino, Civil Code, 1990 ed. p. 271. 22 In re Conza's Estate, 176 III. 192; Miller v. Miller, 175 Cal. 797, 167 Pac. 394 cited in I Tolentino, Civil Code, 1990 ed., p. 271. 23 Art. 148-149, Family Code; Article 144, Civil Code. 24 Odayat v. Amante, 77 SCRA 338 (1977); Weigel v. Sempio-Dy, 143 SCRA 499 (1986); People v. Mendoza, 95 Phil. 845 (1954); 50 O.G. (10) 4767 cited in People v. Aragon, 100 Phil. 1033 (1957); 53 O.G. 3749. 25 35 Am. Jur. 219-220. 26 18 RCL 446-7; 35 Am Jur. 221.
1

Apiag v. Cantero, 335 Phil. 511 (1997); 268 SCRA 47 (1997); Atienza v. Judge Brillantes, Jr., 60 SCAD 119; 312 Phil. 939 (1995). Domingo v. CA, 226 SCRA 572 (1993). 29 Art. 39, Family Code as amended by E.O. 209 and 227 s. 1987 and further amended by R.A. No. 8533 dated February 23, 1998.
27 28

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 175581 March 28, 2008

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. JOSE A. DAYOT, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179474 FELISA TECSON-DAYOT, Petitioner, vs. JOSE A. DAYOT, Respondent. DECISION CHICO-NAZARIO, J.: Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are Petitions for Review under Rule 45 of the Rules of Court filed by the Republic of the Philippines and Felisa Tecson-Dayot (Felisa), respectively, both challenging the Amended Decision1 of the Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which declared the marriage between Jose Dayot (Jose) and Felisa void ab initio. The records disclose that on 24 November 1986, Jose and Felisa were married at the Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza.2 In lieu of a marriage license, Jose and Felisa executed a sworn affidavit,3 also dated 24 November 1986, attesting that both of them had attained the age of maturity, and that being unmarried, they had lived together as husband and wife for at least five years. On 7 July 1993, Jose filed a Complaint4 for Annulment and/or Declaration of Nullity of Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He contended that his marriage with Felisa was a sham, as no marriage ceremony was celebrated between the parties; that he did not execute the sworn affidavit stating that he and Felisa had lived as husband and wife for at least five years; and that his consent to the marriage was secured through fraud. In his Complaint, Jose gave his version of the events which led to his filing of the same. According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came to live as a boarder in Felisas house, the latter being his landlady. Some three weeks later, Felisa requested him to accompany her to the Pasay City Hall, ostensibly so she could claim a package sent to her by her brother from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged

signal from Felisa, a man bearing three folded pieces of paper approached them. They were told that Jose needed to sign the papers so that the package could be released to Felisa. He initially refused to do so. However, Felisa cajoled him, and told him that his refusal could get both of them killed by her brother who had learned about their relationship. Reluctantly, he signed the pieces of paper, and gave them to the man who immediately left. It was in February 1987 when he discovered that he had contracted marriage with Felisa. He alleged that he saw a piece of paper lying on top of the table at the sala of Felisas house. When he perused the same, he discovered that it was a copy of his marriage contract with Felisa. When he confronted Felisa, the latter feigned ignorance. In opposing the Complaint, Felisa denied Joses allegations and defended the validity of their marriage. She declared that they had maintained their relationship as man and wife absent the legality of marriage in the early part of 1980, but that she had deferred contracting marriage with him on account of their age difference.5 In her pre-trial brief, Felisa expounded that while her marriage to Jose was subsisting, the latter contracted marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy against Jose. Subsequently, she filed an administrative complaint against Jose with the Office of the Ombudsman, since Jose and Rufina were both employees of the National Statistics and Coordinating Board.6 The Ombudsman found Jose administratively liable for disgraceful and immoral conduct, and meted out to him the penalty of suspension from service for one year without emolument.7 On 26 July 2000, the RTC rendered a Decision8 dismissing the Complaint. It disposed: WHEREFORE, after a careful evaluation and analysis of the evidence presented by both parties, this Court finds and so holds that the [C]omplaint does not deserve a favorable consideration. Accordingly, the above-entitled case is hereby ordered DISMISSED with costs against [Jose].9 The RTC ruled that from the testimonies and evidence presented, the marriage celebrated between Jose and Felisa on 24 November 1986 was valid. It dismissed Joses version of the story as implausible, and rationalized that: Any person in his right frame of mind would easily suspect any attempt to make him or her sign a blank sheet of paper. [Jose] could have already detected that something was amiss, unusual, as they were at Pasay City Hall to get a package for [Felisa] but it [was] he who was made to sign the pieces of paper for the release of the said package. Another indirect suggestion that could have put him on guard was the fact that, by his own admission, [Felisa] told him that her brother would kill them if he will not sign the papers. And yet it took him, more or less, three months to "discover" that the pieces of paper that he signed was [sic] purportedly the marriage contract. [Jose] does not seem to be that ignorant, as perceived by this Court, to be "taken in for a ride" by [Felisa.] [Joses] claim that he did not consent to the marriage was belied by the fact that he acknowledged Felisa Tecson as his wife when he wrote [Felisas] name in the duly notarized statement of assets and liabilities he filled up on May 12, 1988, one year after he discovered the marriage contract he is now claiming to be sham and false. [Jose], again, in his company I.D., wrote the name of [Felisa] as the person to be contacted in case of emergency. This Court does

not believe that the only reason why her name was written in his company I.D. was because he was residing there then. This is just but a lame excuse because if he really considers her not his lawfully wedded wife, he would have written instead the name of his sister. When [Joses] sister was put into the witness stand, under oath, she testified that she signed her name voluntarily as a witness to the marriage in the marriage certificate (T.S.N., page 25, November 29, 1996) and she further testified that the signature appearing over the name of Jose Dayot was the signature of his [sic] brother that he voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November 29, 1996), and when she was asked by the Honorable Court if indeed she believed that Felisa Tecson was really chosen by her brother she answered yes. The testimony of his sister all the more belied his claim that his consent was procured through fraud.10 Moreover, on the matter of fraud, the RTC ruled that Joses action had prescribed. It cited Article 8711 of the New Civil Code which requires that the action for annulment of marriage must be commenced by the injured party within four years after the discovery of the fraud. Thus: That granting even for the sake of argument that his consent was obtained by [Felisa] through fraud, trickery and machinations, he could have filed an annulment or declaration of nullity of marriage at the earliest possible opportunity, the time when he discovered the alleged sham and false marriage contract. [Jose] did not take any action to void the marriage at the earliest instance. x x x.12 Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals. In a Decision dated 11 August 2005, the Court of Appeals found the appeal to be without merit. The dispositive portion of the appellate courts Decision reads: WHEREFORE, the Decision appealed from is AFFIRMED.13 The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it was solemnized prior to the effectivity of the Family Code. The appellate court observed that the circumstances constituting fraud as a ground for annulment of marriage under Article 8614 of the Civil Code did not exist in the marriage between the parties. Further, it ruled that the action for annulment of marriage on the ground of fraud was filed beyond the prescriptive period provided by law. The Court of Appeals struck down Joses appeal in the following manner: Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving his consent to the marriage, the action for the annulment thereof had already prescribed. Article 87 (4) and (5) of the Civil Code provides that the action for annulment of marriage on the ground that the consent of a party was obtained by fraud, force or intimidation must be commenced by said party within four (4) years after the discovery of the fraud and within four (4) years from the time the force or intimidation ceased. Inasmuch as the fraud was allegedly discovered by Jose in February, 1987 then he had only until February, 1991 within which to file an action for annulment of marriage. However, it was only on July 7, 1993 that Jose filed the complaint for annulment of his marriage to Felisa.15

Likewise, the Court of Appeals did not accept Joses assertion that his marriage to Felisa was void ab initio for lack of a marriage license. It ruled that the marriage was solemnized under Article 7616 of the Civil Code as one of exceptional character, with the parties executing an affidavit of marriage between man and woman who have lived together as husband and wife for at least five years. The Court of Appeals concluded that the falsity in the affidavit to the effect that Jose and Felisa had lived together as husband and wife for the period required by Article 76 did not affect the validity of the marriage, seeing that the solemnizing officer was misled by the statements contained therein. In this manner, the Court of Appeals gave credence to the good-faith reliance of the solemnizing officer over the falsity of the affidavit. The appellate court further noted that on the dorsal side of said affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he took steps to ascertain the ages and other qualifications of the contracting parties and found no legal impediment to their marriage. Finally, the Court of Appeals dismissed Joses argument that neither he nor Felisa was a member of the sect to which Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article 5617 of the Civil Code did not require that either one of the contracting parties to the marriage must belong to the solemnizing officers church or religious sect. The prescription was established only in Article 718 of the Family Code which does not govern the parties marriage. Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration thereof.1avvphi1 His central opposition was that the requisites for the proper application of the exemption from a marriage license under Article 76 of the Civil Code were not fully attendant in the case at bar. In particular, Jose cited the legal condition that the man and the woman must have been living together as husband and wife for at least five years before the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed by him and Felisa was false. The Court of Appeals granted Joses Motion for Reconsideration and reversed itself. Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of which reads: WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and another one entered declaring the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio. Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City.19 In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Nial v. Bayadog,20 and reasoned that: In Nial v. Bayadog, where the contracting parties to a marriage solemnized without a marriage license on the basis of their affidavit that they had attained the age of majority, that being unmarried, they had lived together for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows: "x x x In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day

of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the exception to the requirement of a marriage license, it is, therefore, void ab initio because of the absence of a marriage license.21 Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court rendered a Resolution22 dated 10 May 2007, denying Felisas motion. Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Petition for Review before this Court in G.R. No. 175581, praying that the Court of Appeals Amended Decision dated 7 November 2006 be reversed and set aside for lack of merit, and that the marriage between Jose and Felisa be declared valid and subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474, similarly assailing the appellate courts Amended Decision. On 1 August 2007, this Court resolved to consolidate the two Petitions in the interest of uniformity of the Court rulings in similar cases brought before it for resolution.23 The Republic of the Philippines propounds the following arguments for the allowance of its Petition, to wit: I RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF HIS MARRIAGE TO FELISA. II RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT.

III RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.24 Correlative to the above, Felisa submits that the Court of Appeals misapplied Nial.25 She differentiates the case at bar from Nial by reasoning that one of the parties therein had an existing prior marriage, a circumstance which does not obtain in her cohabitation with Jose. Finally, Felisa adduces that Jose only sought the annulment of their marriage after a criminal case for bigamy and an administrative case had been filed against him in order to avoid liability. Felisa surmises that the declaration of nullity of their marriage would exonerate Jose from any liability. For our resolution is the validity of the marriage between Jose and Felisa. To reach a considered ruling on the issue, we shall jointly tackle the related arguments vented by petitioners Republic of the Philippines and Felisa. The Republic of the Philippines asserts that several circumstances give rise to the presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa echoes the claim that any doubt should be resolved in favor of the validity of the marriage by citing this Courts ruling in Hernandez v. Court of Appeals.26 To buttress its assertion, the Republic points to the affidavit executed by Jose and Felisa, dated 24 November 1986, attesting that they have lived together as husband and wife for at least five years, which they used in lieu of a marriage license. It is the Republics position that the falsity of the statements in the affidavit does not affect the validity of the marriage, as the essential and formal requisites were complied with; and the solemnizing officer was not required to investigate as to whether the said affidavit was legally obtained. The Republic opines that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by the fact that the parties incorporated a fabricated statement in their affidavit that they cohabited as husband and wife for at least five years. In addition, the Republic posits that the parties marriage contract states that their marriage was solemnized under Article 76 of the Civil Code. It also bears the signature of the parties and their witnesses, and must be considered a primary evidence of marriage. To further fortify its Petition, the Republic adduces the following documents: (1) Joses notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisas name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had lived together as husband and wife in said barangay; and (3) Joses company ID card, dated 2 May 1988, indicating Felisas name as his wife. The first assignment of error compels this Court to rule on the issue of the effect of a false affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in order. It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November 1986, prior to the effectivity of the Family Code. Accordingly, the Civil Code governs their union. Article 53 of the Civil Code spells out the essential requisites of marriage as a contract: ART. 53. No marriage shall be solemnized unless all these requisites are complied with:

(1) Legal capacity of the contracting parties; (2) Their consent, freely given; (3) Authority of the person performing the marriage; and (4) A marriage license, except in a marriage of exceptional character. (Emphasis ours.) Article 5827 makes explicit that no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides, save marriages of an exceptional character authorized by the Civil Code, but not those under Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a marriage performed without the corresponding marriage license is void, this being nothing more than the legitimate consequence flowing from the fact that the license is the essence of the marriage contract.30 This is in stark contrast to the old Marriage Law,31 whereby the absence of a marriage license did not make the marriage void. The rationale for the compulsory character of a marriage license under the Civil Code is that it is the authority granted by the State to the contracting parties, after the proper government official has inquired into their capacity to contract marriage.32 Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at the point of death during peace or war, (2) marriages in remote places, (2) consular marriages,33 (3) ratification of marital cohabitation, (4) religious ratification of a civil marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.34 The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil Code, which provides: ART. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. The reason for the law,35 as espoused by the Code Commission, is that the publicity attending a marriage license may discourage such persons who have lived in a state of cohabitation from legalizing their status.36 It is not contested herein that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they executed an affidavit declaring that "they have attained the age of maturity; that being unmarried, they have lived together as husband and wife for at least five years; and that because of this union, they desire to marry each other."37 One of the central issues in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license.

We answer in the affirmative. Marriages of exceptional character are, doubtless, the exceptions to the rule on the indispensability of the formal requisite of a marriage license. Under the rules of statutory construction, exceptions, as a general rule, should be strictly38 but reasonably construed.39 They extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception.40 Where a general rule is established by statute with exceptions, the court will not curtail the former or add to the latter by implication.41 For the exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman must have attained the age of majority, and that, being unmarried, they have lived together as husband and wife for at least five years. A strict but reasonable construction of Article 76 leaves us with no other expediency but to read the law as it is plainly written. The exception of a marriage license under Article 76 applies only to those who have lived together as husband and wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum period requirement of five years of cohabitation. No other reading of the law can be had, since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory requirement, but as one that partakes of a mandatory character. It is worthy to mention that Article 76 also prescribes that the contracting parties shall state the requisite facts42 in an affidavit before any person authorized by law to administer oaths; and that the official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started living together only in June 1986, or barely five months before the celebration of their marriage.43 The Court of Appeals also noted Felisas testimony that Jose was introduced to her by her neighbor, Teresita Perwel, sometime in February or March 1986 after the EDSA Revolution.44 The appellate court also cited Felisas own testimony that it was only in June 1986 when Jose commenced to live in her house.45 Moreover, it is noteworthy that the question as to whether they satisfied the minimum five-year requisite is factual in nature. A question of fact arises when there is a need to decide on the truth or falsehood of the alleged facts.46Under Rule 45, factual findings are ordinarily not subject to this Courts review.47 It is already well-settled that: The general rule is that the findings of facts of the Court of Appeals are binding on this Court. A recognized exception to this rule is when the Court of Appeals and the trial court, or in this case the administrative body, make contradictory findings. However, the exception does not apply in every instance that the Court of Appeals and the trial court or administrative body disagree. The factual findings of the Court of Appeals remain conclusive on this Court if such findings are supported by the record or based on substantial evidence.48

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to exempt them from the requirement of a marriage license, is beyond question. We cannot accept the insistence of the Republic that the falsity of the statements in the parties affidavit will not affect the validity of marriage, since all the essential and formal requisites were complied with. The argument deserves scant merit. Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as to be excepted from the requirement of a marriage license. Anent petitioners reliance on the presumption of marriage, this Court holds that the same finds no applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it is with reference to the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.49 Restated more explicitly, persons dwelling together in apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to the case, to be in fact married.50 The present case does not involve an apparent marriage to which the presumption still needs to be applied. There is no question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986, hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of Marriage, which spawned the instant consolidated Petitions. In the same vein, the declaration of the Civil Code51 that every intendment of law or fact leans towards the validity of marriage will not salvage the parties marriage, and extricate them from the effect of a violation of the law. The marriage of Jose and Felisa was entered into without the requisite marriage license or compliance with the stringent requirements of a marriage under exceptional circumstance. The solemnization of a marriage without prior license is a clear violation of the law and would lead or could be used, at least, for the perpetration of fraud against innocent and unwary parties, which was one of the evils that the law sought to prevent by making a prior license a prerequisite for a valid marriage.52 The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.53 To permit a false affidavit to take the place of a marriage license is to allow an abject circumvention of the law. If this Court is to protect the fabric of the institution of marriage, we must be wary of deceptive schemes that violate the legal measures set forth in our laws. Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one. Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisas cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

In its second assignment of error, the Republic puts forth the argument that based on equity, Jose should be denied relief because he perpetrated the fabrication, and cannot thereby profit from his wrongdoing. This is a misplaced invocation. It must be stated that equity finds no room for application where there is a law.54 There is a law on the ratification of marital cohabitation, which is set in precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are consistent that the declaration of nullity of the parties marriage is without prejudice to their criminal liability.55 The Republic further avers in its third assignment of error that Jose is deemed estopped from assailing the legality of his marriage for lack of a marriage license. It is claimed that Jose and Felisa had lived together from 1986 to 1990, notwithstanding Joses subsequent marriage to Rufina Pascual on 31 August 1990, and that it took Jose seven years before he sought the declaration of nullity; hence, estoppel had set in. This is erroneous. An action for nullity of marriage is imprescriptible.56 Jose and Felisas marriage was celebrated sans a marriage license. No other conclusion can be reached except that it is void ab initio. In this case, the right to impugn a void marriage does not prescribe, and may be raised any time. Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the absence of a marriage.57 It covers the years immediately preceding the day of the marriage, characterized by exclusivity - meaning no third party was involved at any time within the five years - and continuity that is unbroken.58 WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to their criminal liability, if any. No costs. SO ORDERED.

Footnotes Per Special Order No. 497, dated 14 March 2008, signed by Chief Justice Reynato S. Puno designating Associate Justice Dante O. Tinga to replace Associate Justice Consuelo Ynares-Santiago, who is on official leave under the Courts Wellness Program and assigning Associate Justice Alicia Austria-Martinez as Acting Chairperson. ** Justice Presbitero J. Velasco, Jr. was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 12 September 2007. 1 Penned by Associate Justice Marina L. Buzon with Associate Justices Mario L. Guaria III and Santiago Javier Ranada, concurring; rollo (G.R. No. 175581), pp. 65-70; rollo, (G.R. No. 179474), pp. 156-161. 2 Records, p. 170. 3 Id. 4 Id. at 1-8. 5 The marriage contract shows that at the time of the celebration of th e parties marriage, Jose was 27 years old, while Felisa was 37. 6 The Administrative complaint before the Administrative Adjudication Bureau of the Office of the Ombudsman was docketed as OMB-ADM-0-93-0466; Records, pp. 252-258. 7 Id. at 257. 8 Id. at 313-323. 9 Id. at 323.
*

Id. at 321-322. ART. 87. - The action for annulment of marriage must be commenced by the parties and within the periods as follows: (1) For causes mentioned in Number 1 of Article 85, by the party whose parent or guardian did not give his or her consent, within four years after attaining the age of twenty or eighteen years, as the case may be; or by the parent or guardian or person having legal charge, at any time before such party has arrived at the age of twenty or eighteen years; (2) For causes mentioned in Number 2 of Article 85, by the spouse who has been absent, during his or her lifetime; or by either spouse of the subsequent marriage during the lifetime of the other; (3) For causes mentioned in Number 3 of Article 85, by the sane spouse, who had no knowledge of the other's insanity; or by any relative or guardian of the party of unsound mind, at any time before the death of either party; (4) For causes mentioned in Number 4, by the injured party, within four years after the discovery of the fraud; (5) For causes mentioned in Number 5, by the injured party, within four years from the time the force or intimidation ceased; (6) For causes mentioned in Number 6, by the injured party, within eight years after the marriage. 12 Records, p. 322. 13 Rollo (G.R. No. 179474), p. 125. 14 ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Nondisclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. 15 Rollo (G.R. No. 179474), p. 122. 16 ART. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. 17 ART. 56. Marriage may be solemnized by: (1) The Chief Justice and Associate Justices of the Supreme Court; (2) The Presiding Justice and the Justices of the Court of Appeals; (3) Judges of the Courts of First Instance; (4) Mayors of cities and municipalities; (5) Municipal judges and justices of the peace; (6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or sect, duly registered, as provided in Article 92; and (7) Ship captains, airplane chiefs, military commanders, and consuls and vice-consuls in special cases provided in Articles 74 and 75. 18 ART. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. 19 CA rollo, p. 279. 20 384 Phil. 661 (2000). 21 CA rollo, pp. 278-279. 22 Rollo (G.R. No. 179474), pp. 173-174. 23 Rollo (G.R. No. 179474), p. 180. 24 Rollo (G.R. No. 175581), pp. 44-45. 25 Erroneously cited as Nio v. Bayadog; rollo (G.R. No. 179474), p. 18. 26 377 Phil. 919 (1999). 27 ART. 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title, but not those under Article 75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides. 28 ART. 75. Marriages between Filipino citizens abroad may be solemnized by consuls and vice-consuls of the Republic of the Philippines. The duties of the local civil registrar and of a judge or justice of the peace or mayor with regard to the celebration of marriage shall be performed by such consuls and vice-consuls. 29 ART. 80. The following marriages shall be void from the beginning: xxxx (3) Those solemnized without a marriage license, save marriages of exceptional character. 30 People v. De Lara, No. 12583-R, 14 February 1955, 51 O.G. 4079, 4082.
10 11

The Marriage Law, otherwise known as Act No. 3613, requires the following essential requisites: (1) legal capacity of the contracting parties; and (2) their mutual consent. 32 Report of the Code Commission, pp. 79-80; see also Ambrosio Padilla, Civil Code Annotated, 1956 Edition, Vol. I, p. 195. 33 Must be read with Article 58 of the Civil Code which provides: ART. 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title, but not those under Article 75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides. 34 Edgardo L. Paras, Civil Code of the Philippines Annotated (1984 Eleventh Ed.), pp. 302-310. 35 In Nial v. Bayadog (supra note 20 at 668-669), this Court articulated the spirit behind Article 76 of the Civil Code, thus: "However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76, referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement." 36 The Report of the Code Commission states that "No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years desire to marry each other. In such case, the publicity attending a marriage license may discourage such persons from legalizing their status," Report of the Code Commission, p. 80. 37 Records, p. 49. The affidavit was denominated by the parties as an "Affidavit on (sic) Marriage Between Man and Woman Who Haved (sic) Lived Together as Husband and Wife for at Least Five Years." 38 Benedicto v. Court of Appeals, 416 Phil. 722, 744 (2001). 39 Commissioner of Internal Revenue v. Court of Appeals, 363 Phil. 130, 137 (1999). 40 Id. 41 Id. citing Samson v. Court of Appeals, G.R. No. L-43182, 25 November 1986, 145 SCRA 654, 659. 42 The first part of Article 76 states, "No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other x x x." 43 Rollo (G.R. No. 175581), p. 38. 44 Rollo (G.R. No. 179474), p. 158, citing TSN (Civil Case No. B-4143), 15 April 1999. 45 Id. at 159. 46 First Dominion Resources Corporation v. Pearanda, G.R. No. 166616, 27 January 2006, 480 SCRA 504, 508. 47 Civil Service Commission v. Ledesma, G.R. No. 154521, 30 September 2005, 471 SCRA 589, 605. 48 Id. 49 Vda. de Jacob v. Court of Appeals, 371 Phil. 693, 708 (1999). 50 Id. 51 ART. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression. 52 People v. De Lara, supra note 30 at 4083. 53 Malcampo-Sin v. Sin, 407 Phil. 583, 588 (2001). 54 Salavarria v. Letran College, 357 Phil. 189, 196 (1998); Aparente, Sr. v. National Labor Relations Commission, 387 Phil. 96, 108 (2000). 55 Supra note 33 at 306. Alicia V. Sempio-Diy in A Handbook on the Family Code of the Philippines (1995 Ed., p. 38) wrote that "If the parties falsify their affidavit in order to have an instant marriage, although the truth is that they have not been cohabiting for five years, their marriage will be void for lack of a marriage license, and they will also be criminally liable." Article 76 of the Civil Code is now Article 34 of the Family Code, which reads: ART. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. 56 Nial v. Bayadog, supra note 20 at 134. 57 Id. at 130-131. 58 Id.
31

FIRST DIVISION

[A.M. No. MTJ-02-1390. April 11, 2002]

MERCEDITA MATA OCCIANO, respondent.

ARAES, petitioner, vs. JUDGE

SALVADOR

M.

DECISION PUNO, J.: Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of the Law via a sworn Letter-Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000, respondent judge solemnized her marriage to her late groom Dominador B. Orobia without the requisite marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdiction. They lived together as husband and wife on the strength of this marriage until her husband passed away. However, since the marriage was a nullity, petitioners right to inherit the vast properties left by Orobia was not recognized. She was likewise deprived of receiving the pensions of Orobia, a retired Commodore of the Philippine Navy. Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical misrepresentations which allegedly caused her so much hardships, embarrassment and sufferings. On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court Administrator Zenaida N. Elepao for appropriate action. On 8 June 2001, the Office of the Court Administrator required respondent judge to comment. In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan Arroyo on 15 February 2000 to solemnize the marriage of the parties on 17 February 2000. Having been assured that all the documents to the marriage were complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo informed him that Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan which is located almost 25 kilometers from his residence in Nabua. Arroyo then requested if respondent judge could solemnize the marriage in Nabua, to which request he acceded. Respondent judge further avers that before he started the ceremony, he carefully examined the documents submitted to him by petitioner. When he discovered that the parties did not possess the requisite marriage license, he refused to solemnize the marriage and suggested its resetting to another date. However, due to the earnest pleas of the parties, the influx of visitors, and the delivery of provisions for the occasion, he proceeded to solemnize the marriage out of human compassion. He also feared that if he reset the wedding, it might aggravate the physical

condition of Orobia who just suffered from a stroke. After the solemnization, he reiterated the necessity for the marriage license and admonished the parties that their failure to give it would render the marriage void. Petitioner and Orobia assured respondent judge that they would give the license to him in the afternoon of that same day. When they failed to comply, respondent judge followed it up with Arroyo but the latter only gave him the same reassurance that the marriage license would be delivered to his sala at the Municipal Trial Court of Balatan, Camarines Sur. Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite the absence of a marriage license. He attributes the hardships and embarrassment suffered by the petitioner as due to her own fault and negligence. On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office of the Court Administrator. She attested that respondent judge initially refused to solemnize her marriage due to the want of a duly issued marriage license and that it was because of her prodding and reassurances that he eventually solemnized the same. She confessed that she filed this administrative case out of rage. However, after reading the Comment filed by respondent judge, she realized her own shortcomings and is now bothered by her conscience. Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for Marriage License on 5 January 2000. It was stamped in this Application that the marriage license shall be issued on 17 January 2000. However, neither petitioner nor Orobia claimed it. It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of such marriage that allegedly took place on 17 February 2000. Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued another Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage Contract of the parties since it has no record of their marriage. On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with the Office of the Local Civil Registrar of Nabua, Camarines Sur for the issuance of her marriage license. Respondent judge wrote the Local Civil Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office, Grace T. Escobal, informed respondent judge that their office cannot issue the marriage license due to the failure of Orobia to submit the Death Certificate of his previous spouse. The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000, found the respondent judge guilty of solemnizing a marriage without a duly issued marriage license and for doing so outside his territorial jurisdiction. A fine of P5,000.00 was recommended to be imposed on respondent judge. We agree. Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the regional trial court judges and judges of inferior courts to solemnize marriages is confined to their territorial jurisdiction as defined by the Supreme Court. The case at bar is not without precedent. In Navarro vs. Domagtoy,[1] respondent judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos,

Surigao del Norte. However, he solemnized a wedding at his residence in the municipality of Dapa, Surigao del Norte which did not fall within the jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that: A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within the area or diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.[2] (Emphasis supplied.) In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing a marriage outside his jurisdiction constitutes gross ignorance of the law. We further held that: The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in the instant case. x x x While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons.[3] In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to administrative liability. His act may not amount to gross ignorance of the law for he allegedly solemnized the marriage out of human compassion but nonetheless, he cannot avoid liability for violating the law on marriage. Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage license. In People vs. Lara,[4] we held that a marriage which preceded the issuance of the marriage license is void, and that the subsequent issuance of such license cannot render valid or even add an iota of validity to the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge did not possess such authority when he solemnized the marriage of petitioner. In this respect, respondent judge acted in gross ignorance of the law. Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court has consistently held in a catena of cases that the withdrawal of the complaint does not necessarily have the legal effect of exonerating respondent from disciplinary action. Otherwise, the prompt and fair administration of justice, as well as the discipline of court personnel, would be undermined.[5]Disciplinary actions of this nature do not involve purely private or personal matters. They can not be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. We cannot be bound

by the unilateral act of a complainant in a matter which involves the Courts constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the trust character of a public office and impair the integrity and dignity of this Court as a disciplining authority.[6] WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a STERN WARNING that a repetition of the same or similar offense in the future will be dealt with more severely. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

[1] [2] [3] [4] [5] [6]

259 SCRA 129 (1996). Id., pp. 135-136. Id., p. 136. C.A. O.G. 4079. Farrales vs. Camarista, 327 SCRA 84 (2000). Sandoval vs. Manalo, 260 SCRA 611 (1996).

SECOND DIVISION

[A.M. No. MTJ-96-1088. July 19, 1996]

RODOLFO G. NAVARRO, complainant, DOMAGTOY, respondent. DECISION ROMERO, J.:

vs. JUDGE

HERNANDO

C.

The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency in office and ignorance of the law. First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife. Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte. In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's "lackey," is overly concerned with his actuations both as judge and as a private person. The same person had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on September 15, 1994, and Administrative Matter No. OCA-IPI-9516, "Antonio Adapon v. Judge Hernando C. Domagtoy," which is still pending. In relation to the charges against him, respondent judge seeks exculpation from his act of having solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost seven years.[1] With respect to the second charge, he maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in question.

The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered sufficient for a resolution of the case.[2] Since the countercharges of sinister motives and fraud on the part of complainant have not been sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's answer thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance. The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar.[3] The affidavit was not issued by the latter judge, as claimed by respondent judge, but merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after thirteen years of cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of for almost seven years, thereby giving rise to the presumption that she is already dead. In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do not agree. Article 41 of the Family Code expressly provides: "A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse." (Emphasis added.) There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions of law. In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest error on the part

of respondent judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The following marriage shall be void from the beginning: (4) Those bigamous x x x marriages not falling under Article 41." The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus: "Art. 7. (1) Marriage may be solemnized by:

Any incumbent member of the judiciary within the court's jurisdiction; xxx xxx xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect." Respondent judge points to Article 8 and its exceptions as the justifications for his having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom only in the following instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario.[4] More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent member of the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Noncompliance herewith will not invalidate the marriage. A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.[5]

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil law. Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law. The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in instant case.[6] It is not too much to expect them to know and apply the law intelligently.[7] Otherwise, the system of justice rests on a shaky foundation indeed, compounded by the errors committed by those not learned in the law. While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons. The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Pearanda. The Office of the Court Administrator recommends, in its Memorandum to the Court, a sixmonth suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely. Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law. IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. SO ORDERED. Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

[1] [2]

Rollo, pp. 7-8.

Uy v. Dizon-Capulong, A.M. No. RTJ-91-766, April 7, 1993; Montemayor v. Collado, A.M. No. 2519-MTJ, September 10, 1981; Ubongon v. Mayo, A.M. No. 1255-CTJ, August 6, 1980, 99 SCRA 30.
[3] [4] [5] [6]

Rollo, p. 12. Rollo, pp. 10-11. Article 4, Family Code.

Lim v. Domogas, A.M. No. RTJ-92-899, October 15, 1993, 227 SCRA 258, 263 citing Ubongan v. Mayo, 99 SCRA 30 and Ajeno v. Inserto, 71 SCRA 166.
[7]

Galan Realty Co. v. Arranz, A.M. No. MTJ-93-978, October 27, 1994, 237 SCRA 771.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-8014 March 14, 1955

PEDRO V. VILAR, petitioner-appellant, vs. GAUDENCIO V. PARAISO, respondent-appellant. Claro M. Recto and Jose Nava for petitioner-appellant. Josefina R. Phodaca and Naomi P. Salvador for respondent-appellant. BAUTISTA ANGELO, J.: In the general elections held on November 13, 1951, Pedro V. Vilar and Gaudencio V. Paraiso were among the candidates registered and voted for the office of mayor of Rizal, Nueva Ecija. after the canvass was made, Vilar obtained 1,467 votes while Paraiso garnered 1,509, and as a result the municipal board of canvassers proclaimed the latter as the mayor duly elected with a plurality of 41 votes. However, contending that Paraiso was ineligible to hold office as mayor because he was then a minister of the United Church of Christ in the Philippines and such was disqualified to be a candidate under section 2175 of the Revised Administrative Code, Vilar instituted the present quo warranto proceedings praying that Paraiso be declared ineligible to assume office and that his proclamation as mayor-elect be declared null and void. He also prayed that he be declared duly elected mayor of Rizal, Nueva Ecija, in lieu of respondent Paraiso. Respondent in his answer denied his ineligibility and claimed that he resigned as minister of the United Church of Christ in the Philippines on August 21, 1951, that his resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951, and that even if respondent was not eligible to the office, petitioner could not be declared elected to take his place. After due trial, the court found respondent to be ineligible for the office of mayor, being an ecclesiastic, and, consequently, it declared his proclamation as mayor null and void, but refrained from declaring petitioner as mayor-elect for lack of sufficient legal grounds to do so. from this election both parties have appealed, respondent from that portion finding him ineligible, and petitioner from that portion holding he cannot be declared elected as mayor for lack of sufficient legal grounds to do so. The case was originally taken to the Court of Appeals. However, as the latter court found that while petitioner raises in his brief only questions of law respondent raises both questions of law and fact, and both appeals are indivisible in that they pertain to only one case, that court resolved to certify it to this Court pursuant to the provisions of sections 17 and 31 of the

Judiciary Act of 1948, upon the theory that one of the appeals is exclusively cognizable by the Supreme Court. The only issue before us is whether respondent, being an ecclesiastic, is ineligible to hold office under section 2175 of the Revised Administrative Code, or whether he actually resigned as minister before the date of the elections, and his resignation duly accepted, as claimed, thereby removing his disability. As may be noted, this is a question of fact the determination of which much depends upon the credibility and weight of the evidence of both parties. The evidence for petitioner tends to show that respondent was ordained as minister of the Evangelical Church of the Philippines in 1944 and as such was given license to solemnize marriages by the Bureau of Public Libraries; that since 1944 up to 1950 he acted as minister in the town of Rizal, Nueva Ecija, continuously and without interruption and has been renewing his license to solemnize marriages as prescribed by the regulations of the Bureau of Public Libraries; that on April 19, 1950, respondent transferred to the United Church of Christ in the Philippines, having been assigned to work in the same place and chapel during the years 19441950; that on April 7, 1951, respondent applied for, and was issued, a license to solemnize marriages by the Bureau of Public Libraries as minister of the new church up to the end of April, 1952; that said license has never been cancelled, as neither the head of the united church nor respondent has requested for its cancellation; and that respondent has been publicly known as minister of the United Church of Christ, but he has not attached to his certificate of candidacy a copy of his alleged resignation as minister. The evidence for the respondent, on the other hand, tends to show that while he was formerly a minister of the United of Christ in the Philippines, he, however, filed his resignation as such minister on August 21, 1951, because of his desire to engage in politics; that said resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951; that respondent turned over his chapel and his office to the elder members of his religious order on August 21, 1951, and since then he considered himself separated from his order and in fact he has refrained ever since from conducting any religious services pertaining to that order. Which of these versions is correct? After careful examining the evidence of record, and after weighing its credibility and probative value, we have not found any reason for deviating from the finding of the trial court that respondent never ceased as minister of the order to which he belonged and that the resignation he claims to have filed months before the date of the elections is but a mere scheme to circumvent the prohibition of the law regarding ecclesiastics who desire to run for a municipal office. Indeed, if respondent really and sincerely intended to resign as minister of the religious organization to which he belonged for the purpose of launching his candidacy why did he not resign in due form and have the acceptance of his resignation registered with the Bureau of Public Libraries.1 The importance of resignation cannot be underestimated. The purpose of registration is two-fold: to inform the public not only of the authority of the minister to discharge religious functions, but equally to keep it informed of any change in his religious status. This information is necessary for the protection of the public. This is specially so with regard to the authority to solemnized marriages, the registration of which is made by the law

mandatory (Articles 92-96, new Civil Code). It is no argument to say that the duty to secure the cancellation of the requisite resignation devolves, not upon respondent, but upon the head of his organization or upon the official in charge of such registration, upon proper showing of the reason for such cancellation, because the law likewise imposes upon the interested party the duty of effecting such cancellation, who in the instant case is the respondent himself. This he failed to do. And what is more, he failed to attach to his certificate of candidacy, a copy of his alleged resignation as minister knowing full well that a minister is disqualified by law to run for a municipal office. It is true that respondent attempted to substantiate his claim by submitting as evidence certain documents purporting to show the alleged resignation and its acceptance by the cabinet of his church at a meeting held on August 27, 1951, but, considering said documents in the light of the shortcomings we have pointed out above, one cannot help but brand them as self-serving or as documents merely prepared to serve the political designs of respondent in an attempt to obviate his disqualification under the law. And this feeling appears strengthened if we examine the socalled minute book wherein, according to witness Jose Agpalo, are entered the minutes of all the meeting of the church, because upon an examination thereof one would at once get the impression that it was prepared haphazardly and not with such seriousness and solemnity that should characterize the religious activities of a well established religious order. As the trial court aptly remarked "All these lead the court to believe with the petitioner, that the supposed resignation and acceptance were made at a later date to cure the ineligibility of the respondent." We are therefore constrained to hold that respondent is disqualified to hold the office of mayor as found by the trial court. As to the question whether, respondent being ineligible, petitioner can be declared elected, having obtained second place in the elections, our answer is simple: this Court has already declared that this cannot be done in the absence of an express provision authorizing such declaration. Our law not only does not contain any such provision but apparently seems to prohibit it. This is what we said in at least two cases where we laid down a ruling which is decisive of the present case. . . . . In the first case when the person elected is ineligible, the court cannot declare that the candidate occupying the second place has been elected, even if he were eligible, since the law only authorizes a declaration of election in favor of the person who has obtained a plurality of votes, and has presented his certificate of candidacy. (Nuval vs. Guray, 52 Phil., 645.) Section 173 of Republic Act No. 180 known as the Revised Election Code, does not provide that if the contestee is declared ineligible the contestant will be proclaimed. Indeed it may be gathered that the law contemplates no such result, because it permits the filing of the contest by any registered candidate irrespective of whether the latter occupied the next highest place or the lowest in the election returns. (Llamoso vs. Ferrer, et al., 84 Phil., 489, 47 Off. Gaz., [No. 2] p. 727.) Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

Paras C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion and Reyes, J.B.L., JJ.,concur.

Footnotes
1Regulations

for the enforcement of the Marriage Law issued by the Director of Public Libraries and approved by the Secretary of Education on February 26, 1951, in connection with Article 95, new Civil Code.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendants-appellees. I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees. REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife and parentsin-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2 The facts, supported by the evidence of record, are the following: Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place. Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken

home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame. Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4"). On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal. In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2). On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958. But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and

asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court. The appellant ascribes, as errors of the trial court, the following: 1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the complaint;. 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;. 3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and. 4. In dismissing the complaint and in denying the relief sought by the plaintiff. That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages. The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied) The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following: SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who

solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution. It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1). For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579). From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333). The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case: As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied) Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore,

justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72) The appellant's first assignment of error is, therefore, sustained. However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132). There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the

liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen. In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees. With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only. Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country; (2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law; (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages; (4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. WHEREFORE, the decision under appeal is hereby modified as follows; (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao; (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees; (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees. Neither party to recover costs. Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes The latter was substituted by her heirs when she died during the pendency of the case in the trial court. The original complaint included the Roman Catholic Church as a defendant, sought to be enjoined from acting on a petition for the ecclesiastical annulment of the marriage between Pastor Tenchavez and Vicenta Escao; the case against the defendant Church was dismissed on a joint motion. 3 In the present Civil Code the contrary rule obtains (Art. 53). 4 She was naturalized as an American citizen only on 8 August 1958.
1 2

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4904 February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant, vs. ANGEL TAN, defendant-appellee. Domingo Franco, for appellant. Doroteo Karagdag, for appellee. WILLARD, J.: The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte. There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish and consists, first, of a petition directed to the justice of the peace, dated on the 25th of September, 1907, signed by the plaintiff and the defendant, in which they state that they have mutually agreed to enter into a contract of marriage before the justice of the peace, and ask that the justice solemnize the marriage. Following this is a document dated on the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and by Zacarias Esmero and Pacita Ballori. It states the presentation of the petition above mentioned; that the persons who signed it where actually present in the office of the justice on the same day named; that they ratified under oath the contents of the petition, and that they insisted in what they had there asked for. It also stated that being required to produce witnesses of the marriage, the presented Zacarias Esmero as a witness for the husband and Pacita Ballori as a witness for the wife. Following this is a certificate of marriage signed by the justice of the peace and the witnesses Zacarias Esmero and Pacita Ballori, dated the 25th day of September, 1907, in which it is stated that the plaintiff and the defendant were legally married by the justice of the peace in the presence of the witnesses on that day. The court below decided the case in favor of the defendant, holding that the parties were legally married on the day named. The evidence in support of that decision is: First. The document itself, which the plaintiff admits that she signed. Second. The evidence of the defendant, who testifies that he and said plaintiff appeared before the justice of the peace at the time named, together with the witness Zacarias Esmero and Pacita Ballori, and that they all signed the document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did sign the document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The evidence of Jose Santiago, the bailiff of the court of the justice of the peace, who testified that the plaintiff, the defendant, the two witnesses

above-named, and the justice of the peace were all present in the office of the justice of the peace at the time mentioned. The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of the peace and never was married to the defendant. She admits that she signed the document in question, but says that she signed it in her own home, without reading it, and at the request of the defendant, who told her that it was a paper authorizing him to ask the consent of her parents to the marriage. There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly considered, is not entitled to much weight. The plaintiff at the time was visiting, in the town of Palompon, her married brother and was there for about two weeks. The wife of her brother, Rosario Bayot, testified that the plaintiff never left the house except in her company. But she admitted on cross-examination that she herself went to school every morning and that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this witness loses its force when the testimony of Pacita Ballori is considered. She says that at the request of the defendant on the day named, about 5 o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she met the plaintiff and her mother; that she asked the mother of the plaintiff to allow the plaintiff to accompany her, the witness, to her own house for the purpose of examining some dress patterns; that the mother gave her consent and the two rights left the store, but instead of going to the house of the witness they went directly to the office of the justice of the peace where the ceremony took place; that after the ceremony had taken place, one came advising them that the mother was approaching, and that they thereupon hurriedly left the office of the justice and went to the house of Pacita Ballori, where the mother later found them. The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the ceremony was performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to overcome the positive testimony of the witnesses for the defendant. The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that during her first examination she was seized with an hysterical attack and practically collapsed at the trial. Her examination was adjourned to a future day and was completed in her house where she was sick in bed. It is claimed by counsel that her collapse was due to the fact that she recognized that she testified falsely in stating the office of the justice of the peace was at the time in the municipal building, when, in fact, it was in a private house. We do not think that the record justifies the claim of the appellant. The statement as to the location of the office of the justice of the peace was afterwards corrected by the witness and we are satisfied that she told the facts substantially as they occurred. There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when she said she did not appear before the justice of the peace. This evidence consists of eight letters, which the defendant claims were all written by the plaintiff. The plaintiff admits that she wrote letters numbered 2 and 9. The authenticity of the others was proven. No. 9 is as follows:

ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that we have been married civilly, I am sure that he will turn me out of the house. Do what you may deem convenient, as I don't know what to do. Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here. Yours, ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as follows: Sr. D. ANGEL, TAN. ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in law will not let me go there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is the best hour. Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the Chinese store, because I don't like to go without Pacita. The house must be one belonging to prudent people, and no one should know anything about it. Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the marriage before the justice of the peace. It is as follows: Sr. D. ANGEL, TAN. ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when you see that the tide is high because my brother will have to go to the boat for the purpose of loading lumber. Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the marriage at this time, because I don't like her to know to-day that we have been at the court-house, inasmuch as she told me this morning that she heard that we would go to the court, and that we must not cause her to be ashamed, and that if I insist on being married I must do it right. Tell her also that you have asked me to carry you. I send you herewith the letter of your brother, in order that you may do what he wishes.

Yours,

ROSAL.

Letter No. 8 was also evidently written after the marriage and is in part as follows: Sr. D. ANGEL TAN. ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the purpose of asking my father's permission for our marriage, and in case he fails to give it, then we shall do what we deem proper, and, if he does not wish us to marry without his permission, you must request his consent. Tell me who said that my sister in law knows that we are civilly married; my brother ill treatment is a matter of no importance, as every thing may be carried out, with patience. It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that the plaintiff was on the same boat. The plaintiff testified, however, that she had no communication with the defendant during the voyage. The plaintiff and the defendant never lived together as husband and wife, and upon her arrival in Ormoc, after consulting with her family, she went to Cebu and commenced this action, which was brought for the purpose of procuring the cancellation of the certificate of marriage and for damages. The evidence strongly preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the justice of the peace at the time named. It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses for the defendant testified to, did not constitute a legal marriage. General orders, No. 68, section 6, is as follows: No particular form from the ceremony of marriage is required, but the parties must declare in the presence of the person solemnizing the marriage, that they take each other as husband and wife. Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said nothing until after the document was signed and then addressing himself to the plaintiff and the defendant said, "You are married." The petition signed the plaintiff and defendant contained a positive statement that they had mutually agreed to be married and they asked the justice of the peace to solemnize the marriage. The document signed by the plaintiff, the defendant, and the justice of the peace, stated that they ratified under oath, before the justice, the contents of the petition and that witnesses of the marriage were produced. A mortgage took place as shown by the certificate of the justice of the peace, signed by both contracting parties, which certificates gives rise to the presumption that the officer authorized the marriage in due form, the parties before the justice of the peace declaring that they took each other as husband and wife, unless the contrary is proved, such presumption being corroborated in this case by the admission of the woman to the effect that she had contracted the marriage certified to in the document signed by her, which admission can only mean the parties mutually agreed to unite in marriage when they appeared and signed the said document which so states before the justice of the peace who authorized the same. It was proven that both the plaintiff and the defendant were able to read and write the Spanish language, and that they

knew the contents of the document which they signed; and under the circumstances in this particular case were satisfied, and so hold, that what took place before the justice of the peace on this occasion amounted to a legal marriage. The defendant's original answer was a general denial of the allegations contained in the complaint. Among these allegations was a statement that the parties had obtain previously the consent of the plaintiff's parents. The defendant was afterwards allowed to amend his answer so that it was a denial of the allegations of the complaint except that relating to the condition in regard to the consent of the parents. The plaintiff objected to the allowance of this amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it should be an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It will be seen that this second amendment destroyed completely the first amendment and the defendants lawyer stated that what he intended to allege in his first amendment, but by reason of the haste with which the first amendment was drawn he had unintentionally made it exactly the opposite of what he had intended to state. After argument the court allowed the second amendment. We are satisfied that in this allowance there was no abuse of discretion and we do not see how the plaintiff was in any way prejudiced. She proceeded with the trial of the case without asking for a continuance. The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance against the appellant. Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 145226 February 06, 2004

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.: This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment2 dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution3 of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration. The facts of this case, as found by the court a quo, are as follows: Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 19741978). After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other. In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind. On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago4 at the Virgen sa Barangay Parish, Tagbilaran City, Bohol. On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place. On October 19, 1993, appellant was charged with Bigamy in an Information5 filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.6 The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued. On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows: WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum. SO ORDERED.7 In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals,8 the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,9 which held that the court of a country in which neither of the spouses is domiciled and in which one or

both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu,10 everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof. Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700. Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initiosince no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory. On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows: WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto. SO ORDERED.11 In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by Article 34912 of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case. The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 1513 of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 1714 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction. Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. People,15 allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith. On September 25, 2000, the appellate court denied the motion for lack of merit.16 However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy.

The present petition raises the following issues for our resolution: A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE. B. WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR. C. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.17 To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy. For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,18 which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 4019 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.

Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,20 we laid down the elements of bigamy thus: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit: WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract. SO ORDERED.21 The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 322 and 423 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, "This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married."24 The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married "from the beginning." The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge.

The present case is analogous to, but must be distinguished from Mercado v. Tan.25 In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that: A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as "void."26 It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic. WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Footnotes Rollo, pp. 38-44. Penned by Associate Justice Eugenio S. Labitoria and concurred in by Associate Justices Marina L. Buzon and Edgardo P. Cruz. 2 Records, pp. 114-119. 3 Rollo, pp. 46-58. Per Associate Justice Edgardo P. Cruz, with Associate Justices Cancio C. Garcia and Marina L. Buzon, concurring and Eugenio S. Labitoria and Bernardo P. Abesamis, dissenting. 4 Her correct name is Maria Jececha Limbago (Italics for emphasis). See Exh. "B," the copy of their marriage contract. Records, p. 10. 5The accusatory portion of the charge sheet found in Records, p. 1, reads: "That, on or about the 4th day of October, 1992, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being previously united in lawful marriage with Lucia Barrete on August
1

23, 1990 and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with Maria Jececha Limbago to the damage and prejudice of Lucia Barrete in the amount to be proved during trial. "Acts committed contrary to the provisions of Article 349 of the Revised Penal Code." 6 Rollo, pp. 38-40. 7 Records, p. 119. 8 G.R. No. 104818, 17 September 1993, 226 SCRA 572. 9 42 Phil. 855, 863 (1918). 10 58 Phil. 817 (1933). 11 Rollo, p. 43. 12 ART. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. 13 Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. 14 Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 15 G.R. Nos. 89983-84, 6 March 1992, 207 SCRA 85. 16 Rollo, p. 51. 17 Id. at 20-21. 18 G.R. No. 138509, 31 July 2000, 336 SCRA 747, 752-753. 19 Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. 20 Supra. 21 CA Rollo, p. 38. 22 Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. 23 Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio,except as stated in Article 35 (2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. 24 Rollo, p. 54. 25 G.R. No. 137110, 1 August 2000, 337 SCRA 122. 26 Id. at 124.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32473 October 6, 1930

MELECIO MADRIDEJO, assisted by his guardian ad litem, Pedro Madridejo, plaintiffappellee, vs. GONZALO DE LEON, ET AL., defendants-appellants. L. D. Abaya and S. C. Pamatmat for appellants. Aurelio Palileo for appellee.

VILLA-REAL, J.: This is a rehearsing of the appeal taken by the defendants, Gonzalo de Leon et al. from the judgment of the Court of First Instance of Laguna holding as follows: Wherefore, the court finds that Melecio Madridejo is Domingo de Leon's next of kin, and hereby orders the defendants in case No. 5258 to restore and deliver the ownership and possession of the property described in the complaints filed in the aforesaid case, to Melecio Madridejo, without cost. So ordered. In support of their appeal the defendants assign the following alleged errors as committed by the trial court, to wit: 1. The lower court erred in holding that the marriage between Pedro Madridejo and Flaviana Perez is valid. 2. The lower court also erred in declaring that solely because of the subsequent marriage of his parents, the appellee Melecio Madridejo, a natural child, was legitimated. 3. The lower court lastly erred in not rendering judgment in favor of the defendants and appellants. The relevant facts necessary for the decision of all the questions of fact and of law raised herein are as follows: Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The wife and son survived Eulogio de Leon, who died in the year 1915. During her widowhood, Flaviana Perez lived with Pedro Madridejo, a bachelor. The registry of births of the municipality of Siniloan, Laguna, shows that on June 1, 1917, a child was born to Pedro Madridejo and

Flaviana Perez, which was named Melecio Madridejo, the necessary data being furnished by Pedro Madridejo (Exhibit B). On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of Flaviana Perez, no mention being made of the father (Exhibit 2). On July 8, 1920, Flaviana Perez, being at death's door, was married to Pedro Madridejo, a bachelor, 30 years of age, by the parish priest of Siniloan (Exhibit A). She died on the following day, July 9, 1920, leaving Domingo de Leon, her son by Eulogio de Leon, and the plaintiff-appellee Melecio Madridejo, as well as her alleged second husband, Pedro Madridejo. Domingo de Leon died on the 2nd of May, 1928. With regard to the first assignment of error, the mere fact that the parish priest of Siniloan, Laguna, who married Pedro Madridejo and Flaviana Perez, failed to send a copy of the marriage certificate to the municipal secretary does not invalidate the marriage in articulo mortis, it not appearing that the essential requisites required by law for its validity were lacking in the ceremony, and the forwarding of a copy of the marriage certificate is not one of said essential requisites. Touching the second assignment of error, there has been no attempt to deny that Melecio Madridejo, the plaintiff-appellee, is the natural son of the Pedro Madridejo and Flaviana Perez, The only question to be decided is whether the subsequent marriage of his parents legitimated him. Article 121 of the Civil Code provides: Art. 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof. According to this legal provision, in order that a subsequent marriage may be effective as a legitimation, the natural children born out of wedlock must have been acknowledged by the parents either before or after its celebration. The Civil Code has established two kinds of acknowledgment: voluntary and compulsary. Article 131 provides for the voluntary acknowledgment by the father or mother as follows: Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other public document. Article 135 provides for the compulsary acknowledgment by the father, thus: Art. 135. The father may be compelled to acknowledge his natural child in the following cases: 1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence. 2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself of that of his family.

3. In cases of rape, seduction, or abduction, the provisions of the Penal Code with regard to the acknowledgment of the issue, shall be observed. Article 136 providing for the compulsory acknowledgment by the mother, reads: Art. 136. The mother may be compelled to acknowlegde her natural child: 1. When the child is, with respect to the mother, included in any of the cases mentioned in the next preceding article. 2. When the fact of the birth and the identity of the child are fully proven. Let us see whether the plaintiff-appellee, Melecio Madridejo, has been acknowledged by his parents Pedro Madridejo and Flaviana Perez, under any of the provisions above quoted. To begin with the father, no document has been adduced to show that he has voluntarily acknowledged Melecio Madridejo as his son, except the registry certificate of birth, Exhibit B. This, of course, is not the record of birth mentioned in the law, for it lacks the requisites of article 48 of the Law of Civil Registry. It, no doubt, is a public instrument, but it has neither been executed nor signed by Pedro Madridejo, and contains no statement by which he acknowledges Melecio Madridejo to be his son. Although as Pedro Madridejo testified, he furnished the municipal secretary of Siniloan with necessary data for recording the birth of Melecio Madridejo, and although said official inscribed the data thus given in the civil registry of births, this is not sufficient to bring it under the legal provision regarding acknowledgment by a public document. As to the mother, it does not appear that Flaviana Perez supplied the data set forth in the civil registry of births, Exhibit B, or in the baptismal register, where of Exhibit 2 is a certificate, and which constitutes final proof only of the baptism, and not of the kinship or parentage of the person baptized (Adriano vs. De Jesus, 23 Phil., 350). Furthermore, church registers of baptism are no longer considered public documents (United States vs. Evangelista, 29 Phil., 215). Melecio Madridejo, then, was not voluntarily acknowledged by Pedro Madridejo or Flaviana Perez, either before or after their marriage. 1awph!l.net Did Pedro Madridejo acknowledge Melecio Madridejo as his son, by compulsion? The compulsory acknowledgment by the father established in article 135 of the Civil Code, and by the mother according to article 136, requires that the natural child take judicial action against the father or mother, or against the persons setting themselves up as the heirs of both, for the purpose of compelling them to acknowledge him as a natural son through a judgment of the court. In the instant action brought by Melecio Madridejo not only has he not demanded to be acknowledged as a natural child, which is the condition precedent to establishing his legitimation by the subsequent marriage and his right to the estate of his uterine brother, Domingo de Leon, but he has not even impleaded either his father Pedro Madridejo, or the

heirs of his mother, Flaviana Perez, in order that the court might have authority to make a valid and effective pronouncement of his being a natural child, and to compel them to acknowledge him as such. The plaintiff-appellee alleges that the second paragraph of the defendants' answer amounts to an admission that he is indeed Flaviana Perez's son, and relieves him of the burden of proving that his mother acknowledged him as a son before her marriage. Such an admission would have been affective if the present action had been brought for the purpose of compelling Flaviana Perez or her heirs to acknowledge the appellee as her son. In view of the foregoing, it is evident that Melecio Madridejo has not been acknowledged by Pedro Madridejo and Flaviana Perez, either voluntarily or by compulsion, before or after their marriage, and therefore said marriage did not legitimate him. Wherefore, the judgment is reversed, the complaint dismissed, and the defendants absolved with costs against the appellee without prejudice to any right he may have to establish or compel his acknowledgment as the natural son of Pedro Madridejo and Flaviana Perez. So ordered. Avancea, C.J., Street, Malcolm, Villamor, Ostrand and Romualdez, JJ., concur.

Separate Opinions

JOHNS, J., dissenting: I dissent and the judgment of the lower court should be affirmed.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-61873 October 3l, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIAS BORROMEO, defendant-appellant.

RELOVA, J.:+.wph!1 Appeal from the decision of the then Circuit Criminal Court, Fourteenth Judicial District, CebuBohol (now Regional Trial Court), finding accused Elias Borromeo guilty beyond reasonable doubt of the crime of parricide and sentencing him to suffer the penalty of reclusion perpetua, with the accessory penalties of the law; to indemnify the heirs of the deceased Susana Taborada-Borromeo, in the sum of P12,000.00, without subsidiary imprisonment in case of insolvency; and to pay the costs. Records show that at high noon of July 3, 1981, the four-year old niece of Elias and Susana Borromeo reported to Matilde Taborada, mother of Susana, that Susana was shouting frantically for help because Elias was killing her. The 71-year old Matilde Taborada told the child to go to Geronimo Taborada, her son, who was then working in their mango plantation. Upon hearing the report of the child, Geronimo informed his father and together they went to Susana's hut. The windows and the door were closed and Geronimo could only peep through the bamboo slats at the wall where he saw Susana lying down, motionless, apparently dead beside her onemonth old child who was crying. Elias Borromeo was lying near Susana still holding on to a bloody kitchen bolo. Susana's father called for the Mabolo police and, after a few minutes, police officer Fernando C. Abella and three policemen arrived. The peace officers shouted and ordered Elias to open the door. Elias answered calmly that he would smoke first before he would open the door. When he did, the peace officers found Susana already dead, her intestine having spilled out of her abdomen. A small kitchen bolo was at her side. When questioned, the accused Elias Borromeo could only mumble incoherent words. Dr. Jesus Serna, police medico-legal officer, submitted his necropsy report (Exhibits "A" & "B") which states that the cause of death was "stab wounds, multiple chest, abdomen, left supraclavicular region and left shoulder." There were five (5) incised wounds and six (6) stab wounds on the deceased.

In his brief, accused-appellant contends that the trial court erred (1) in holding as it did that appellant and Susana Taborada (the deceased) were legally and validly married in a church wedding ceremony, when the officiating priest testified otherwise and there was no marriage contract executed on the occasion or later on; hence, the accused could only be liable for homicide; (2) in failing to appreciate in favor of appellant the mitigating circumstances of provocation or obfuscation and voluntary surrender, without any aggravating circumstance to offset the same; and, (3) in convicting appellant of the crime of parricide and in imposing upon him the penultimate penalty of reclusion perpetua. Appellant in his brief, page 9, concurs with "the trial court's finding to the effect that he killed Susana Taborada (the deceased) without legal justification" The main issue raised by him is that he and Susana were not legally married and therefore the crime committed is not parricide, but homicide. Other than the stand of appellant's counsel against the existence of marriage in order to lessen or mitigate the penalty imposable upon his client, accused Elias Borromeo himself admitted that the deceased-victim was his legitimate wife. Hereunder is his testimony on this point: t.hqw Q Please state your name, age and other personal circumstances? A ELIAS BORROMEO, 40 years old, married, farmer, resident of Putingbato, Babag Cebu City. The COURT: t.hqw Q You say you are married, who is your wife? A Susana Taborada. Q When did you get married with Susana Taborada? A I forgot. Q Where did you get married? A Near the RCPI station in Babag. Q There is a church there? A There is a chapel. Q Were you married by a priest or a minister? A By a priest.

Q Who is this priest? A Father Binghay of Guadalupe. Q Do you have any children with Susana Taborada? A We have one. Q How old is the child? A I already forgot, I have been here for quite a long time already. (pp. 4-5, tsn., December 12, 1981 hearing) There is no better proof of marriage than the admission of the accused of the existence of such marriage. (Tolentino vs. Paras, 122 SCRA 525). Person living together in apparent matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in constant violation of decency and law. (Son Cui vs. Guepangco, 22 Phil. 216) The presumption in favor of matrimony is one of the strongest known in law. The law presumes morality, and not immorality; marriage, and not concubinage: legitimacy, and not bastardy. There is the presumption that persons living together as husband and wife are married to each other. The reason for this presumption of marriage is well stated in Perido vs. Perido, 63 SCRA 97, thus: t.hqw The basis of human society throughout the civilized world is that of marriage. Marriage is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legal matrimony. ... And, the mere fact that no record of the marriage exists in the registry of marriage does not invalidate said marriage, as long as in the celebration thereof, all requisites for its validity are present. The forwarding of a copy of the marriage certificate to the registry is not one of said requisites. (Pugeda vs. Trias, 4 SCRA 849). Anent the second and third assigned errors, suffice it to say that the penalty for parricide is reclusion perpetua to death. (Article 246, Revised Penal Code) Paragraph 3, Article 63 of the Revised Penal Code, provides that where the law prescribed a penalty composed of two indivisible penalties and the commission of the act is attended by some mitigating circumstances, with no aggravating circumstance, the lesser penalty shall be applied. Thus, assuming the presence of the mitigating circumstances of provocation or obfuscation and voluntary surrender, without any aggravating circumstance to offset the same, the penalty is still reclusion perpetua.

WHEREFORE, the appealed decision is hereby AFFIRMED, with the modification that the indemnity of P12,000.00 is increased to P30,000.00. With costs. SO ORDERED.1wph1.t Teehankee (Chairman), Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 189998 August 29, 2012

MAKATI SHANGRI-LA HOTEL AND RESORT, INC., Petitioner, vs. ELLEN JOHANNE HARPER, JONATHAN CHRISTOPHER HARPER, and RIGOBERTO GILLERA, Respondents. DECISION BERSAMIN, J.: The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom strangers murder inside his hotel room. The Case Petitioner, the owner and operator of the 5-star Shangri-La Hotel in Makati City (Shangri-La Hotel), appeals the decision promulgated on October 21, 2009,1 whereby the Court of Appeals (CA) affirmed with modification the judgment rendered on October 25, 2005 by the Regional Trial Court (RTC) in Quezon City holding petitioner liable for damages for the murder of Christian Fredrik Harper, a Norwegian national.2 Respondents Ellen Johanne Harper and Jonathan Christopher Harper are the widow and son of Christian Harper, while respondent Rigoberto Gillera is their authorized representative in the Philippines. Antecedents In the first week of November 1999, Christian Harper came to Manila on a business trip as the Business Development Manager for Asia of ALSTOM Power Norway AS, an engineering firm with worldwide operations. He checked in at the Shangri-La Hotel and was billeted at Room 1428. He was due to check out on November 6, 1999. In the early morning of that date, however, he was murdered inside his hotel room by still unidentified malefactors. He was then 30 years old. How the crime was discovered was a story in itself. A routine verification call from the American Express Card Company to cardholder Harpers residence in Oslo, Norway (i.e., Bygdoy Terasse 16, 0287 Oslo, Norway) led to the discovery. It appears that at around 11:00 am of November 6, 1999, a Caucasian male of about 3032 years in age, 54" in height, clad in maroon long sleeves, black denims and black shoes, entered the Alexis Jewelry Store in Glorietta, Ayala Center, Makati City and expressed interest in purchasing a Cartier ladys watch valued at P320,000.00 with the use of two Mastercard credit cards and an American Express credit card issued in the name of Harper. But the customers difficulty in answering the queries

phoned in by a credit card representative sufficiently aroused the suspicion of saleslady Anna Liza Lumba (Lumba), who asked for the customers passport upon suggestion of the credit card representative to put the credit cards on hold. Probably sensing trouble for himself, the customer hurriedly left the store, and left the three credit cards and the passport behind. In the meanwhile, Harpers family in Norway must have called him at his hotel room to inform him about the attempt to use his American Express card. Not getting any response from the room, his family requested Raymond Alarcon, the Duty Manager of the Shangri-La Hotel, to check on Harpers room. Alarcon and a security personnel went to Room 1428 at 11:27 a.m., and were shocked to discover Harpers lifeless body on the bed. Col. Rodrigo de Guzman (de Guzman), the hotels Security Manager, initially investigated the murder. In his incident report, he concluded from the several empty bottles of wine in the trash can and the number of cigarette butts in the toilet bowl that Harper and his visitors had drunk that much and smoked that many cigarettes the night before.3 The police investigation actually commenced only upon the arrival in the hotel of the team of PO3 Carmelito Mendoza4 and SPO4 Roberto Hizon. Mendoza entered Harpers room in the company of De Guzman, Alarcon, Gami Holazo (the hotels Executive Assistant Manager), Norge Rosales (the hotels Executive Housekeeper), and Melvin Imperial (a security personnel of the hotel). They found Harpers body on the bed covered with a blanket, and only the back of the head could be seen. Lifting the blanket, Mendoza saw that the victims eyes and mouth had been bound with electrical and packaging tapes, and his hands and feet tied with a white rope. The body was identified to be that of hotel guest Christian Fredrik Harper. Mendoza subsequently viewed the closed circuit television (CCTV) tapes, from which he found that Harper had entered his room at 12:14 a.m. of November 6, 1999, and had been followed into the room at 12:17 a.m. by a woman; that another person, a Caucasian male, had entered Harpers room at 2:48 a.m.; that the woman had left the room at around 5:33 a.m.; and that the Caucasian male had come out at 5:46 a.m. On November 10, 1999, SPO1 Ramoncito Ocampo, Jr. interviewed Lumba about the incident in the Alexis Jewelry Shop. During the interview, Lumba confirmed that the person who had attempted to purchase the Cartier ladys watch on November 6, 1999 had been the person whose picture was on the passport issued under the name of Christian Fredrik Harper and the Caucasian male seen on the CCTV tapes entering Harpers hotel room. Sr. Insp. Danilo Javier of the Criminal Investigation Division of the Makati City Police reflected in his Progress Report No. 25 that the police investigation showed that Harpers passport, credit cards, laptop and an undetermined amount of cash had been missing from the crime scene; and that he had learned during the follow-up investigation about an unidentified Caucasian males attempt to purchase a Cartier ladys watch from the Alexis Jewelry Store in Glorietta, Ayala Center, Makati City with the use of one of Harpers credit cards. On August 30, 2002, respondents commenced this suit in the RTC to recover various damages from petitioner,6pertinently alleging:

xxx 7. The deceased was to check out and leave the hotel on November 6, 1999, but in the early morning of said date, while he was in his hotel room, he was stabbed to death by an (sic) still unidentified male who had succeeded to intrude into his room. 8. The murderer succeeded to trespass into the area of the hotels private rooms area and into the room of the said deceased on account of the hotels gross negligence in providing the most basic security system of its guests, the lack of which owing to the acts or omissions of its employees was the immediate cause of the tragic death of said deceased. xxx 10. Defendant has prided itself to be among the top hotel chains in the East claiming to provide excellent service, comfort and security for its guests for which reason ABB Alstom executives and their guests have invariably chosen this hotel to stay.7 xxx Ruling of the RTC On October 25, 2005, the RTC rendered judgment after trial,8 viz: WHEREFORE, finding the defendant hotel to be remiss in its duties and thus liable for the death of Christian Harper, this Court orders the defendant to pay plaintiffs the amount of: PhP 43,901,055.00 as and by way of actual and compensatory damages; PhP 739,075.00 representing the expenses of transporting the remains of Harper to Oslo, Norway; PhP 250,000.00 attorneys fees; and to pay the cost of suit. SO ORDERED. Ruling of the CA Petitioner appealed, assigning to the RTC the following errors, to wit: I THE TRIAL COURT ERRED IN RULING THAT THE PLAINTIFFS-APPELLEES ARE THE HEIRS OF THE LATE CHRISTIAN HARPER, AS THERE IS NO COMPETENT EVIDENCE ON RECORD SUPPORTING SUCH RULING.

II THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANTAPPELLANTSNEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DEATH OF MR. HARPER, OR IN NOT RULING THAT IT WAS MR. CHRISTIAN HARPERS OWN NEGLIGENCE WHICH WAS THE SOLE, PROXIMATE CAUSE OF HIS DEATH. III THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFS-APPELLEES THE AMOUNTOF PHP43,901,055.00, REPRESENTING THE ALLEGED LOST EARNING OF THE LATE CHRISTIAN HARPER, THERE BEING NO COMPETENT PROOF OF THE EARNING OF MR. HARPER DURING HIS LIFETIME AND OF THE ALLEGATION THAT THE PLAINTIFFS-APPELLEES ARE MR. HARPERS HEIRS. IV THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFS-APPELLEES THE AMOUNT OF PHP739,075.00, REPRESENTING THE ALLEGED COST OF TRANSPORTING THE REMAINS OF MR. CHRISTIAN HARPER TO OSLO, NORWAY, THERE BEING NO PROOF ON RECORD THAT IT WAS PLAINTIFFS-APPELLEES WHO PAID FOR SAID COST. V THE TRIAL COURT ERRED IN AWARDING ATTORNEYS FEES AND COST OF SUIT TO THE PLAINTIFFS-APPELLEES, THERE BEING NO PROOF ON RECORD SUPPORTING SUCH AWARD. On October 21, 2009, the CA affirmed the judgment of the RTC with modification,9 as follows: WHEREFORE, the assailed Decision of the Regional Trial Court dated October 25, 2005 is herebyAFFIRMED with MODIFICATION. Accordingly, defendant-appellant is ordered to pay plaintiffs-appellees the amounts of P 52,078,702.50, as actual and compensatory damages; P 25,000.00, as temperate damages; P 250,000.00, as attorneys fees; and to pay the costs of the suit. SO ORDERED.10 Issues Petitioner still seeks the review of the judgment of the CA, submitting the following issues for consideration and determination, namely: I.

WHETHER OR NOT THE PLAINTIFFS-APPELLEES WERE ABLE TO PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT THAT THEY ARE THE WIDOW AND SON OF MR. CHRISTIAN HARPER. II. WHETHER OR NOT THE APPELLEES WERE ABLE TO PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT THAT THERE WAS NEGLIGENCE ON THE PART OF THE APPELLANT AND ITS SAID NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DEATH OF MR. CHRISTIAN HARPER. III. WHETHER OR NOT THE PROXIMATE CAUSE OF THE DEATH OF MR. CHRISTIAN HARPER WAS HIS OWN NEGLIGENCE. Ruling The appeal lacks merit. I. Requirements for authentication of documents establishing respondents legal relationship with the victim as his heirs were complied with As to the first issue, the CA pertinently held as follows: The documentary evidence that plaintiffs-appellees offered relative to their heirship consisted of the following 1. Exhibit "Q" - Birth Certificate of Jonathan Christopher Harper, son of Christian Fredrik Harper and Ellen Johanne Harper; 2. Exhibit "Q-1" - Marriage Certificate of Ellen Johanne Clausen and Christian Fredrik Harper; 3. Exhibit "R" - Birth Certificate of Christian Fredrick Harper, son of Christopher Shaun Harper and Eva Harper; and 4. Exhibit "R-1" - Certificate from the Oslo Probate Court stating that Ellen Harper was married to the deceased, Christian Fredrick Harper and listed Ellen Harper and Jonathan Christopher Harper as the heirs of Christian Fredrik Harper. Defendant-appellant points out that plaintiffs-appellees committed several mistakes as regards the above documentary exhibits, resultantly making them incompetent evidence, to wit, (a) none of the plaintiffs-appellees or any of the witnesses who testified for the plaintiffs gave

evidence that Ellen Johanne Harper and Jonathan Christopher Harper are the widow and son of the deceased Christian Fredrik Harper; (b) Exhibit "Q" was labeled as Certificate of Marriage in plaintiffs-appellees Formal Offer of Evidence, when it appears to be the Birth Certificate of the late Christian Harper; (c) Exhibit "Q-1" is a translation of the Marriage Certificate of Ellen Johanne Harper and Christian Fredrik Harper, the original of which was not produced in court, much less, offered in evidence. Being a mere translation, it cannot be a competent evidence of the alleged fact that Ellen Johanne Harper is the widow of Christian Fredrik Harper, pursuant to the Best Evidence Rule. Even assuming that it is an original Marriage Certificate, it is not a public document that is admissible without the need of being identified or authenticated on the witness stand by a witness, as it appears to be a document issued by the Vicar of the Parish of Ullern and, hence, a private document; (d) Exhibit "R" was labeled as Probate Court Certificate in plaintiffs-appellees Formal Offer of Evidence, when it appears to be the Birth Certificate of the deceased, Christian Fredrik Harper; and (e) Exhibit "R-1" is a translation of the supposed Probate Court Certificate, the original of which was not produced in court, much less, offered in evidence. Being a mere translation, it is an incompetent evidence of the alleged fact that plaintiffs-appellees are the heirs of Christian Fredrik Harper, pursuant to the Best Evidence Rule. Defendant-appellant further adds that Exhibits "Q-1" and "R-1" were not duly attested by the legal custodians (by the Vicar of the Parish of Ullern for Exhibit "Q-1" and by the Judge or Clerk of the Probate Court for Exhibit "R-1") as required under Sections 24 and 25, Rule 132 of the Revised Rules of Court. Likewise, the said documents are not accompanied by a certificate that such officer has the custody as also required under Section 24 of Rule 132. Consequently, defendant-appellant asseverates that Exhibits "Q-1" and "R-1" as private documents, which were not duly authenticated on the witness stand by a competent witness, are essentially hearsay in nature that have no probative value. Therefore, it is obvious that plaintiffs-appellees failed to prove that they are the widow and son of the late Christian Harper. Plaintiffs-appellees make the following counter arguments, viz, (a) Exhibit "Q-1", the Marriage Certificate of Ellen Johanne Harper and Christian Fredrik Harper, was issued by the Office of the Vicar of Ullern with a statement that "this certificate is a transcript from the Register of Marriage of Ullern Church." The contents of Exhibit "Q-1" were translated by the Government of the Kingdom of Norway, through its authorized translator, into English and authenticated by the Royal Ministry of Foreign Affairs of Norway, which in turn, was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden; (b) Exhibit "Q", the Birth Certificate of Jonathan Christopher Harper, was issued and signed by the Registrar of the Kingdom of Norway, as authenticated by the Royal Ministry of Foreign Affairs of Norway, whose signature was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden; and (c) Exhibit "R-1", the Probate Court Certificate was also authenticated by the Royal Ministry of Foreign Affairs of Norway, whose signature was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden. They further argue that since Exhibit "Q-1", Marriage Certificate, was issued by the vicar or parish priest, the legal custodian of parish records, it is considered as an exception to the hearsay rule. As for Exhibit "R-1", the Probate Court Certificate, while the document is indeed a translation of the certificate, it is an official certification, duly confirmed by the Government of

the Kingdom of Norway; its contents were lifted by the Government Authorized Translator from the official record and thus, a written official act of a foreign sovereign country. WE rule for plaintiffs-appellees. The Revised Rules of Court provides that public documents may be evidenced by a copy attested by the officer having the legal custody of the record. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. If the record is not kept in the Philippines, the attested copy must be accompanied with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The documents involved in this case are all kept in Norway. These documents have been authenticated by the Royal Norwegian Ministry of Foreign Affairs; they bear the official seal of the Ministry and signature of one, Tanja Sorlie. The documents are accompanied by an Authentication by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden to the effect that, Tanja Sorlie is duly authorized to legalize official documents for the Ministry. Exhibits "Q" and "R" are extracts of the register of births of both Jonathan Christopher Harper and the late Christian Fredrik Harper, respectively, wherein the former explicitly declares that Jonathan Christopher is the son of Christian Fredrik and Ellen Johanne Harper. Said documents bear the signature of the keeper, Y. Ayse B. Nordal with the official seal of the Office of the Registrar of Oslo, and the authentication of Tanja Sorlie of the Royal Ministry of Foreign Affairs, Oslo, which were further authenticated by Philippine Consul Marian Jocelyn R. Tirol. In addition, the latter states that said documents are the birth certificates of Jonathan Christopher Harper and Christian Fredrik Harper issued by the Registrar Office of Oslo, Norway on March 23, 2004. Exhibits "Q-1", on the other hand, is the Marriage Certificate of Christian Fredrik Harper and Ellen Johanne Harper issued by the vicar of the Parish of Ullern while Exhibit "R-1" is the Probate Court Certificate from the Oslo Probate Court, naming Ellen Johanne Harper and Jonathan Christopher Harper as the heirs of the deceased Christian Fredrik Harper. The documents are certified true translations into English of the transcript of the said marriage certificate and the probate court certificate. They were likewise signed by the authorized government translator of Oslo with the seal of his office; attested by Tanja Sorlie and further certified by our own Consul. In view of the foregoing, WE conclude that plaintiffs-appellees had substantially complied with the requirements set forth under the rules. WE would also like to stress that plaintiffs-appellees herein are residing overseas and are litigating locally through their representative. While they

are not excused from complying with our rules, WE must take into account the attendant reality that these overseas litigants communicate with their representative and counsel via long distance communication. Add to this is the fact that compliance with the requirements on attestation and authentication or certification is no easy process and completion thereof may vary depending on different factors such as the location of the requesting party from the consulate and the office of the record custodian, the volume of transactions in said offices and even the mode of sending these documents to the Philippines. With these circumstances under consideration, to OUR minds, there is every reason for an equitable and relaxed application of the rules on the issuance of the required attestation from the custodian of the documents to plaintiffs-appellees situation. Besides, these questioned documents were duly signed by the officers having custody of the same.11 Petitioner assails the CAs ruling that respondents substantially complied with the rules on the authentication of the proofs of marriage and filiation set by Section 24 and Section 25 of Rule 132 of the Rules of Court when they presented Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1, because the legal custodian did not duly attest that Exhibit Q-1 and Exhibit R-1 were the correct copies of the originals on file, and because no certification accompanied the documents stating that "such officer has custody of the originals." It contends that respondents did not competently prove their being Harpers surviving heirs by reason of such documents being hearsay and incompetent. Petitioners challenge against respondents documentary evidence on marriage and heirship is not well-taken. Section 24 and Section 25 of Rule 132 provide: Section 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Section 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. Although Exhibit Q,12 Exhibit Q-1,13 Exhibit R14 and Exhibit R-115 were not attested by the officer having the legal custody of the record or by his deputy in the manner required in Section 25 of Rule 132, and said documents did not comply with the requirement under Section 24 of Rule 132 to the effect that if the record was not kept in the Philippines a certificate of the person having custody must accompany the copy of the document that was duly attested stating that

such person had custody of the documents, the deviation was not enough reason to reject the utility of the documents for the purposes they were intended to serve. Exhibit Q and Exhibit R were extracts from the registry of births of Oslo, Norway issued on March 23, 2004 and signed by Y. Ayse B. Nordal, Registrar, and corresponded to respondent Jonathan Christopher Harper and victim Christian Fredrik Harper, respectively.16 Exhibit Q explicitly stated that Jonathan was the son of Christian Fredrik Harper and Ellen Johanne Harper, while Exhibit R attested to the birth of Christian Fredrik Harper on December 4, 1968. Exhibit Q and Exhibit R were authenticated on March 29, 2004 by the signatures of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway as well as by the official seal of that office. In turn, Consul Marian Jocelyn R. Tirol of the Philippine Consulate in Stockholm, Sweden authenticated the signatures of Tanja Sorlie and the official seal of the Royal Ministry of Foreign Affairs of Norway on Exhibit Q and Exhibit R, explicitly certifying to the authority of Tanja Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway."17 Exhibit Q-1,18 the Marriage Certificate of Ellen Johanne Clausen Harper and Christian Fredrik Harper, contained the following data, namely: (a) the parties were married on June 29, 1996 in Ullern Church; and (b) the certificate was issued by the Office of the Vicar of Ullern on June 29, 1996. Exhibit Q-1 was similarly authenticated by the signature of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway, with the official seal of that office. Philippine Consul Tirol again expressly certified to the capacity of Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway,"19 and further certified that the document was a true translation into English of a transcript of a Marriage Certificate issued to Christian Frederik Harper and Ellen Johanne Clausen by the Vicar of the Parish of Ullern on June 29, 1996. Exhibit R-1,20 a Probate Court certificate issued by the Oslo Probate Court on February 18, 2000 through Morten Bolstad, its Senior Executive Officer, was also authenticated by the signature of Tanja Sorlie and with the official seal of the Royal Ministry of Foreign Affairs of Norway. As with the other documents, Philippine Consul Tirol explicitly certified to the capacity of Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway," and further certified that the document was a true translation into English of the Oslo Probate Court certificate issued on February 18, 2000 to the effect that Christian Fredrik Harper, born on December 4, 1968, had reportedly died on November 6, 1999.21 The Oslo Probate Court certificate recited that both Ellen Johanne Harper and Christopher S. Harper were Harpers heirs, to wit: The above names surviving spouse has accepted responsibility for the commitments of the deceased in accordance with the provisions of Section 78 of the Probate Court Act (Norway), and the above substitute guardian has agreed to the private division of the estate. The following heir and substitute guardian will undertake the private division of the estate: Ellen Johanne Harper Christopher S. Harper

This probate court certificate relates to the entire estate. Oslo Probate Court, 18 February 2000.22 The official participation in the authentication process of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway and the attachment of the official seal of that office on each authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 were documents of a public nature in Norway, not merely private documents. It cannot be denied that based on Philippine Consul Tirols official authentication, Tanja Sorlie was "on the date of signing, duly authorized to legalize official documents for the Royal Ministry of Foreign Affairs of Norway." Without a showing to the contrary by petitioner, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 should be presumed to be themselves official documents under Norwegian law, and admissible as prima facie evidence of the truth of their contents under Philippine law. At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 substantially met the requirements of Section 24 and Section 25 of Rule 132 as a condition for their admission as evidence in default of a showing by petitioner that the authentication process was tainted with bad faith. Consequently, the objective of ensuring the authenticity of the documents prior to their admission as evidence was substantially achieved. In Constantino-David v. PangandamanGania,23 the Court has said that substantial compliance, by its very nature, is actually inadequate observance of the requirements of a rule or regulation that are waived under equitable circumstances in order to facilitate the administration of justice, there being no damage or injury caused by such flawed compliance. The Court has further said in Constantino-David v. Pangandaman-Gania that the focus in every inquiry on whether or not to accept substantial compliance is always on the presence of equitable conditions to administer justice effectively and efficiently without damage or injury to the spirit of the legal obligation.24 There are, indeed, such equitable conditions attendant here, the foremost of which is that respondents had gone to great lengths to submit the documents. As the CA observed, respondents compliance with the requirements on attestation and authentication of the documents had not been easy; they had to contend with many difficulties (such as the distance of Oslo, their place of residence, from Stockholm, Sweden, where the Philippine Consulate had its office; the volume of transactions in the offices concerned; and the safe transmission of the documents to the Philippines).25 Their submission of the documents should be presumed to be in good faith because they did so in due course. It would be inequitable if the sincerity of respondents in obtaining and submitting the documents despite the difficulties was ignored. The principle of substantial compliance recognizes that exigencies and situations do occasionally demand some flexibility in the rigid application of the rules of procedure and the laws.26 That rules of procedure may be mandatory in form and application does not forbid a showing of substantial compliance under justifiable circumstances,27 because substantial compliance does not equate to a disregard of basic rules. For sure, substantial compliance and strict adherence are not always incompatible and do not always clash in discord. The power of the Court to suspend its own rules or to except any particular case from the operation of the rules whenever the purposes of justice require the suspension cannot be challenged.28 In the interest of substantial justice, even procedural rules of the most mandatory character in terms of

compliance are frequently relaxed. Similarly, the procedural rules should definitely be liberally construed if strict adherence to their letter will result in absurdity and in manifest injustice, or where the merits of a partys cause are apparent and outweigh considerations of noncompliance with certain formal requirements.29 It is more in accord with justice that a partylitigant is given the fullest opportunity to establish the merits of his claim or defense than for him to lose his life, liberty, honor or property on mere technicalities. Truly, the rules of procedure are intended to promote substantial justice, not to defeat it, and should not be applied in a very rigid and technical sense.30 Petitioner urges the Court to resolve the apparent conflict between the rulings in Heirs of Pedro Cabais v. Court of Appeals31 (Cabais) and in Heirs of Ignacio Conti v. Court of Appeals32 (Conti) establishing filiation through a baptismal certificate.33 Petitioners urging is not warranted, both because there is no conflict between the rulings in Cabais and Conti, and because neither Cabais nor Conti is relevant herein. In Cabais, the main issue was whether or not the CA correctly affirmed the decision of the RTC that had relied mainly on the baptismal certificate of Felipa C. Buesa to establish the parentage and filiation of Pedro Cabais. The Court held that the petition was meritorious, stating: A birth certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to overthrow the presumption of truth contained in such public document. This is pursuant to the rule that entries in official records made in the performance of his duty by a public officer are prima facie evidence of the facts therein stated. The evidentiary nature of such document must, therefore, be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity. On the contrary, a baptismal certificate is a private document, which, being hearsay, is not a conclusive proof of filiation. It does not have the same probative value as a record of birth, an official or public document. In US v. Evangelista, this Court held that church registers of births, marriages, and deaths made subsequent to the promulgation of General Orders No. 68 and the passage of Act No. 190 are no longer public writings, nor are they kept by duly authorized public officials. Thus, in this jurisdiction, a certificate of baptism such as the one herein controversy is no longer regarded with the same evidentiary value as official records of birth. Moreover, on this score, jurisprudence is consistent and uniform in ruling that the canonical certificate of baptism is not sufficient to prove recognition.34 The Court sustained the Cabais petitioners stance that the RTC had apparently erred in relying on the baptismal certificate to establish filiation, stressing the baptismal certificates limited evidentiary value as proof of filiation inferior to that of a birth certificate; and declaring that the baptismal certificate did not attest to the veracity of the statements regarding the kinsfolk of the one baptized. Nevertheless, the Court ultimately ruled that it was respondents failure to present the birth certificate, more than anything else, that lost them their case, stating that: "The unjustified failure to present the birth certificate instead of the baptismal certificate now under consideration or to otherwise prove filiation by any other means recognized by law weigh heavily against respondents."35

In Conti, the Court affirmed the rulings of the trial court and the CA to the effect that the Conti respondents were able to prove by preponderance of evidence their being the collateral heirs of deceased Lourdes Sampayo. The Conti petitioners disagreed, arguing that baptismal certificates did not prove the filiation of collateral relatives of the deceased. Agreeing with the CA, the Court said: We are not persuaded. Altogether, the documentary and testimonial evidence submitted xxx are competent and adequate proofs that private respondents are collateral heirs of Lourdes Sampayo. xxx Under Art. 172 of the Family Code, the filiation of legitimate children shall be proved by any other means allowed by the Rules of Court and special laws, in the absence of a record of birth or a parents admission of such legitimate filiation in a public or private document duly signed by the parent. Such other proof of ones filiation may be a baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule 130 of the Rules of Court. By analogy, this method of proving filiation may also be utilized in the instant case. Public documents are the written official acts, or records of the official act of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or a foreign country. The baptismal certificates presented in evidence by private respondents are public documents. Parish priests continue to be the legal custodians of the parish records and are authorized to issue true copies, in the form of certificates, of the entries contained therein. The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28 Phil. 105 1914, thus: .... The entries made in the Registry Book may be considered as entries made in the course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during this course of its business. It may be argued that baptismal certificates are evidence only of the administration of the sacrament, but in this case, there were four (4) baptismal certificates which, when taken together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove filiation.36 Obviously, Conti did not treat a baptismal certificate, standing alone, as sufficient to prove filiation; on the contrary,Conti expressly held that a baptismal certificate had evidentiary value

to prove filiation if considered alongside other evidence of filiation. As such, a baptismal certificate alone is not sufficient to resolve a disputed filiation. Unlike Cabais and Conti, this case has respondents presenting several documents, like the birth certificates of Harper and respondent Jonathan Harper, the marriage certificate of Harper and Ellen Johanne Harper, and the probate court certificate, all of which were presumably regarded as public documents under the laws of Norway. Such documentary evidence sufficed to competently establish the relationship and filiation under the standards of our Rules of Court. II Petitioner was liable due to its own negligence Petitioner argues that respondents failed to prove its negligence; that Harpers own negligence in allowing the killers into his hotel room was the proximate cause of his own death; and that hotels were not insurers of the safety of their guests. The CA resolved petitioners arguments thuswise: Defendant-appellant contends that the pivotal issue is whether or not it had committed negligence and corollarily, whether its negligence was the immediate cause of the death of Christian Harper. In its defense, defendant-appellant mainly avers that it is equipped with adequate security system as follows: (1) keycards or vingcards for opening the guest rooms, (2) two CCTV monitoring cameras on each floor of the hotel and (3) roving guards with handheld radios, the number of which depends on the occupancy rate of the hotel. Likewise, it reiterates that the proximate cause of Christian Harpers death was his own negligence in inviting to his room the two (2) still unidentified suspects. Plaintiffs-appellees in their Brief refute, in that, the liability of defendant-appellant is based upon the fact that it was in a better situation than the injured person, Christian Harper, to foresee and prevent the happening of the injurious occurrence. They maintain that there is no dispute that even prior to the untimely demise of Christian Harper, defendant-appellant was duly forewarned of its security lapses as pointed out by its Chief Security Officer, Col. Rodrigo De Guzman, who recommended that one roving guard be assigned on each floor of the hotel considering the length and shape of the corridors. They posit that defendant-appellants inaction constitutes negligence. This Court finds for plaintiffs-appellees. As the action is predicated on negligence, the relevant law is Article 2176 of the Civil Code, which states that "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this chapter."

Negligence is defined as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The Supreme Court likewise ruled that negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. In determining whether or not there is negligence on the part of the parties in a given situation, jurisprudence has laid down the following test: Did defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law. The test of negligence is objective. WE measure the act or omission of the tortfeasor with a perspective as that of an ordinary reasonable person who is similarly situated. The test, as applied to the extant case, is whether or not defendant-appellant, under the attendant circumstances, used that reasonable care and caution which an ordinary reasonable person would have used in the same situation. WE rule in the negative. In finding defendant-appellant remiss in its duty of exercising the required reasonable care under the circumstances, the court a quo reasoned-out, to wit: "Of the witnesses presented by plaintiffs to prove its (sic) case, the only one with competence to testify on the issue of adequacy or inadequacy of security is Col. Rodrigo De Guzman who was then the Chief Security Officer of defendant hotel for the year 1999. He is a retired police officer and had vast experience in security jobs. He was likewise a member of the elite Presidential Security Group. He testified that upon taking over the job as the chief of the security force of the hotel, he made an assessment of the security situation. Col. De Guzman was not satisfied with the security setup and told the hotel management of his desire to improve it. In his testimony, De Guzman testified that at the time he took over, he noticed that there were few guards in the elevated portion of the hotel where the rooms were located. The existing security scheme then was one guard for 3 or 4 floors. He likewise testified that he recommended to the hotel management that at least one guard must be assigned per floor especially considering that the hotel has a long "Lshaped" hallway, such that one cannot see both ends of the hallway. He further opined that "even one guard in that hallway is not enough because of the blind portion of the hallway." On cross-examination, Col. De Guzman testified that the security of the hotel was adequate at the time the crime occurred because the hotel was not fully booked. He qualified his testimony on direct in that his recommendation of one guard per floor is the "ideal" set-up when the hotel is fully-booked. Be that as it may, it must be noted that Col. De Guzman also testified that the reason why the hotel management disapproved his recommendation was that the hotel was not doing well. It is

for this reason that the hotel management did not heed the recommendation of Col. De Guzman, no matter how sound the recommendation was, and whether the hotel is fully-booked or not. It was a business judgment call on the part of the defendant. Plaintiffs anchor its (sic) case on our law on quasi-delicts. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called quasi-delict. Liability on the part of the defendant is based upon the fact that he was in a better situation than the injured person to foresee and prevent the happening of the injurious occurrence. There is no dispute that even prior to the untimely demise of Mr. Harper, defendant was duly forewarned of the security lapses in the hotel. Col. De Guzman was particularly concerned with the security of the private areas where the guest rooms are. He wanted not just one roving guard in every three or four floors. He insisted there must be at least one in each floor considering the length and the shape of the corridors. The trained eyes of a security officer was (sic) looking at that deadly scenario resulting from that wide security breach as that which befell Christian Harper. The theory of the defense that the malefactor/s was/were known to Harper or was/were visitors of Harper and that there was a shindig among [the] three deserves scant consideration. The NBI Biology Report (Exh. "C" & "D") and the Toxicology Report (Exh. "E") belie the defense theory of a joyous party between and among Harper and the unidentified malefactor/s. Based on the Biology Report, Harper was found negative of prohibited and regulated drugs. The Toxicology Report likewise revealed that the deceased was negative of the presence of alcohol in his blood. The defense even suggests that the malefactor/s gained entry into the private room of Harper either because Harper allowed them entry by giving them access to the vingcard or because Harper allowed them entry by opening the door for them, the usual gesture of a room occupant to his visitors. While defendants theory may be true, it is more likely, under the circumstances obtaining that the malefactor/s gained entry into his room by simply knocking at Harpers door and the latter opening it probably thinking it was hotel personnel, without an inkling that criminal/s could be in the premises. The latter theory is more attuned to the dictates of reason. If indeed the female "visitor" is known to or a visitor of Harper, she should have entered the the room together with Harper. It is quite unlikely that a supposed "visitor" would wait three minutes to be with a guest when he/she could go with the guest directly to the room. The interval of three minutes in Harpers entry and that of the alleged female visitor belies the "theory of acquaintanceship". It is most likely that the female "visitor" was the one who opened the door to the male "visitor", undoubtedly, a co-conspirator.

In any case, the ghastly incident could have been prevented had there been adequate security in each of the hotel floors. This, coupled with the earlier recommendation of Col. De Guzman to the hotel management to act on the security lapses of the hotel, raises the presumption that the crime was foreseeable. Clearly, defendants inaction constitutes negligence or want of the reasonable care demanded of it in that particular situation. In a case, the Supreme Court defined negligence as: The failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance, which the circumstances justly demand, whereby such person suffers injury. Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. Where the danger is great, a high degree of care is necessary. Moreover, in applying the premises liability rule in the instant case as it is applied in some jurisdiction (sic) in the United States, it is enough that guests are injured while inside the hotel premises to make the hotelkeeper liable. With great caution should the liability of the hotelkeeper be enforced when a guest died inside the hotel premises. It also bears stressing that there were prior incidents that occurred in the hotel which should have forewarned the hotel management of the security lapses of the hotel. As testified to by Col. De Guzman, "there were minor incidents" (loss of items) before the happening of the instant case. These "minor" incidents may be of little significance to the hotel, yet relative to the instant case, it speaks volume. This should have served as a caveat that the hotel security has lapses. Makati Shangri-La Hotel, to stress, is a five-star hotel. The "reasonable care" that it must exercise for the safety and comfort of its guests should be commensurate with the grade and quality of the accommodation it offers. If there is such a thing as "five-star hotel security", the guests at Makati Shangri-La surely deserves just that! When one registers (as) a guest of a hotel, he makes the establishment the guardian of his life and his personal belongings during his stay. It is a standard procedure of the management of the hotel to screen visitors who call on their guests at their rooms. The murder of Harper could have been avoided had the security guards of the Shangri-La Hotel in Makati dutifully observed this standard procedure." WE concur. Well settled is the doctrine that "the findings of fact by the trial court are accorded great respect by appellate courts and should not be disturbed on appeal unless the trial court has overlooked,

ignored, or disregarded some fact or circumstances of sufficient weight or significance which, if considered, would alter the situation." After a conscientious sifting of the records, defendantappellant fails to convince US to deviate from this doctrine. It could be gleaned from findings of the trial court that its conclusion of negligence on the part of defendant-appellant is grounded mainly on the latters inadequate hotel security, more particularly on the failure to deploy sufficient security personnel or roving guards at the time the ghastly incident happened. A review of the testimony of Col. De Guzman reveals that on direct examination he testified that at the time he assumed his position as Chief Security Officer of defendant-appellant, during the early part of 1999 to the early part of 2000, he noticed that some of the floors of the hotel were being guarded by a few guards, for instance, 3 or 4 floors by one guard only on a roving manner. He then made a recommendation that the ideal-set up for an effective security should be one guard for every floor, considering that the hotel is L-shaped and the ends of the hallways cannot be seen. At the time he made the recommendation, the same was denied, but it was later on considered and approved on December 1999 because of the Centennial Celebration. On cross-examination, Col. De Guzman confirmed that after he took over as Chief Security Officer, the number of security guards was increased during the first part of December or about the last week of November, and before the incident happened, the security was adequate. He also qualified that as to his direct testimony on "ideal-set up", he was referring to one guard for every floor if the hotel is fully booked. At the time he made his recommendation in the early part of 1999, it was disapproved as the hotel was not doing well and it was not fully booked so the existing security was adequate enough. He further explained that his advice was observed only in the late November 1999 or the early part of December 1999. It could be inferred from the foregoing declarations of the former Chief Security Officer of defendant-appellant that the latter was negligent in providing adequate security due its guests. With confidence, it was repeatedly claimed by defendant-appellant that it is a five-star hotel. Unfortunately, the record failed to show that at the time of the death of Christian Harper, it was exercising reasonable care to protect its guests from harm and danger by providing sufficient security commensurate to it being one of the finest hotels in the country. In so concluding, WE are reminded of the Supreme Courts enunciation that the hotel business like the common carriers business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for hotel guests but also security to their persons and belongings. The twin duty constitutes the essence of the business. It is clear from the testimony of Col. De Guzman that his recommendation was initially denied due to the fact that the business was then not doing well. The "one guard, one floor" recommended policy, although ideal when the hotel is fully-booked, was observed only later in November 1999 or in the early part of December 1999, or needless to state, after the murder of Christian Harper. The apparent security lapses of defendant-appellant were further shown when the male culprit who entered Christian Harpers room was never checked by any of the guards when he came inside the hotel. As per interview conducted by the initial investigator, PO3 Cornelio Valiente to the guards, they admitted that nobody know that said man entered the hotel and it was only through the monitor that they became aware of his entry. It was even

evidenced by the CCTV that before he walked to the room of the late Christian Harper, said male suspect even looked at the monitoring camera. Such act of the man showing wariness, added to the fact that his entry to the hotel was unnoticed, at an unholy hour, should have aroused suspicion on the part of the roving guard in the said floor, had there been any. Unluckily for Christian Harper, there was none at that time. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces, the injury, and without which the result would not have occurred. More comprehensively, proximate cause is that cause acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. Defendant-appellants contention that it was Christian Harpers own negligence in allowing the malefactors to his room that was the proximate cause of his death, is untenable. To reiterate, defendant-appellant is engaged in a business imbued with public interest, ergo, it is bound to provide adequate security to its guests. As previously discussed, defendant-appellant failed to exercise such reasonable care expected of it under the circumstances. Such negligence is the proximate cause which set the chain of events that led to the eventual demise of its guest. Had there been reasonable security precautions, the same could have saved Christian Harper from a brutal death. The Court concurs entirely with the findings and conclusions of the CA, which the Court regards to be thorough and supported by the records of the trial. Moreover, the Court cannot now review and pass upon the uniform findings of negligence by the CA and the RTC because doing so would require the Court to delve into and revisit the factual bases for the finding of negligence, something fully contrary to its character as not a trier of facts. In that regard, the factual findings of the trial court that are supported by the evidence on record, especially when affirmed by the CA, are conclusive on the Court.37 Consequently, the Court will not review unless there are exceptional circumstances for doing so, such as the following: (a) When the findings are grounded entirely on speculation, surmises or conjectures; (b) When the inference made is manifestly mistaken, absurd or impossible; (c) When there is grave abuse of discretion; (d) When the judgment is based on a misapprehension of facts; (e) When the findings of facts are conflicting; (f) When in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;

(g) When the findings are contrary to the trial court; (h) When the findings are conclusions without citation of specific evidence on which they are based; (i) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.38 None of the exceptional circumstances obtains herein. Accordingly, the Court cannot depart from or disturb the factual findings on negligence of petitioner made by both the RTC and the CA.39 Even so, the Court agrees with the CA that petitioner failed to provide the basic and adequate security measures expected of a five-star hotel; and that its omission was the proximate cause of Harpers death. The testimony of Col. De Guzman revealed that the management practice prior to the murder of Harper had been to deploy only one security or roving guard for every three or four floors of the building; that such ratio had not been enough considering the L-shape configuration of the hotel that rendered the hallways not visible from one or the other end; and that he had recommended to management to post a guard for each floor, but his recommendation had been disapproved because the hotel "was not doing well" at that particular time.40 Probably realizing that his testimony had weakened petitioners position in the case, Col. De Guzman soon clarified on cross-examination that petitioner had seen no need at the time of the incident to augment the number of guards due to the hotel being then only half-booked. Here is how his testimony went: ATTY MOLINA: I just forgot one more point, Your Honor please. Was there ever a time, Mr. Witness, that your recommendation to post a guard in every floor ever considered and approved by the hotel? A: Yes, Sir. Q: When was this? A: That was on December 1999 because of the Centennial Celebration when the hotel accepted so many guests wherein most of the rooms were fully booked and I recommended that all the hallways should be guarded by one guard.41

xxx ATTY COSICO: Q: So at that time that you made your recommendation, the hotel was half-filled. A: Maybe. Q: And even if the hotel is half-filled, your recommendation is that each floor shall be maintained by one security guard per floors? A: Yes sir. Q: Would you agree with me that even if the hotel is half-filled, there is no need to increase the guards because there were only few customers? A: I think so. Q: So you will agree with me that each floor should be maintained by one security guard if the rooms are filled up or occupied? A: Yes sir. Q: Now, you even testified that from January 1999 to November 1999 thereof, only minor incidents were involved? A: Yes sir. Q: So it would be correct to say that the security at that time in February was adequate? A: I believe so. Q: Even up to November when the incident happened for that same reason, security was adequate? A: Yes, before the incident. Q: Now, you testified on direct that the hotel posted one guard each floor? A: Yes sir. Q: And it was your own recommendation? A: Yes, because we are expecting that the hotel will be filled up. Q: In fact, the hotel was fully booked?

A: Yes sir.42 Petitioner would thereby have the Court believe that Col. De Guzmans initial recommendation had been rebuffed due to the hotel being only half-booked; that there had been no urgency to adopt a one-guard-per-floor policy because security had been adequate at that time; and that he actually meant by his statement that "the hotel was not doing well" that the hotel was only halfbooked. We are not convinced. The hotel business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for their guests but also security to the persons and belongings of their guests. The twin duty constitutes the essence of the business.43 Applying by analogy Article 2000,44 Article 200145 and Article 200246of the Civil Code (all of which concerned the hotelkeepers degree of care and responsibility as to the personal effects of their guests), we hold that there is much greater reason to apply the same if not greater degree of care and responsibility when the lives and personal safety of their guests are involved. Otherwise, the hotelkeepers would simply stand idly by as strangers have unrestricted access to all the hotel rooms on the pretense of being visitors of the guests, without being held liable should anything untoward befall the unwary guests. That would be absurd, something that no good law would ever envision. In fine, the Court sees no reversible-error on the part of the CA. WHEREFORE, the Court AFFIRMS the judgment of the Court of Appeals; and ORDERS petitioner to pay the costs of suit. SO ORDERED.

Footnotes Rollo. pp. 58-83: penned by Associate Justice Priscilla J. Baltazar-Padilla, with Associate Justice Fernanda Lampas Peralta and Associate Justice Celia C. Librea-Leagogo concurring. 2 Id. at 109-118. 3 Id. at 60. 4 Also referred to by petitioner as PO3 Carmelito Valiente. 5 Rollo, p. 26 (entitled Re: Death of Christian Harper, dated January 17, 2000, of the Criminal Investigation Division of the Makati Police Station). 6 Id. at 84-89. 7 Id. at 86. 8 Id. at 109-118. 9 Id. at 58-83. 10 Id. at 82-83. 11 Rollo, pp. 64-68 (bold emphasis supplied). 12 Id. at 98. 13 Id. at 100 14 Id. at 101. 15 Id. at 104. 16 Id. at 98-101. 17 Id. at 101 and 103 (Annexes D-2 and D-3). 18 Id. at 100. 19 Id. at 99. 20 Id. at 104.
1

Id. at 103. Id. at 104. 23 G.R. No. 156039, August 14, 2003, 409 SCRA 80. 24 Id., at 94. 25 Rollo, p. 68. 26 Hadji-Sirad v. Civil Service Commission, G.R. No. 182267, August 28, 2009, 597 SCRA 475. 27 Prince Transport, Ind. v. Garcia, G.R. No. 167291, January 12, 2011, 639 SCRA 312, 326. 28 De Guzman v. Sandiganbayan, G.R. No. 103276, April 11, 1996, 256 SCRA 171, 177. 29 Department of Agrarian Reform v. Republic, G.R. No. 160560, July 29, 2005, 465 SCRA 419, 428; Yao v. Court of Appeals, G.R. No. 132428, October 24, 2000, 344 SCRA 202, 221. 30 Angel v. Inopiquez, G.R. No. 66712. January 13, 1989, 69 SCRA 129, 136; Calasiao Farmers Cooperative Marketing Association, Inc. v. Court of Appeals, No. L-50633, August 17, 2981, 106 SCRA 630, 637; Director of Lands v. Romamban, No. L-36948, August 28, 1984, 131 SCRA 431, 438. 31 G.R. No. 106314-15, October 8, 1999, 316 SCRA 338. 32 G.R. No. 118464, December 21, 1998, 300 SCRA 345 33 Rollo, p. 12. 34 Supra, note 31, at pp. 343-344. 35 Id. 36 Heirs of Ignacio Conti v. Court of Appeals, G.R. No. 118464, December 21, 1998, 300 SCRA 345, 356-358. 37 Lambert v. Heirs of Ray Castillon, G.R. No. 160709, February 23, 2005, 452 SCRA 285, 290. 38 Heirs of Carlos Alcaraz v. Republic, G.R. 131667, July 28, 2005, 464 SCRA 280, 289. 39 Cuizon v. Remoto, G.R. No. 143027, March 31, 2006, 486 SCRA 196. 40 TSN, November 26, 2004, p. 23. 41 Rollo, pp. 135-136 (TSN, February 13, 2004, pp. 17-18). 42 Id., at 154-156 (TSN, February 27, 2004, pp. 5-7). 43 YHT Realty Corporation v. Court of Appeals, G.R. No. 126780, February 17, 2005, 451 SCRA 638, 658. 44 Article 2000. The responsibility referred to in the two preceding articles shall include the loss of, or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as strangers; but not that which may proceed from any force majeure. The fact that travellers are constrained to rely on the vigilance of the keeper of the hotels or inns shall be considered in determining the degree of care required of him. 45 Article 2001. The act of a thief or robber, who has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force. (n) 46 Article 2002. The hotel-keeper is not liable for compensation if the loss is due to the acts of the guest, his family, servants or visitors, or if the loss arises from the character of the things brought into the hotel. (n)
21 22

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-55960 November 24, 1988 YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners, vs. AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE COURT OF APPEALS, respondents. Montesa, Albon, & Associates for petitioners. De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.: Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less. Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.] The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding among others that: (1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 4964;] (2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 64- 65.] held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.] On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE and a new judgment rendered as follows: (1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried woman with whom he lived as husband and wife without benefit of marriage for many years: (2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to be valid to the laws of the Chinese People's Republic of China (sic); (3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply to be valid and accordingly, said property should be excluded from the estate of the deceased Sy Kiat; and (4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.] From said decision both parties moved for partial reconsideration, which was however denied by respondent court. They thus interposed their respective appeals to this Court. Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No. 56045. ** The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the Court in a resolution dated

September 16, 1981 reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the following as errors: I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA. II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.] I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was conclusively proven. To buttress this argument they rely on the following testimonial and documentary evidence. First, the testimony of Yao Kee summarized by the trial court as follows: Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that she does not have a marriage certificate because the practice during that time was for elders to agree upon the betrothal of their children, and in her case, her elder brother was the one who contracted or entered into [an] agreement with the parents of her husband; that the agreement was that she and Sy Mat would be married, the wedding date was set, and invitations were sent out; that the said agreement was complied with; that she has five children with Sy Kiat, but two of them died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was born on November 7, 1939; that she and her husband, Sy Mat, have been living in FooKien, China before he went to the Philippines on several occasions; that the practice during the time of her marriage was a written document [is exchanged] just between the parents of the bride and the parents of the groom, or any elder for that matter; that in China, the custom is that there is a go- between, a sort of marriage broker who is known to both parties who would talk to the parents of the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son in-law, then they agree on a date as an engagement day; that on engagement day, the parents of the groom would bring some pieces of jewelry to the parents of the bride-tobe, and then one month after that, a date would be set for the wedding, which in her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the wedding the bridegroom brings with him a couch (sic) where the bride would ride and on that same day, the parents of the bride would give the dowry for her daughter and then the document would be signed by the parties but there is no solemnizing officer as is known in the Philippines; that during the wedding day, the document is signed only by the parents of the bridegroom as well as by the parents of the bride; that the parties themselves do not sign the document; that the bride would then be placed in a carriage where she would be brought to the

town of the bridegroom and before departure the bride would be covered with a sort of a veil; that upon reaching the town of the bridegroom, the bridegroom takes away the veil; that during her wedding to Sy Kiat (according to said Chinese custom), there were many persons present; that after Sy Kiat opened the door of the carriage, two old ladies helped her go down the carriage and brought her inside the house of Sy Mat; that during her wedding, Sy Chick, the eldest brother of Sy Kiat, signed the document with her mother; that as to the whereabouts of that document, she and Sy Mat were married for 46 years already and the document was left in China and she doubt if that document can still be found now; that it was left in the possession of Sy Kiat's family; that right now, she does not know the whereabouts of that document because of the lapse of many years and because they left it in a certain place and it was already eaten by the termites; that after her wedding with Sy Kiat, they lived immediately together as husband and wife, and from then on, they lived together; that Sy Kiat went to the Philippines sometime in March or April in the same year they were married; that she went to the Philippines in 1970, and then came back to China; that again she went back to the Philippines and lived with Sy Mat as husband and wife; that she begot her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI decision, pp. 13-15; Rollo, pp. 50-52.] Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is issued by the Chinese government, a document signed by the parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp. 52-53.] Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.] Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the following entries are found: "Marital statusMarried"; "If married give name of spousesYao Kee"; "Address-China; "Date of marriage1931"; and "Place of marriageChina" [Exhibit "SS-1".] Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following entries are likewise found: "Civil statusMarried"; and, 'If married, state name and address of spouseYao Kee Chingkang, China" [Exhibit "4".] And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's Republic of China to the effect that "according to the information available at the Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom. Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes ", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree, should be required of a foreign custom. The law on foreign marriages is provided by Article 71 of the Civil Code which states that: Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country, except bigamous, Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis supplied.) *** Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).] In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign law, Rule 130 section 45 states that: SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts. Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus: SEC. 25. Proof of public or official record.An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).] In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they are self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).] This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).] Moreover a reading of said case would show that the party alleging the foreign marriage presented a witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting parties constitute the essential requisite for a marriage to be considered duly solemnized in China. Based on his testimony, which as found by the Court is uniformly corroborated by authors on the subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.] Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the law of China on marriage in the aforecited case, petitioners however have not shown any proof that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years later. Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds true in this case. The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign marriage and the issue posed was whether or not the oral testimony of a spouse is competent evidence to prove the fact of marriage in a complaint for adultery. Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA

552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.] II. The second issue raised by petitioners concerns the status of private respondents. Respondent court found the following evidence of petitioners' filiation: (1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give number of childrenFour"; and, "NameAll living in China" [Exhibit "SS-1";] (2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977, pp. 9-11;] and, (3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil Registrar of Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".] Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and one adopted son [TSN, December 6,1977, pp. 87-88.] However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws of China, they cannot be accorded the status of legitimate children but only that of acknowledged natural children. Petitioners are natural children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil Code.] Private respondents on the other hand are also the deceased's acknowledged natural children with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of marriage. They have in their favor their father's acknowledgment, evidenced by a compromise agreement entered into by and between their parents and approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego but likewise made provisions for their support and future inheritance, thus: xxx xxx xxx 2. The parties also acknowledge that they are common-law husband and wife and that out of such relationship, which they have likewise decided to definitely and finally terminate

effective immediately, they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born on May 7, 1958. 3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties mutually agree and covenant that (a) The stocks and merchandize and the furniture and equipments ..., shall be divided into two equal shares between, and distributed to, Sy Kiat who shall own one-half of the total and the other half to Asuncion Gillego who shall transfer the same to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy. (b) the business name and premises ... shall be retained by Sy Kiat. However, it shall be his obligation to give to the aforenamed children an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the rental of the two doors of the same building now occupied by Everett Construction. xxx xxx xxx (5) With respect to the acquisition, during the existence of the common-law husband-and-wife relationship between the parties, of the real estates and properties registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually agree and covenant that the said real estates and properties shall be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ... [Exhibit "D".] (Emphasis supplied.) xxx xxx xxx This compromise agreement constitutes a statement before a court of record by which a child may be voluntarily acknowledged [See Art. 278, Civil Code.] Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations Court. Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to the Juvenile and Domestic Relations Court: SEC. 91-A. Creation and Jurisdiction of the Court. xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original jurisdiction to hear and decide the following cases: xxx xxx xxx (2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and acknowledgment; (3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and actions for support; (4) Proceedings brought under the provisions of title six and title seven, chapters one to three of the civil code; xxx xxx xxx and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.] With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to pass upon the issue of jurisdiction raised by petitioners. Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last paragraph that: xxx xxx xxx If any question involving any of the above matters should arise as an incident in any case pending in the ordinary court, said incident shall be determined in the main case. xxx xxx xxx As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]: xxx xxx xxx It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving paternity and acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an administration proceeding is pending or existing and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

xxx xxx xxx The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes * The petition for review in G.R. No. 56045 was denied for lack of merit on March 9, 1981, Counsel for the petitioners then filed a Motion for Consolidation and for Extension of Time to File Motion for Reconsideration which was granted on July 8, 1981. On February 17, 1982, however, petitioners' motion for reconsideration of the resolution of March 9, 1981 was denied. ** Other than the exceptions contained in this article, this provision of law is derived from Section 19, Act No. 3613 and Section IV, General Order No. 68. *** The presumption that, in the absence of proof, the foreign law is the same as the law of the forum, is known as processual presumption which has been applied by this Court in the cases of Lim v. The Insular Collector of Customs, 36 Phil, 472 (1917); International Harvester Co. in Russia v. Hamburg-American Line, 42 Phil. 845 (1918); Miciano v. Brimo, 60 Phil, 867 (1924); and Rayray v. Chae Kyung Lee, G.R. No. L-18176, October 26, 1966,18 SCRA 450. **** Rep. Act 4834 created the Juvenile and Domestic Relations Court of Iloilo. Section 1 of said Act is the exact copy of section 19-A of Rep. Act 5502.

FIRST DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner, G.R. No. 154380

Present: Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ. Promulgated: October 5, 2005 x --------------------------------------------------x DECISION QUISUMBING, J.:

- versus -

CIPRIANO ORBECIDO III, Respondent.

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6] For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.[7] At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that

the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8] This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1.

The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

2.

Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them

becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.[12] If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. 2. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.[13] Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.[15] Furthermore, respondent must also show that the divorce

decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.
Rollo, pp. 20-22. Id. at 27-29. [3] Id. at 21-22. [4] Id. at 105. [5] Id. at 106-110. [6] Id. at 110. [7] Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. [8] Office of the Ombudsman v. Ibay, G.R. No. 137538, 3 September 2001, 364 SCRA 281, 286, citing Galarosa v. Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA 729, 737.
[1] [2]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3605 April 21, 1952

TESTATE ESTATE OF THE LATE BALDOMERO J. LESACA. CONSUELO F. LESACA AND JUANA F. LESACA,executrices-appellants, vs. JUANA FELIX VDA. DE LESACA, claimant-appellee. Mariano H. de Joya and Jose V. Lesaca for executrices-appellants. Marcelino Lontok for minors-appellants. REYES, J.: There are three appeals registered in this case all of which have been certified to this Court by the Court of Appeals for the reason that, in its opinion and as admitted by the parties, they involve only questions of law. Those questions are formulated in the certification of the Court of Appeals as follows: 1. Whether money received after marriage, as purchase price of land sold a retrovendado before such marriage to one of the consorts, constitutes conjugal property or not; 2. Whether allowances for support granted by the court to the minor heirs should or should not be subject to collation and deducted from their respective hereditary portions; and 3. Whether a standing crop of palay planted during coverture, and harvested after the death of the one of the consorts, constitutes fruits and income within the purview of Article 1401 of the Civil Code, and one-half of such crop should be delivered to the surviving spouse. Appeal No. 1 Baldomaro J. Lesaca died in the City of Manila on November 8, 1946. He was survived by his second wife (Juana Felix), two minor children by the latter, two children by his marriage, and three acknowledged natural children by a third woman. In his will he named Juana F. Lesaca and Consuelo F. Lesaca, his children by his first marriage, co-executrices. Proceedings for the probate of the will and for the administration of the estate of the deceased having been instituted in the Court of First Instance of Manila, that court, at the instance of the widow but over the opposition of the co-executrices and the three acknowledge natural children, granted each of the two minor children a monthly allowance of P100 for the living expenses, "plus an extra sum of P300 for their matriculation and uniforms," and later ordered the co-executrices to deposit in court all the allowances in arrears. The co-executrices refused to make the deposit, contending that if any amount were to be paid for the support and education

of the minors the same should be charged against their share of the inheritance. But the court took a different view and issued an order, dated March 11, 1949, holding that the amounts it had authorized to be paid to the minors should be considered allowances for support, to be deducted from hereditary portion only insofar as they exceed what they are entitled to as fruits or income, and requiring the co-executrices to deposit in court " all the amounts due the said minors, namely P2,955.83, if and when the financial condition of this estate under administration so warrants." This is the order involved in the first appeal and the question presented is whether the allowances for support granted by the court to legitimate minor children of the deceased pending liquidation of his estate are subject to collation and deductible from their share of the inheritance. Obviously, the answer should be the affirmative in view of Article 1430 of the Civil Code of 1898 (re-enacted as Article 188 of the new Civil Code) which provides that "the surviving spouse and his or her children shall be given an allowance for their support out of the general estate, pending the liquidation of the inventoried estate, and until their share has been delivered to them, but it shall be deducted from their portion insofar as it exceeds what they may have been entitled to as fruits or income." Counsel for the appellant minors, however, contends that Art. 1430 should be harmonized with Art. 1041, which provides that "allowances for support, education, attendance and illness, even though unusually expensive, apprenticeship, ordinary equipment, or customary presents are not subject to collation," because the allowances mentioned in the later article refer to no other than the allowances for support given to the children of a deceased person. This contention is without merit. Article 1041 is found under the section on "Collation," which refers only to property or rights received by donation or gratuitous title "during the lifetime of the decedent." (Civil Law by Padilla, Vol. I, p. 1125), and is based on the philosophy that such donations in no way impoverish the donor or in reach the donee since ordinarily they are not taken from the capital but rather from the fruits thereof which would anyway have been consumed or spent during the life of the donor and therefor would form no part of his inheritance. (7 Manresa, 5th ed., p. 625.) But allowances given to the heirs pending the liquidation of the estate of the decedent stand on a different footing. As Manresa observes: Despues de la muerte del cuasante todo varia: los frutos del capital se agrarian a este, formando parte del mismo, y por esto se deben a la herencia, ya provengan de las cosas donadas sujetas a colacion, o de derechos de disfrute, ya constituyesen el objeto mismo de la liberalidad, como en case de renta o pension, cesion de productos o frutos, perdon de intereses, etc. (7 Manresa 5th ed. p. 576.) Appeal No. 2 This appeal is taken by the co-executrices from another order of March 11, 1949, declaring that the sum of P2,500 received by them as repurchase price of land bought by the deceased before the marriage is conjugal property and directing that one-half of said sum be paid to the widow. It appears that the deceased and his widow, Juana Felix, had lived together maritally since 1924 but were not married until December 18, 1945; that is, less than a year before his death; that in 1930 Ramon Garcia conveyed to the deceased three parcels of land for P2,500 under a pacto de

retro sale; and that on September 25, 1947 the co-executrices, with the approval of the court, reconveyed the said parcels of land to Ramon Garcia for the same sum of P2,500. Claiming that this sum was conjugal property the widow petitioned the court to order the co-executrices to give her one-half thereof. The co-executrices opposed the petition, claiming that the money paid to Ramon Garcia for the land in question came from the products of the property left by their mother. But after hearing, the court granted the petition in an order dated March 11, 1949, holding that the sum in dispute was conjugal property, "considering that the reconveyance was affected after the marriage." This order is the subject of appeal No. 2, which presents the first of the three questions stated in the beginning, to wit: Whether money received after marriage, as purchase price of land sold a retrovendendo before such marriage to one of the consorts, constitutes conjugal property or not. In our opinion the question calls for a negative answer. According to the briefs Garcia sold the land for P2,500 to Lesaca before the latter's marriage to Juana Felix and repurchased it to for the same amount after said marriage. If the money paid by Lesaca was his own exclusively, surely the mere fact that it was returned or repaid after marriage cannot convert it to conjugal property. It is true that under Art. 1401 of the Civil Code of 1889 property obtained by the industry, wages or work of the spouses or of either of them belongs to the conjugal partnership. But the article refers to the property obtained during the marriage, and while counsel for the widow cites the case of Marata vs. Dionio (G.R. No. 24449, unreported) wherein this Court held that though there is no technical marital partnership between person living maritally without being lawfully married, nevertheless there is between them an informal civil partnership which would entitle the parties to an equal interest in property acquired by their joint efforts, in the present case there is no showing that the sum paid to Garcia was earned by the joint efforts of the deceased and his widow. In the absence of such proof the sum must be deemed to have been the property of the deceased to whom the land for which it was given in payment was sold by Garcia. It follows that the order below adjudging one-half of the sum in question to the widow is erroneous. But the claim that the sum in question belongs to the co-executrices as an inheritance from their deceased mother has not been upheld by the trial court, and as a question of fact cannot be urged in this appeal, which, with the conformity of the parties, has been submitted to this Court as involving questions purely of law. Moreover, as stated in the resolution of the Court of Appeals, dated October 28, 1949, the Clerk of Court of First Instance certifies that no evidence has been submitted or taken in connection with the motions that gave rise to the present appeals. Appeal No. 3 This is an appeal from the order of April 29, 1949, which declares that the 1,040 cavans of palay of the value of P20,800 received as rent on decedent's land for the agricultural year 1946-1947 should be considered conjugal property so that one-half thereof should go to the widow. It is admitted that the deceased did not cultivate his land personally but had it cultivated by one who gave him a certain percentage of the crop every year by way of rent, and the lower court

found that the 1,040 cavans of palay in dispute was the rent or the decedent's share of the harvest from palay planted in June or July 1946 that is, after his marriage to Juana Felix and which must have already matured or been near maturity at the time when the conjugal partnership was dissolved by the death of the deceased in November, 1946. Under Article 1380 of the old Civil Code "after the marriage has been dissolved, the uncollected fruits or rents shall be divided pro ratabetween the surviving spouse and the heirs of the deceased in accordance of the rules which govern in case of termination of usufruct," the conjugal partnership being considered usufructuary of the private property of each spouse. As rents are civil fruits (Art. 355, old Civil Code) they must be deemed to accrue from day to day and belong to the usufructuary (in this case the conjugal partnership) in proportion to the time the usufruct may last. (Art. 474, old Civil Code.) We gather from the findings of the trial court that the decedent's participation (as rent) in the palay planted by the lessee in June or July and which must have been harvested on the following November, if not before, accrued during coverture. Such being the case it should belong to the conjugal partnership. It is immaterial that the rent was actually received after the dissolution of the marriage through the death of one of the spouses. It is the date of accrual that is important. As Manresa says: Los frutos civiles se entiende devangados dia por dia; la regla en ellos no pueden ser mas sencilla. Importa poco la epoca en que se realice el pago. Si se percibieron adelantados, el conyuge propietario debe ala sociedad cuanto a esta correspanda, o sea, los devengados desde el de la celebracion del matrimonio. Si las rentas, interes, productos o utiladades se perciben o cobran despues, la sociedad debe al propietario la perte proporcional correspondiente hasta el dia de la union. (9 Manresa, 5th ed., 508.) . . . En lo relativo al usufracto, esa regla se contiene en el art. 474: los futos civiles se entienden percibidos dia por dia y pertenecen al usufructuario en proporcion al tiempo que dure el usufructo. (4 Manresa, 5th ed., 346-347.) To the same effect is the following comment on the corresponding provision of the french civil code: 3.. El modo de adquisicion de los frutos por la comunidad difiere segun de trato de frutos naturales o civiles; los primeros se adquiren po su percepcion, los segundos dia a lia. La distribucion de los frutos civelies por tanto debera hacerse sin tomar en consideracion el momento en que hayan sido efectivamente percibidos ni aun, si se trata de alqueleres de fincas rusticas o urbanas el momento enque han vencido: solo hay que atenerse a la epoca a que corresponde. xxx xxx xxx

Asi, frecuentemente ocurre que los alquileres solamente son pagaderos el ano siguinte al de la cosecha y aveces en various plazos. Es indudable que, si la communidad queda disuelta antes del vencimiento, tendra derecho a la totalidad o aparte del alquiler de la finca, en proporcion al tiempo que acquella existio en el ano dela cosecha. Asimismo, si los alquileres han sido percibidos por anticipado, antes del matrimonio, la communidad

tiene derecho a una compensacion si esos alquileres son correspondientes a una epoca posterior al matrimonio: infra, titulo III, comunidad de gananciales. Contra Req., mayo 27, 1879, D. I. 297, s. 80, 1, 393." (Planiol and Ripert, Tratado Practico de Derecho Civil Frances, vol. 8 p.306 [Spanish translation by Diaz Cruz]). It follows from the foregoing that the order appealed from is in accordance with the law and should therefore be affirmed. Wherefore, it is the decision of this Court that (1) The order of March 11, 1949, declaring that the allowances granted the minors pending liquidation of the estate should be deducted form their hereditary shares in so far as they exceed what they may be entitled to as fruits or income, is affirmed; (2) The other order of March 11, 1949, declaring the sum of P2,500 received by the co-executrices from Ramon Garcia as repurchase price of the three parcels of land resold to the latters is conjugal property and that the widow is entitled to one-half thereof is reversed and the said sum is declared to be part of the estate of the deceased; (3) The order of April 28, 1949, declaring that the decedents share of standing crop of palay planted during the coverture and harvested after the dissolution of the marriage are fruits and income within the purview of Article 1401 of the Civil Code and, therefore, should be considered conjugal property, of which one-half should be delivered to Juana F. Vda. de Lesaca, is affirmed. Without pronouncement as to costs. Paras, C.J., Feria, Bengzon, Tuason, Montemayor and Bautista Angelo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26462 June 9, 1969

TERESITA C. YAPTINCHAY, petitioner, vs. HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY, in her own behalf and in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y. Yaptinchay and JESUS MONZON, MARY YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY, ASUNCION YAPTINCHAY, JOSEFINA Y. YAPTINCHAY, ROSA Y. MONZON, ISABEL Y. VALERIANO, REMEDIOS Y. YAPTINCHAY, FELICIDAD Y. ARGUELLES, MARY DOE and JOHN DOE, respondents. V. E. del Rosario and Associates for petitioner. Sycip, Salazar, Luna, Manalo and Feliciano for respondents. SANCHEZ, J.: The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory powers should stake down as having been issued in excess of jurisdiction or with grave abuse of discretion, the respondent judge's order of June 15, 1966 in Civil Case 8873 (Court of First Instance of Rizal) directing petitioner to deliver to Special Administratrix Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay the North Forbes Park property hereinafter described, and to refrain from disturbing or interfering in any manner whatsoever with the latter's possession thereof, such order having been amended by said respondent judge's subsequent order of June, 28, 1966 in turn enjoining defendants in said case (private respondents herein) and/or their duly authorized agents or representatives from selling, disposing, or otherwise encumbering said property in any manner whatsoever pending the termination of said case. We granted the writ of preliminary mandatory injunction prayed for and directed respondents to return the possession of the North Forbes Park property to petitioner upon a P50,000-bond. The controlling facts are the following: On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch, her appointment first as Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who died in Hongkong on July 7, 1965. This is known in the record as Special Proceedings 1944-P. Petitioner there alleged that the deceased Isidro Y. Yaptinchay had lived with her continuously, openly and publicly as husband and wife for nineteen (19) years: from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel Avenue, Pasay City; that the deceased who died without a will left an estate consisting of personal and real properties situated in the Philippines, Hongkong

and other places with an estimated value of about P500,000; that to petitioner's knowledge and information, the deceased left three daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion Yaptinchay, all of age; that on July 7, 8 and 11, 1965, certain parties carted away from the residences aforesaid personal properties belonging to the deceased together with others exclusively owned by petitioner. It was averred that in these circumstances the appointment of a special administrator to take custody and care of the interests of the deceased pending appointment of a regular administrator became an urgent necessity. Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C. Yaptinchay special administratrix of the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond. To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate wife, and Ernesto Y. Yaptinchay and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said Teresita C. Yaptinchay, not being an heir of the decedent, had no right to institute the proceeding for the settlement of the latter's estate, much less to procure appointment as administratrix thereof; and that having admittedly cohabited with the deceased for a number of years said petitioner was not qualified to serve as administratrix for want of integrity. At the same time, oppositors counter-petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the deceased, as special administratrix and of Josefina Y. Yaptinchay, the alleged surviving spouse, as regular administratrix. To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965 appointing petitioner Teresita C. Yaptinchay special administratrix. On July 30, 1965, after the parties were heard, the probate court granted counterpetitioners' prayer and named Virginia Y. Yaptinchay special administratrix upon a P50,000bond.1awphil.nt On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the deceased Isidro Y. Yaptinchay. Included amongst these was "[a] bungalow residential house with swimming pool, situated at Park corner Talisay Road, North Forbes Park, Makati, Rizal" adverted to at the start of this opinion. It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita C. Yaptinchay made her second move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig Branch) of the Court of First Instance of Rizal an action for replevin and for liquidation of the partnership supposedly formed during the period of her cohabitation with Isidro Y. Yaptinchay and for damages. This case was docketed as Civil Case 8873. 1 Pending hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed for, respondent judge Guillermo E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein (private respondents here) and their agents from disposing any of the properties listed in the complaint and from interfering with plaintiff's (herein petitioner's) rights to, and possession over, amongst others, "the house now standing at North Forbes Park, Makati, Rizal."

On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of replevin and preliminary injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of the estate of the deceased Isidro Y. Yaptinchay was already vested in the Court of First Instance of Rizal, Pasay City Branch in the special proceedings heretofore mentioned (Special Proceedings No. 1944-P); (2) that the present liquidation case was filed to oust said probate court of jurisdiction over the properties enumerated in this, the second case (Civil Case 8873); and (3) that plaintiff was not entitled to the remedy of injunction prayed for, her alleged right sought to be protected thereby being doubtful and still in dispute. Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to direct plaintiff (petitioner here) and all others in her behalf to cease and desist from disturbing in any manner whatsoever defendant Virginia Y. Yaptinchay's possession amongst others of the North Forbes Park house and to order the removal from the premises of said North Forbes Park house of the guards, agents and employees installed therein by plaintiff; to enjoin plaintiff and her agents from entering the aforesaid house and any other real property registered in the name of Isidro Y. Yaptinchay and from interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and powers of administration over the assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at the time of his death. Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which reads: "From the pleadings as well as the evidence already submitted and representations made to the court during the arguments, it appears that one of the properties in dispute is the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death of the deceased Isidro Y. Yaptinchay was still under construction and it also appears that after his death said property was among the properties of the deceased placed under the administration of the special administratrix, the defendant Virginia Y. Yaptinchay. Information has been given that in the evening of August 14, 1965, the plaintiff was able to dispossess the special administratrix from the premises in question and that since then she had been in custody of said house. While the Court is still considering the merits of the application and counterapplication for provisional relief, the Court believes that for the protection of the properties and considering the Forbes Park property is really under the responsibility of defendant Virginia Y. Yaptinchay, by virtue of her being appointed Special Administratrix of the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the issuance of a writ of preliminary injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by this Court is lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner whatsoever the defendant Virginia Y. Yaptinchay in the possession of said property. WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is requiring the plaintiff, her representatives and agents or other persons acting in her behalf to deliver the possession of the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal to the Special

Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing interfering in any manner whatsoever defendant's possession thereof. Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites: Considering that the present case treats principally with the liquidation of an alleged partnership between the plaintiff and the deceased Isidro Yaptinchay and considering further that said house in North Forbes Park is included among the properties in dispute, the Court hereby clarifies its Order of June 15, 1966 by enjoining the defendants and/or their duly authorized agents or representatives from selling, disposing or otherwise encumbering said property in any manner whatsoever pending the termination of this case. Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966, which recites that: Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said properties which were formerly held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her appointment and under her authority, as Special Administratrix of the estate of the deceased Isidro Yaptinchay, the plaintiff's Motion for Reconsideration is hereby denied.2 The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court. 1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro Yaptinchay, grave abuse of discretion attended respondent judge's order issuing an injunctive writ transferring possession of said property to respondent Virginia Y. Yaptinchay. A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of taking property out of possession and/or control of a party and placing it in that of another whose title thereto has not been clearly established. 3 With this as guidepost, petitioner would have been correct if she were lawfully in possession of the house in controversy when Civil Case 8873 (where the injunctive writ was issued) was commenced in the Pasig court, and if respondent special administratrix, to whom the possession thereof was transferred, were without right thereto. But the situation here is not as petitioner pictures it to be. It is beyond debate that with the institution on July 13, 1965 of Special Proceedings 1944-P, properties belonging not only to the deceased Isidro Y. Yaptinchay but also to the conjugal partnership of said deceased and his legitimate wife, Josefina Y. Yaptinchay, 4 were brought under the jurisdiction of the probate court, properly to be placed under administration. 5 One such property is the lot at North Forbes Park. 6 With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court, petitioner avers "that the construction of said North Forbes Park property was undertaken jointly by petitioner and the deceased, petitioner even contributing her own exclusive funds therefor." 7 This is a reproduction of an allegation in petitioner's June 27,

1966 alternative motion for reconsideration or for clarification/amendment of the herein controverted order of June 15, 1966 in Civil Case 8873. 8 And again, in the affidavit of Teresita C. Yaptinchay dated August 3, 1965, she spoke of the acquisition of properties, real and personal, in her own words, "through our joint efforts and capital, among which properties are those situated" in "North Forbes Park." 9 All of which contradict her averment in the amended complaint dated October 25, 1965 also verified in said Case 8873 to the effect that she "acquired through her own personal funds and efforts real properties such as ... the house now standing at North Forbes Park, Makati, Rizal." 10 But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house. They maintain that the construction of that house was undertaken by the deceased Isidro Y. Yaptinchay without her (petitioner's) intervention and the deceased paid with his own personal funds all expenses incurred in connection with the construction thereof. 11 It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y. Yaptinchay the Forbes Park house "was among the properties of the deceased placed under the administration of" respondent Virginia Y. Yaptinchay, that respondent judge issued the injunction order of June 15, 1966 herein complained of. Worth repeating at this point is that respondent judge, in his order of August 8, 1966, declared that defendants (private respondents herein), "principally Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of the North Forbes Park house "by virtue of her appointment and under her authority, as Special Administratrix." On this score, petitioner herein is not entitled to the injunction she prayed for below. 2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in the exercise of which appellate courts will not interfere except in a clear case of abuse. 12 A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the disputed order of June 15, 1966 with the vice of grave abuse of discretion. It is quite true that, in support of the allegation that the house in North Forbes Park was her exclusive property, petitioner presented proof in the form of loans that she had contracted during the period when said house was under construction. But evidence is wanting which would correlate such loans to the construction work. On the contrary, there is much to the documentary proof presented by petitioner which would tend to indicate that the loans she obtained from the Republic Bank were for purposes other than the construction of the North Forbes Park home. And this, we gather from pages 17 to 18 of petitioner's memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A thereof, which states in its paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account" and that the proceeds thereof "were also used by affiant both for her business and for the construction, completion and furnishing of the said house at North Forbes Park", and which cites her seven promissory notes in favor of Republic Bank, Appendices 1 to 7 of said affidavit. Not one of the promissory notes mentioned reveals use of the proceeds for the construction of the North Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000 which says that the purpose of the loan for "Fishpond development"; Appendix 3 for

P100,000 for the same purpose; Appendix 5 for P50,000, "To augment working capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For Agricultural Development". In plain terms, the fact alone of petitioner's indebtedness to the Republic Bank does not establish that said house was built with her own funds. It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive property may not be permitted to override the prima facie presumption that house, having been constructed on the lot of Isidro Y. Yaptinchay (or of the conjugal partnership) at his instance, and during the existence of his marriage with respondent Josefina Y. Yaptinchay, is part of the estate that should be under the control of the special administratrix. 3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be decisive. Said Article 144 says that: "When man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership." . But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by conditions, the existence of which must first be shown before rights provided thereunder may be deemed to accrue. 13 One such condition is that there must be a clear showing that the petitioner had, during cohabitation, really contributed to the acquisition of the property involved. Until such right to co-ownership is duly established, petitioner's interests in the property in controversy cannot be considered the "present right" or title that would make available the protection or aid afforded by a writ of injunction. 14 For, the existence of a clear positive right especially calling for judicial protection is wanting. Injunction indeed, is not to protect contingent or future rights; 15 nor is it a remedy to enforce an abstract right. 16 At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North Forbes Park property be in the hands of the bonded administratrix in the estate proceedings. For then, her acts would be subject to the control of the probate court. Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the writ of preliminary mandatory injunction 17 issued by this Court is hereby dissolved and set aside. Costs against petitioner. So ordered. Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistrano, JJ., concur. Makalintal, Teehankee and Barredo, JJ., took no part. Concepcion, C.J., and Castro, J., are on leave.
Footnotes
1Entitled

"Teresita C. Yaptinchay, Plaintiff, versus Virginia Y. Yaptinchay, in her own behalf and in her capacity as Special Administratrix in the Inestate Estate of the deceased Isidro Y. Yaptinchay; and Jesus Monzon, Mary Yaptinchay Eligir, Antonio Yaptinchay, Ernesto Yaptinchay, Asuncion Yaptinchay, Josefina Y. Yaptinchay, Rosa Y. Monson, Isabel Y. Valeriano, Remedios Y.

Yaptinchay, Felicidad Y. Arguelles, Mary Doe and John Doe, Defendants." This complaint was amended on October 25, 1965 to include a claim over some other properties. 2Emphasis supplied. 3Devesa vs Arbes, 13 Phil. 273, 278; Evangelista vs. Pedreos, 27 Phil. 648, 650-651; Asombra vs. Dorado, 36 Phil. 883, 885-886; Kabankalan Sugar Co. vs. Rubin, 54 Phil. 645, 654; Rodulfa vs. Alfonso, 76 Phil. 225, 231; Calo vs. Roldan, 76 Phil. 445, 452; Iman Sahim vs. Montejo (June 29, 1963), 8 SCRA 333, 335; Emilia vs. Bado (April 25, 1968), 23 SCRA 183, 188-190. 4See Certificado de Matrimonio dated September 6, 1920; Annex 1 of the Answer herein filed by respondents. 5Picardal vs. Lladas (December 29, 1967), 21 SCRA 1483, 1491, citing Roxas vs. Pecson, 82 Phil. 407 and Fernandez vs. Maravilla, L18799, March 31, 1964. 6 In a pleading filed in Special Proceedings 1944-P, petitioner herself alleged that this Forbes Park lot was acquired by her and the deceased during the period of their cohabitation (Rollo, p. 155), although she also states that title thereto is in the name of one Jose (or Erlinda) Oledan (Rollo, p. 15). 7Emphasis supplied. 8See Rollo, pp. 16, 79. 9Rollo, p. 160; emphasis supplied. 10See Rollo, pp. 26, 31. 11See Verified Opposition, Motion to Dismiss, and Counter Petition for Issuance of Preliminary Injunction dated August 25, 1965 filed by defendants in Civil Case 8873. Rollo, pp. 38-67. 12Rodulfa vs. Alfonso, supra, at p. 232; Gregorio vs. Mencias (September 29, 1962), 6 SCRA 114, 119. 13 See Lesaca vs. Lesaca, 91 Phil. 135, 140; Aznar vs. Garcia, 102 Phil. 1055, 1068. 14Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc. (July 26, 1966), 17 SCRA 731, 736-737; Angela Estate, Inc. vs. CFI of Negros Occidental (July 31, 1968), 24 SCRA 500, 509. 15Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc., supra, at p. 736. 16Id. at p. 737; North Negros Sugar Co. vs. Hidalgo, 63 Phil. 664, 671. 17Rollo, pp. 176-177.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 85140 May 17, 1990 TOMAS EUGENIO, SR., petitioner, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA VARGAS-BENTULAN, respondents. G.R. No. 86470 May 17, 1990. TOMAS EUGENIO, petitioner-appellant, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGASDE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees. Maximo G. Rodriguez for petitioner. Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.: On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order. The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpus before the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio. The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner, he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he (petitioner) is the Supreme President and Founder. Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August 1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy. Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all cases of illegal confinement or detention of a live person. Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of the habeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for resolution on 21 October 1988. In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and examined by a duly authorized government pathologist. 4 Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that:

It should be noted from the original petition, to the first amended petition, up to the second amended petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then this Court is being prayed to declare the petitioners as the persons entitled to the custody, interment and/or burial of the body of said deceased. The Court, considering the circumstance that Vitaliana Vargas was already dead on August 28, 1988 but only revealed to the Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction over the nature and subject matter of this case because it may entertain this case thru the allegations in the body of the petition on the determination as to who is entitled to the custody of the dead body of the late Vitaliana Vargas as well as the burial or interment thereof, for the reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows: Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; xxx xxx xxx (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions: xxx xxx xxx it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129. Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17 January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action for custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the Court first dismissing the original petition for habeas corpus. Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of Rule 135 of the Rules of Court 8 Articles 305 and 308 in relation to Article 294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the decision stated:

. . . . By a mere reading of the petition the court observed that the allegations in the original petition as well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty and if she were dead then relief was prayed for the custody and burial of said dead person. The amendments to the petition were but elaborations but the ultimate facts remained the same, hence, this court strongly finds that this court has ample jurisdiction to entertain and sit on this case as an action for custody and burial of the dead body because the body of the petition controls and is binding and since this case was raffled to this court to the exclusion of all other courts, it is the primary duty of this court to decide and dispose of this case. . . . . 10 Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body, (for purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the award. Since there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who was merely a common law spouse, the latter being himself legally married to another woman. 11 On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically Identical to those raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the issuance of an injunction to maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without further pleadings. Between the two (2) consolidated petitions, the following issues are raised: 1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of the dead body of a 25 year old female, single, whose nearest surviving claimants are full blood brothers and sisters and a common law husband. 2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for custody/possession/authority to bury the deceased/recovery of the dead. 3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family Code) which states: Art. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) From the spouse;

xxx xxx xxx Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or petition; but the allegations therein determine the nature of the action, and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. 13 When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfimetory operation on the filing of the petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the petition complies with the legal requirements and its averments make a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in the petition. 15 In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother to obtain custody of a minor sister, stating: All these circumstances notwithstanding, we believe that the case should not have been dismissed. The court below should not have overlooked that by dismissing the petition, it was virtually sanctioning the continuance of an adulterous and scandalous relation between the minor and her married employer, respondent Benildo Nunez against all principles of law and morality. It is no excuse that the minor has expressed preference for remaining with said respondent, because the minor may not chose to continue an illicit relation that morals and law repudiate. xxx xxx xxx The minor's welfare being the paramount consideration, the court below should not allow the technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving the child full protection. Even in a habeas corpus proceeding the court had power to award temporary custody to the petitioner herein, or some other suitable person, after summoning and hearing all parties concerned. What matters is that the immoral situation disclosed by the records be not allowed to continue. 17 After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and should be liberally

allowed in furtherance of justice in order that every case may so far as possible be determined on its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo had to resolve. Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally mauled in common law jurisdictions but not in the Philippines.19 While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and that they produce a community of properties and interests which is governed by law, 20 authority exists in case law to the effect that such form of co-ownership requires that the man and woman living together must not in any way be incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted however that with respect to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)." There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or caused mutually by spouses. The Penal Code article, it is said, makes no distinction between a couple whose cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de facto. 23 But this view cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly providing to the contrary as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime. Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the Vargases). Section 1103 of the Revised Administrative Code provides: Sec. 1103. Persons charged with duty of burial. The immediate duty of burying the body of a deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons hereinbelow specified: xxx xxx xxx

(b) If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within the Philippines and in possession of sufficient means to defray the necessary expenses. WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Gancayco and Grino-Aquino, JJ., are on leave.
Footnotes * Hon. Alejandro Velez, presiding. 1 Rule 16 (Motion to Dismiss): Sec. 1. Grounds. Within the time for pleading a motion to dismiss the action may be made on any of the following grounds: (a) . . . (b) That the court has no jurisdiction over the nature of the action or suit; Rule 72 (Subject Matter and Applicability of General Rules) xxx xxx xxx Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. 2 3 and 11 October 1988 orders, Record of Regional Trial Court Proceedings, pp. 74, 75 & 102. 3 Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 308. No human remains shall be retained, interred disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305. 4 Record of RTC Proceedings, pp. 296-297. 5 Ibid., p. 338. 6 Record of RTC Proceedings, p. 577. 7 Supra. 8 Sec. 5 Inherent power of courts; Sec. 6 means to carry jurisdiction into effect. 9 Sec. 1104. Right of custody to body Any person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it, except when an inquest is required by law for the purpose of determining the cause of death; and, in case of death due to or accompanied by a dangerous communicable disease, such body shall until buried remain in the custody of the local board of health or local health officer, or if there be no such, then in the custody of the municipal council. 10 G.R. No. 86470, Rollo at 34. 11 Annexes 7 & 8, Petition, G.R. No. 85140, Rollo at 85 and 86. 12 Resolution of 26 January 1989, G.R. No. 85140, Rollo at 114. 13 Ras v. Sua, G.R. No. L-23302, September 25, 1968, 25 SCRA 158-159; Nactor v. IAC, G.R. No. 74122, March 15, 1988, 158 SCRA 635. 14 39 Am. Jur., 2d, Habeas corpus 129. 15 Ibid., 130. 16 G.R. No. L-12772, 24 January 1959, 105 Phil. 55. 17 Ibid. 18 PNB vs. CA, G.R. No. L-45770, 30 March 1988, 159 SCRA 933. 19 Fiel vs. Banawa, No. 56284-R, March 26, 1979, 76 OG 619. 20 Article 144 of the Civil Code provides: When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. 21 Aznar, et al. vs. Garcia, et al., G.R. Nos. L-11483-84, 14 February 1958, 102 Phil. 1055. 22 G.R. Nos. 61700-03, September 24, 1987, 153 SCRA 728. 23 People vs. Constantino, No. 01897-CR, September 6, 1963, 60 O.G. 3603.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. P-02-1651 August 4, 2003

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent. PUNO, J.: The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the state's interest and the respondent's religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses.1 The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is "considerable internal inconsistency in the opinions of the Court."2 As stated by a professor of law, "(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the "constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us."4 I. Facts The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials. In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she 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.5 Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor's live-in arrangement did not command respect.7 Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow, her husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz: DECLARATION OF PLEDGING FAITHFULNESS 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 within my ability to obtain legal recognition of this relationship by the 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. I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to be held to and honored in full accord with the principles of God's 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 promise to legalize this union. Signed this 28th day of July 1991.10 Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her 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. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their "Declarations of Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and

considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents.12 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation's approval of her conjugal arrangement with Quilapio, viz: Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch. Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and honored in full accord with the principles of God's Word. xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.13 Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course of Judge Maceda's investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregation's belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor's) husband.14 Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a "Declaration of Pledging Faithfulness", viz: Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation? A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness.

Q: A:

What is that document? Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document? A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation. Q: What standard rules and regulations do you have in relation with this document? A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God. Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation? A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness. Q: And what does pledge mean to you?

A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship. Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage? A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof? A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship. Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit? A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse

Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife, except on account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery.15 Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation in Las Pias, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations. Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Honor Before God and Men,"16 in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. The declaration requires the approval of the elders of the Jehovah's Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovah's 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. It is thus standard practice of the congregation to check the couple's marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses' commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor's and Quilapio's declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregation's branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. 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.17 Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah's Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower

Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovah's Witnesses congregations which also distribute them to the public.18 The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovah's Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor's administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek means to . . . legalize their union." Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah's Witnesses congregation and use their religion as a defense against legal liability.19 On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovah's Witnesses. She quoted portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her memorandum signed by herself, viz: The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar's authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of God's Son, can be guided by basic Scriptural principles that hold true in all cases. God's view is of first concern. So, first of all the person must consider whether that one's present relationship, or the relationship into which he or she contemplates entering, is one that could meet with God's approval, or whether in itself, it violates the standards of God's Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of one's immediate family, or a homosexual relationship or other such situation condemned by God's Word. It is not the lack of any legal validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not

make any kind of "Declaration of Faithfulness," since it would have no merit in God's eyes. If the relationship is such that it can have God's approval, then, a second principle to consider is that one should do all one can to establish the honorableness of one's marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage. Finally, if the marital relationship is not one out of harmony with the principles of God's Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability. Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to God's view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to one's mate, thus, keeping the marriage "honorable among all." Such course will bring God's blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)20 Respondent also brought to the attention of the investigating judge that complainant's Memorandum came from Judge Caoibes' chambers21 whom she claims was merely using petitioner to malign her. In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community' (7 C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question is whether or not to exact from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar."22 The investigating judge acknowledged that "religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the dismissal of the complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et al.25 that "court personnel 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 the court of justice," DCA Lock found Escritor's defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.26 II. Issue Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or not respondent's right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable. III. Applicable Laws Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz: Sec. 46. Discipline: General Provisions. - (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. (b) The following shall be grounds for disciplinary action: xxx (5) Disgraceful and immoral conduct; xxx. Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovah's Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz: xxx xxx

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. IV. Old World Antecedents of the American Religion Clauses To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old World. 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.27 This fresh look at the religion clauses is proper in deciding this case of first impression. In primitive times, all of life may be said to have been religious. Every significant event in the primitive man's life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him "the wrathful vengeance of a superhuman mysterious power."28 Distinction between the religious and nonreligious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.29 Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of the community.30 There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man promulgated laws concerning man's obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property;31 and also catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabi's own god to a position of equality with existing gods.32 In sum, the relationship of religion to the state (king) in preHebreic times may be characterized as a union of the two forces, with the state almost universally the dominant partner.33

With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious motivation was primary and allembracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these. Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over the previous reigning gods.35 Moses, on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further God's purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God.36 Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed out, viz: Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question of change from one religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose.37 (emphasis supplied) The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of government. With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.38 Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the state's purposes. He reformed the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne.39 The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-

Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him.40 The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race", placing them in the same category as pirates and brigands and other "enemies of mankind" who were subject to summary punishments.41 In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts proved futile. The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on condition that nothing is done by them contrary to discipline."43 A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided "that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice." (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted "that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it was provided that the "same free and open power to follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice."(emphasis supplied)44 Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperor's command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the state's persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die unsaved.

Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the church's accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church and state."46 Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant.47Papist and Protestant governments alike accepted the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the outward manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent."49 But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise."50 To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition.51 There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread."52 The minority or dissident sects also ardently advocated religious liberty. The Anabaptists,

persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments.53 The English Baptists proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion."54 Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luther's belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.60 When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.61 In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United States Constitution was adopted, viz: Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions.62 In sum, this history shows two salient features: 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 religion's 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.63 V. Factors Contributing to the Adoption of the American Religion Clauses Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely provided their cultural fare.64But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not, were required to support or attend.65 At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different faiths.66

This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and deism."67 Each of these factors shall be briefly discussed. First, the practical factors. England's policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable only if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of commerce."68 The diversity brought about by the colonies' open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive rightness of one's religion, which impels persecution for the sake of one's religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive.69 But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the country had a church affiliation at the time the republic was founded.70 This might be attributed to the drifting to the American colonies of the skepticism that characterized European Enlightenment.71 Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong.72 However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment.74 Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.75 Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments."76 In Williams' pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,77 he articulated the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning the true fear of God" is not one of the powers that the people have transferred to Civil Authority.78 Williams' Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.79 William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because "imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the "Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil liberty which provided among others, for liberty of conscience.80 The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.82 Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in America's Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new

nation that severed its political bonds with the English crown which violated the self-evident truth that all men are created equal.83 The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz: Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to secure every one's property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrate's power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.84 (emphasis supplied) The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction ("render unto Caesar that which is Caesar's"; "my kingdom is not of this world") and to the rationalist, the power to act in the realm of religion was not one of the powers conferred on government as part of the social contract.85 Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background.87 For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout history.88 Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paine's Age of Reason.89 Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment. Virginia was the "first state in the history of the world to proclaim the decree of absolute divorce between church and state."90 Many factors contributed to this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its identification with the Crown's tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally,91 who had accepted the social contract as self-evident, and who had been greatly

influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the state's first constitution: That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.92 (emphasis supplied) The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment.93 But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the establishment's loss of its exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which "society for the purpose of Religious Worship" he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately among the societies.94 The bill evoked strong opposition. In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was introduced requiring all persons "to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship."95 This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance against Religious Assessments" written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.96 It stressed natural rights, the government's lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. He wrote, viz: Because we hold it for a 'fundamental and undeniable truth,' that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every man to

exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal sovereign.97 (emphases supplied) Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The assessment bill was speedily defeated. Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January 1786. It provided, viz: Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.98 (emphases supplied) This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia.99 But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation100 grounded on rational, secular arguments and to the language of natural religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e.,

subjective, spiritual and supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104 Jefferson's religious freedom statute was a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.105However, omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion.107 Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, 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. VI. Religion Clauses in the United States: Concept, Jurisprudence, Standards With the widespread agreement regarding the value of the First Amendment religion clauses comes 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 Congress renders it difficult to ascertain its meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role.109 Government runs even family planning, sex education, adoption and foster care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government."111 With government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result,

increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values.112 Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.114 Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.115The more difficult religion clause cases involve government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with "burdensome effect" on religious exercise even if the government action is not religiously motivated.116 Ideally, 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 turn to the courts for protection.117 Most of these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has a "burdensome" effect.118 With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes.119 It was in the 1890 case of Davis v. Beason120 that the United States Supreme Court first had occasion to define religion, viz: The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his

will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.121 The definition was clearly theistic which was reflective of the popular attitudes in 1890. In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger126 which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Speaking for the Court, Justice Clark ruled, viz: Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief 'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied) The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training. Federal and state courts have expanded the definition of religion in Seeger to include even nontheistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies a central place in the believer's life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely

subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some associational ties,128although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.129 Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the same coin.130 In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in different circumstances.131 The purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is the protection and promotion of religious liberty.132 The end, the goal, and the rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a propensity.135 In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is established.136 It has even been suggested that the sense of the First Amendment is captured if it were to read as "Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single purpose of the two religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all138 because history has shown that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state.139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."140 In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz: 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.141 (emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases. A. Free Exercise Clause The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances would permit would be punished with damnation in the life to come. Reynolds' act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the Court, declares "the true distinction between what properly belongs to the Church and what to the State."144 The bill, making a distinction between belief and action, states in relevant part, viz: That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.145 (emphasis supplied) The Court then held, viz: Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and

in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.146 The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislature's preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature's religious preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself.148 This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.149 However, more than a century since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs.150 The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs151 and proscribes government from questioning a person's beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a person's religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovah's Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.155 Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the propagation of that belief, viz: Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied)156 The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safety of the community. Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not prohibit members of the Jehovah's Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's denial of a permit to the Jehovah's Witnesses to use the city park for a public meeting. The city council's refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness.159 The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action.160 The Mormons' religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect may designate as religion."161 The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the government's non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the

Court abandoned the simplistic belief-action distinction and instead recognized the deliberateinadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and government's inadvertent interference with religion in pursuing some secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovah's Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a "graven image." The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses' practice of their religion, but justified the government regulation as an appropriate means of attaining national unity, which was the "basis of national security." Thus, although the Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state's non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that "compulsory unification of opinions leads only to the unanimity of the graveyard" and exempt the students who were members of the Jehovah's Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that, "freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.167 Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v. Brown169 where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the state's interest. He employed a two-

part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices.170 The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day. Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. 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, appellee's 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 appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate. . .'NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (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.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest to override Sherbert's religious liberty. It added that even if the state could show that Sherbert's 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 Sherbert's 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,175 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, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.176 Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would significantly impair government's achievement of its objective - "the fiscal vitality of the social security system;" mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the government's war-related activities, for example. 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 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.181 Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the religious practice of the Old Order Amish faith over the state's compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth grade. 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 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. . .183 The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the wellestablished practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the state's interest in prohibiting the use of illicit drugs. Oregon's controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as "job-related misconduct". They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregon's drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz: We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.

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. . . We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." . . .To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs except where the State's interest is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . . - contradicts both constitutional tradition and common sense. Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nation's fundamental commitment to religious liberty." This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Court's decision. Justice O'Connor asserted that "(t)he compelling state interest test effectuates the First Amendment's 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'." Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon's interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents' right to the free exercise of their religion." The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an interference with the minority's religious freedom. If the regulation had instead restricted the majority's religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majority's non-religious objectives at the

expense of the minority's religious interests implements the majority's religious viewpoint at the expense of the minority's. Second, 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. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held 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.186 Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout,187 contrary to the original theory of the First Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for exemption.189 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.190 So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a person's free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional interpretation. After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious rituals. It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less

protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.194 B. Establishment Clause The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195 Prior cases had made passing reference to the Establishment Clause196 and raised establishment questions but were decided on other grounds.197 It was in the Everson case that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States198 quoted Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion clauses, viz: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.199 (emphasis supplied) Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."200 The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in public schools.201 In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state's legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz: The 'establishment of religion' clause of the First Amendment 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 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 nonattendance. 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."202 The Court then ended the opinion, viz: 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. New Jersey has not breached it here.203 By 1971, the Court integrated the different elements of the Court's Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205 Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black stated that "in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord's prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:

The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.210 The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state legislatures condemned these decisions.211 On several occasions, constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at the start of each school day. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,213 decided just a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of tax-established and taxsupported public school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one religion over another and not an impartial governmental assistance of all religions. In Zorach v. Clauson,214 however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State." The Court distinguished Zorach from McCollum, viz: In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . We follow the McCollum case.

But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.215 In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, inMcGowan v. Maryland,216 the Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz: It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.217 In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska's policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers' expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, "(w)e are a religious people whose institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied) Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress."220 That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a "neutral harbinger of the holiday season" for many, rather than a symbol of Christianity. The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York City Tax Commission's grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.223 The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property taxation levied on private profit institutions"224 and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the Court's traditional deference to legislative bodies with respect to the taxing power, viz: (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.225 (emphasis supplied) C. Strict Neutrality v. Benevolent Neutrality To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz: Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees' work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226 But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or

conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame.227 But the accommodationists have also attracted a number of influential scholars and jurists.228 The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame protects the principle of church-state separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle.229 The latter also appeals to history in support of its position, viz: The opposing 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 Jefferson's 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.230 (emphasis supplied) To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after Congress adopted the First Amendment's 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. Only two members of 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.231 Thus, accommodationists also go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time before or since,232accommodationaists claim that American citizens at the time of the Constitution's origins were a remarkably religious people in particularly Christian terms.233 The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall of separation." The strict separtionist view holds that Jefferson

meant the "wall of separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the state's hostility towards religion allows no interaction between the two.236 In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion.237 This approach erects an absolute barrier to formal interdependence of religion and state. 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.238 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.239 Strict separation faces difficulties, however, as it is deeply embedded in 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. Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.240 A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Court's tendency to press relentlessly towards a more secular society.241 It finds basis in the Everson case where the Court declared that Jefferson's "wall of separation" encapsulated the meaning of the First Amendment but at the same time held that the First Amendment "requires the state to be 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." (emphasis supplied)242 While the strict neutrality approach is not hostile to religion, 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.243 Professor Kurland wrote, viz: The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden.244 The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects.245 Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public schools as in Engel and

Schempp.246 The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both 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. However, if the strict neutrality standard is applied in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, 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.247 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 Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.248 The separationist approach, whether strict or tame, is caught in a dilemma because 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.249 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.250 Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for accommodation is buttressed by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the church from the state,251 i.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of the world252 with its potential for corrupting those values so necessary to religious commitment.253 Howe called this the "theological" or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to protect politics from intrusions by the church.254 But it has been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical and evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.255 The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams' view would therefore allow for

interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious commitment.256 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.257 This "theological" view of separation is found in Williams' writings, viz: . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . .258 Chief Justice Burger spoke of benevolent neutrality in Walz, viz: 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.259 (emphasis supplied) The Zorach case expressed the doctrine of accommodation,260 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.261 (emphases supplied) Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no human society without one or more ways of performing the essential function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.262 As one sociologist wrote: It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.263 Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social scientists would classify as a religionReligion is as much a human universal as language."264 Benevolent neutrality thus 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 Court's 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.265 These practices clearly show the preference for one theological viewpoint -the existence of and potential for intervention by a god - over 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.266 The persistence of these de facto establishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams' wall, has demanded respect for these de facto establishments.267 But the separationists have a different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these practices as "'de minimis' instances of government endorsement or as historic governmental practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion.268 With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government's favored form of religion, but to allow individuals and groups to exercise their religion without

hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's 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."269 (emphasis supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself.270 Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: "Is the freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of 'religious blindness' - keeping government aloof from religious practices and issues?" An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.271 There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at "religion." The government may not "establish" religion and neither may government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - government action that promotes the (political) majority's favored brand of religion and government action that impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the "religion blindness" of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence for religious

entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is 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. 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, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.272 Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are "intentional government advancement", these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions

or practices in the absence of a compelling state interest.275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. "Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant."277 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.278 In these cases of "burdensome effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important or compelling government goal through the least restrictive means. If the state's objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.279This approach of the Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit of nonreligious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.280 In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation where the 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."281 The Court held that New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, 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.282 An example where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion. In the first situation where accommodation is required, the approach follows this basic framework: 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 claimant's beliefs must be 'sincere', but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimant's religious denomination. 'Only beliefs rooted in religion are protected by the Free Exercise Clause'; secular beliefs, however sincere and conscientious, do not suffice.284 In other words, a three-step process (also referred to as the "two-step balancing process" supra when the second and third steps are combined) as in Sherbert is followed in weighing the state's interest and religious freedom when these collide. Three questions are answered in this process. 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 claimant's belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case.286 Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish people's convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task the person claiming exemption, viz: On the claimant's side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individual's religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.288 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.289 The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under the particular set of facts. The greater the state's interests, the more central the religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption.290 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?"291The 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. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined judgment.292 In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society.293 VII. Religion Clauses in the Philippines A. History Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295 Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the state religion.296 The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of "separation of church and state" was transported to Philippine soil. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion."297 Even

the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and government was short-lived as the Americans took over the reigns of government.298 With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz: That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling.299 This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he separation between State and Church shall be real, entire and absolute."300 Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed. In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect."302 The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz: That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship."303 The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President McKinley's Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz: Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and 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. This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because "the principles must remain couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them."306 The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz: Sec. 8. 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. This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be inviolable." Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies. 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. B. Jurisprudence In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of "religion". "Religion" is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of "religion" to determine whether a nontheistic belief or act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined "religion" as a "profession of faith to an active power that binds and elevates man to his Creator." Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,311 a case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: "(i)t has reference to one's views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will." The Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. 1. Free Exercise Clause Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.312 In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of Education313 is instructive on the matter, viz: The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel.314 The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible Society was a foreign, nonstock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayor's permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the city's 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." After defining religion, the Court, citing Tanada and Fernando, made this statement, 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. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to apply the test altogether. Instead, 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. To add, the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance 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." Thus, in American Bible Society, the "clear and present danger" rule was laid down but it was not clearly applied. In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of Religion Clause does not prohibit imposing a

generally applicable sales and use tax on the sale of religious materials by a religious organization." In the Court's resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly. Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovah's 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, petitioner's 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 stated, viz: . . . 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. The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)320 The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following justification: After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.321 It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioner's children, stressing that: Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.322 In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette case, viz:

The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.323 It stated in categorical terms, viz: The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.324 Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of one's religion, one's right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325 Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz: Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.327 (emphasis supplied) As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied) Quoting Aglipay v. Ruiz,329 the Court held 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." It also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz: (Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.331 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."332 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."333

A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court mentioned the test of "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state's secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes. It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the "compelling state interest" test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the "compelling state interest" test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding Sherbert's claim of religious freedom. The U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state interest was not sufficiently compelling to prevail over Sherbert's free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336 Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang security area to pray for "an end to violence" when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim

majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz: . . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.337 The Court reiterated the Gerona ruling, viz: In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: . . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied) The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth functioning of the executive branch of the government, which petitioners' mass action would certainly disrupt"338and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law. Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent stated in relevant part, viz: A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues. 1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly "along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights 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 (Idem, at pp. 560-561).339 (emphasis supplied) The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the AntiBases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions' right to assemble and petition the government for redress of grievances.340 In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before the Court inEbralinag v. The Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovah's 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 same religious freedom issue as in Gerona, the Court this time transported the "grave and imminent danger" test laid down in Justice Teehankee's dissent in German, 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.342 (emphasis supplied) The Court added, viz: We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a 'small portion of the school population' will shake up our part of the globe and suddenly produce a nation 'untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes' (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of 'patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987 Constitution) as

part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.343 Barnette also found its way to the opinion, viz: Furthermore, let it be noted that coerced unity and loyalty even to the country, x x xassuming that such unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344 Towards the end of the decision, the Court also cited the Victoriano case and its use of the "compelling state interest" test in according exemption to the Jehovah's Witnesses, viz: In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group: 'x x x 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.' (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)' We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however 'bizarre' those beliefs may seem to others.345 The Court annulled the orders expelling petitioners from school. Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony "is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free exercise of religious profession and worship;" the Court then stated in a footnote that the "flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances."346 The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General's consolidated comment, one of the grounds cited to defend the expulsion

orders issued by the public respondents was that "(t)he State's compelling interests being pursued by the DEC's lawful regulations in question do not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions."347 The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners' religious freedom. Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.348Although there was a dissent with respect to the applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program and xrating them. While upholding the Board's power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz' commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on one's belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurter's dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."349 Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the "clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare."350 In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-rating was a suppression of petitioner's freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack. The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test of "immediate and grave danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz: The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no

showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial"351 and ruled, viz: . . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.352 In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.353 2. Establishment Clause In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.354 As a social value, it means that the "growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics."355 Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.356 The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears

that the Director of Posts issued the questioned stamps under the provisions of Act No. 4052358 which appropriated a sum for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government." The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz: The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration. Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . .359 xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360(emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saint's image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an "ingrained tradition in rural communities" that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was "purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents." Citing the Aglipay ruling, the Court declared, viz: Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz: Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that 'no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ***.' Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: 'this Maryland religious test for

public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate.364 On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a nonestablishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor. Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American Jurisprudence,366 viz: Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. . .367 The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, citingWatson v. Jones,368 declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised,viz: The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of

membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.369 VIII. Free Exercise Clause vis--vis Establishment Clause In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases.370 One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation of church and state justified the prohibition. Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz: In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.371 (emphasis supplied) Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden of property taxation levied on private profit institutions." Justice Burger wrote, viz: (t)he 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.372 Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements.373 (emphasis supplied) Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment." How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based support of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizen's free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised.374 American professor of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict with the anti-establishment principle." This dominance would be the result of commitment to religious tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court.376 IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and Jurisprudence 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. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions and the

growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. 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. 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.377 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.378 We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz: (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth period.379 The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that

their existence be also guaranteed by exempting them from taxation."380 The amendment was readily approved with 83 affirmative votes against 15 negative votes.381 The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by non-profit, quasi-public corporations because the state upheld the secular policy "that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest." The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a long-standing tradition of exemption. 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. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz: (3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. (emphasis supplied) The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such382 In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the question on the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the

feared situation where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas' payment of prison chaplains' salaries as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers' expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall. To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz: . . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . The law then applicable was Section 928 of the Administrative Code, viz: It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . . During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.386 The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state.387 As in the provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine

jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion. Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing) the aid of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof."388 There was no debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations."389 The 1935 Constitution's religion clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.390 The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may be provided by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in public elementary and high schools shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to them and the government." With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of Divine Providence." In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, the question arose as to whether the "absolute" separation of Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The subcommittee's answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of religion in human society" and the Filipinos' imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.391 Among the position papers submitted to the Committee on Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in

fact recognizes the value of religion and accommodates religious values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.393 Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public money for purposes which might have religious connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his proposal.394 The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted "within the regular class hours" and "without additional cost to the government". There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial services,395 and when during the day instruction would be conducted.396 In deliberating on the phrase "within the regular class hours," Commissioner Aquino expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: . . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something here which is contrary to American practices.397 (emphasis supplied) "(W)ithin regular class hours" was approved. he provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz: . . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church and State is inviolable,' is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the

statement of separation of church and state but on the non-establishment clause in the Bill of Rights.398 The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate on whether to use "Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or indifference.401 The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.402 The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise. Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. 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.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed 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 largebut for each of us" to the greatest extent possible within flexible constitutional limits. Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of religion in human society" but acknowledged the Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government participation in longstanding traditions which have acquired a social character - "the barrio fiesta is a socio-religious affair" - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause. While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the religion clauses are a unique American experiment which understandably came about as a result of America's English background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history and tradition. After all, "the life of the law. . . has been experience." But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free exercise.405

The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. 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 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 state's 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.406 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,407 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.408 In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide.409 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. X. Application of the Religion Clauses to the Case at Bar A. The Religion Clauses and Morality In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In these cases, there was not one dissent to the majority's ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for "disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order. At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of morality beyond Socrates' simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally.413 The answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no

fundamental agreement about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price.414 This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a society's members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should nevertheless be a "fundamental agreement about good and evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Hart's argument propounded in Mr. Justice Vitug's separate opinion that, "Devlin's view of people living in a single society as having common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to recognize the necessity of Devlin's proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society. In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance.417 Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom "not only for a minority, however small- not only for a majority, however large- but for each of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a

pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious accommodations. The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over a period of time."421Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.422 Law has also been defined as "something men create in their best moments to protect themselves in their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, "the life of the law...has been experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public morality for a society"425 in pursuit of moral progress. In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the person injured but against society as a whole.428 Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order.429 Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual congress "between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country." His opinion asks whether these laws on private morality are justified or they constitute impingement on one's freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondent's conduct, which constitutes concubinage,430 is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape431 where consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,432 but does not alter the legislature's characterization of the act as a moral disapprobation

punishable by law. The separate opinion states that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality." The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and private morality," but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed. Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz: Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (emphasis supplied) We then cited in Velayo the Code Commission's comment on Article 21: Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.433(emphases supplied) 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. Religious morality proceeds from a person's "views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will," in accordance with this Court's definition of religion in American Bible Society citing Davis. Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man's "views of his relations to His Creator."434 But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce.435 Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers436, or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil Code,438 or "moral character" in the Constitution,439 the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind.440 The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The nonbelievers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.442 In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have

an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, 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. Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because 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. More concretely, should the Court declare respondent's conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On

the other hand, should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondent's conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical matters which are outside the province of the civil courts."444 But while the state, including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The state's inroad on religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription. 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. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of irregularities and indentations."445 But the case at bar does not require us to comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not attach. We need not concern ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will survive. 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. Lest the Court inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us. In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of morality and stated that the "ascertainment of what is

moral or immoral calls for the discovery of contemporary community standards" but did not articulate how these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered." It identified the Civil Service Law and the laws on adultery and concubinage as laws which respondent's conduct has offended and cited a string of precedents where a government employee was found guilty of committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondent's conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be determined by respondent's 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." The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."447 The resolution of that case hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons' act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a project, was covered by the phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons' practice of polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world,"450 and thus punishable by law. The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah's 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. While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. Justice Ynares-Santiago's dissent nevertheless discussed respondent's plea of religious freedom and disposed of this defense by stating that "(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. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). 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." However, the foregoing discussion has shown that the "clear and present danger" test that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The

dissent also cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses. In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for "disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, 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." In addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondent's plea of religious freedom cannot prevail without so much as employing a test that would balance respondent's religious freedom and the state's interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondent's plea of religious freedom without even subjecting it to the "compelling state interest" test that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution. Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451 cited in Mr. Justice Carpio's dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because "it (was) not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 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 married x x x under Muslim Law,' it is not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating respondent's conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at Bar The case at bar being one of first impression, we now subject the respondent's claim of religious freedom to the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining the possibility that respondent's claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether respondent's right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherbert's religious exercise was burdened as the denial of unemployment benefits "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." The burden on respondent in the case at bar is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands "honorable before God and men." The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah's Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the "union" of their members under respondent's circumstances "honorable before God and men." It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters453 of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCA's letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had different positions regarding respondent's request for exemption from the flag ceremony on the ground of the Jehovah's Witnesses' contrary belief and practice. Respondent's request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah's Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah's Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further question the respondent's sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at bar from its incipience until this point.

In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar cannot still be decided using the "compelling state interest" test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in the Court's use of the "compelling state interest" test. We note that the OCA found respondent's defense of religious freedom unavailing in the face of the Court's ruling in Dicdican v. Fernan, et al., viz: It bears emphasis 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 personnel 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 the courts of justice. It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCA's memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent's plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondent's religious exercise. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent's stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore simply take a passing look at respondent's claim of religious freedom, but must instead apply the "compelling state interest" test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state's compelling interest which can override respondent's religious belief and practice. To repeat, this is a case of first impression where we are applying the "compelling state interest" test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God. IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence on the state's "compelling interest" to override respondent's religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondent's religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrator's receipt of this Decision. SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur. Bellosillo and Vitug, JJ., please see separate opinion. Ynares-Santiago, and Carpio, JJ., see dissenting opinion. Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio. Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

Footnotes Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal Separation (1990), p. 17. Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668. 3 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse," University of Pennsylvania Law Review, vol. 140(1), November 1991, pp. 149-150. 4 Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963). 5 Rollo, pp. 5-6. 6 Id. at 8. 7 Id. at 19-26; TSN, October 12, 2000, pp. 3-10. 8 Id. at 101. 9 Id. at 100; Exhibit 3, Certificate of Death. 10 Id. at 10; Exhibit 1. 11 Id. at 11; Exhibit 2. 12 Id. at 27-33. 13 Id. at 37. 14 Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10. 15 Id. at 156-160, TSN, May 29, 2002, pp. 5-9. 16 Citing biblical passages, this article addresses the question, "Does the validity of a marriage depend entirely upon its recognition by civil authorities and does their validation determine how Jehovah God, the author of marriage, views the union?" It traces the origins of marriage to the time of the Hebrews when marriage was a family or tribal affair. With the forming of Israel as a nation, God gave a law containing provisions on marriage, but there was no requirement for a license to be obtained from the priesthood nor that a priest or a representative from government be present in the marriage to validate it. Instead, as long as God's law was adhered to, the marriage was valid and honorable within the community where the couple lived. In later Bible times, marriages came to be registered, but only after the marriage had been officiated, thereby making the government only a record-keeper of the fact of marriage and not a judge of its morality. In the early centuries of the Christian congregation, marriage was likewise chiefly a family affair and there was no requirement of license from the religious or civil authority to make it valid and honorable. It was conformity to God's law that was necessary for the marriage to be viewed as honorable within the congregation. Later, however, the civil authorities came to have more prominence in determining the validity of a marriage while the role of the congregation waned. Christians cannot turn their back on this reality in desiring to make their marriage honorable "among all", i.e., in the sight of God and men. However, the view of civil authorities regarding the validity of marriage is relative and sometimes even contradictory to the standards set by the Bible. For example, in some lands, polygamy is approved while the Bible says that a man should only have one wife. Likewise, some countries allow divorce for the slightest reasons while others do not allow divorce. The Bible, on the other hand, states that there is only one ground for divorce, namely, fornication, and those divorcing for this reason become free to marry. To obtain a balanced view of civil authority (or Caesars' authority in Biblical terms) regarding marriage, it is well to understand the interest of civil governments in marriage. The government is concerned with the practical aspects of marriage such as property rights and weakening genetic effects on children born to blood relatives, and not with the religious or moral aspects of marriage. Caesar's authority is to provide legal recognition and accompanying protection of marital rights in court systems, thus a Christian desiring this recognition and rights must adhere to Caesar's requirements. However, God is not bound by Caesar's decisions and the Christian "should rightly give conscientious consideration to Caesar's marriage and divorce provisions but will always give greatest consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom. 13:105). . . Thus the Christian appreciates that, even though Caesar's rulings of themselves are not what finally determine the validity of his marriage in God's eyes, this does not thereby exempt him from the Scriptural injunction: 'Let marriage be honorable among all.' (Heb. 13:4) He is obligated to do conscientiously whatever is within the power to see that his marriage is accorded such honor by all." Those who wish to be baptized members of the Christian congregation but do not have legal recognition of their marital union should do all that is possible to obtain such recognition, thereby removing any doubt as to the honorableness of their union in the eyes of people. In some cases, however, it is not possible to secure this recognition. For instance, in countries where divorce is not allowed even on the Scriptural ground of fornication, either because of the dominance of one religion or other reasons, a man might have left his unfaithful wife and lives with another woman with whom he has a family. He may later learn the truth of God's Word and desire to be baptized as a disciple of God's Son, but he cannot obtain divorce and remarry as the national laws do not allow these. He might go to a land which permits divorce and remarry under the laws of that land and add honor to his union, but upon returning to his homeland, the law therein might not recognize the union. If this option is not available to that man, he should obtain a legal separation from his estranged mate or resort to other legal remedies, then "make a written statement to the local congregation pledging faithfulness to his present mate and declaring his agreement to obtain a legal marriage certificate if the estranged legal wife should die or if other circumstances should make possible the obtaining of such registration. If his present mate likewise seeks baptism, she would also make such a signed statement." (p. 182) In some cases, a person might have initiated
1 2

the process of divorce where the law allows it, but it may take a long period to finally obtain it. If upon learning Bible truth, the person wants to be baptized, his baptism should not be delayed by the pending divorce proceedings that would make his present union honorable for "Bible examples indicate that unnecessary delay in taking the step of baptism is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16)." Such person should then provide the congregation with a statement pledging faithfulness, thereby establishing his determination to maintain his current union in honor while he exerts effort to obtain legal recognition of the union. Similarly, in the case of an already baptized Christian whose spouse proves unfaithful and whose national laws do not recognize the God-given right to divorce an adulterous mate and remarry, he should submit clear evidence to the elders of the congregation of the mate's infidelity. If in the future he decides to take another mate, he can do this in an honorable way by signing declarations pledging faithfulness where they also promise to seek legal recognition of their union where it is feasible. This declaration will be viewed by the congregation as "a putting of oneself on record before God and man that the signer will be just as faithful to his or her existing marital relationship as he or she would be if the union were one validated by civil authorities. Such declaration is viewed as no less binding than one made before a marriage officer representing a 'Caesar' government of the world. . . It could contain a statement such as the following: I, __________, do here declare that I have accepted __________ as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before Jehovah God and before all persons, to be held to and honored in full accord with the principles of God's 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 makes this possible I promise to legalize this union." The declaration is signed by the declarant and by two others as witnesses and the date of declaration is indicated therein. A copy of the declaration is kept by the persons involved, by the congregation to which they belong, and by the branch office of the Watch Tower Society in that area. It is also beneficial to announce to the congregation that a declaration was made for their awareness that conscientious steps are being undertaken to uphold the honorableness of the marriage relationship. It must be realized, however, that if the declarant is unable to obtain recognition from the civil authorities, even if he makes that declaration, "whatever consequences result to him as far as the world outside is concerned are his sole responsibility and must be faced by him." (p. 184) For instance, should there be inheritance or property issues arising from an earlier marriage, he cannot seek legal protection with regard to his new, unrecognized union. 17 Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-32. 18 Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6. 19 Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4. 20 Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo, pp. 109-110, "Maintaining Marriage Before God and Men", pp. 184-185. 21 Rollo, p, 240; Respondent's Memorandum, p. 2. 22 Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p. 3. 23 Id. at 4. 24 Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 6. 25 A.M. No. P-96-1231, February 12, 1997. 26 Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 7. 27 Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii. 28 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 22. 29 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 29. 30 Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution of Religion (1923), pp. 68, 206. 31 Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-528. 32 Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p. 47. 33 Pfeffer, L., supra, p. 4. 34 Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in Complete Works of Josephus, p. 500. 35 Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47. 36 It may also be said that Moses actually used the concept of a single all-powerful God as a means of unifying the Hebrews and establishing them as a nation, rather than vice versa. What is important to note, however, is that the monotheism which served as foundation of Christianity of western civilization with its consequences in church-state relations was established by Moses of the Bible, not the Moses of history. Pfeffer, L., supra, p. 5. 37 Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p. 24. 38 Pfeffer, L., supra, p. 7, citing 1 Kings 2:35. 39 Pfeffer, L., supra, p. 7. 40 Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions (1934), p. 108. 41 Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168. 42 Pfeffer, L., supra, p. 13. 43 Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian Church (1940), p. 108. 44 Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481. 45 Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, "Charles the Great," 14th ed., V, p. 258. 46 Pfeffer, L., supra, p. 22. 47 Pfeffer, L., supra, p. 23. 48 Greene, E., Religion and the State (1941), p. 8. 49 Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luther's Primary Works (1885), pp. 194-185. 50 Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in Chrisitianity," in Essays on Freedom and Power (1949), p. 103. 51 Pfeffer, L., supra, pp. 24-25. 52 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.

Greene, E., supra, p. 9. Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113. 55 Pfeffer, L., supra, p. 26. 56 Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church and State in England (1950), p. 93. 57 Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions (1949), pp. 674-675 and Garbett, C., pp. 61-62. 58 Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents, 130-135. 59 Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243. 60 Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132. 61 Everson v.Board of Education of the Township of Ewing, et al., 330 U.S. 1 (1947), pp. 8-9. 62 Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950. 63 Pfeffer, L., supra, p. 30. 64 Beth, L., American Theory of Church and State (1958), p. 3. 65 Everson v. Board of Education, 330 US 1(1946), pp. 8-10. 66 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79. 67 Pfeffer, L., supra, pp. 92-93. 68 Pfeffer, L., supra, p. 96. 69 Pfeffer, L., supra, p. 95 70 Another estimate of church membership in 1775 is that in none of the colonies was membership in excess of 35 percent of the population. (Beth, L., American Theory of Church and State [1958], p. 73.) 71 Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making, Second Edition (1980), p. 1276. 72 Pfeffer, L., supra, pp. 96. 73 Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American Dissent (1934), p. 202. 74 Pfeffer, L., supra, p. 93. 75 Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb, S.H., The Rise of Religious Liberty in America (1902), p. 485. 76 Pfeffer, L., supra, p. 85. 77 Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36. 78 Pfeffer, L., supra, p. 87. 79 Pfeffer, L., supra, p. 86. 80 Pfeffer, L., supra, pp. 88-89. 81 Pfeffer, L., supra, p. 101. 82 Pfeffer, L., supra, p. 99. 83 Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government (edited by C.B: Macpherson), pp. 8-10. 84 Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion in America, 1774-1789 (1924), pp. 368-369. 85 Pfeffer, L., supra, p. 103. 86 Drakeman, D., Church-State Constitutional Issues (1991), p. 55. 87 Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of American Civilization, I (1947), p. 449. 88 Drakeman, D., supra, p. 55. 89 Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy (1948), p. 267. 90 Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in Establishing Religious Liberty as a Foundation of the American Government, Papers of the American Historical Association, II, p. 26. 91 Beth, L., American Theory of Church and State (1958), pp. 61-62. 92 Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition in Religion and Education (1950), pp. 46-47. 93 Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion in America, 1774-1789 (1924), p. 379. 94 Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56. 95 Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J., The Separation of Church and State in Virginia (1910), p. 86. 96 Beth, L., supra, p. 63. 97 Id. at 81-82. 98 Id. at 74-75. 99 Beth, L., supra, p. 63. 100 Id at 63-65. 101 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse", University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160. 102 Id. at 63-65. 103 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse", University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160. 104 Beth, L., supra, pp. 63-65. 105 Id. at 69. 106 Drakeman, D., supra, p. 59. 107 Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., "The Fathers of the Republic and Constitutional Establishment of Religious Liberty" (1930), pp. 692-693. 108 Beth, L., supra, p. 71. 109 Berman, H., "Religious Freedom and the Challenge of the Modern State," Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152. 110 Monsma, S., "The Neutrality Principle and a Pluralist Concept of Accommodation" in Weber, P., Equal Separation (1990), p. 74. 111 Berman, H., supra, pp. 151-152. 112 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1340.
53 54

Weber, P., "Neutrality and first Amendment Interpretation" in Equal Separation (1990), pp. 5-7. See also Kauper, P., Religion and the Constitution (1964), p. 99. 114 Monsma, S., supra, p. 73. 115 See Carter, S., "The Resurrection of Religious Freedom," Harvard Law Review (1993), vol. 107(1), p. 118, 128-129. 116 Emanuel, S., Constitutional Law (1992), p. 633. 117 Carter, S., supra, p. 118, 140. 118 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review (1992), vol. 59(1), p. 195, 214-215. 119 Kauper, P., Religion and the Constitution (1964), pp, 24-25. 120 133 U.S. 333 (1890). 121 133 U.S. 333 (1890), p. 342. 122 322 U.S. 78 (1944). 123 United States v. Ballard, 322 U.S. 78 (1944), p. 86. 124 Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law, Second Edition (1999), pp. 522-523. 125 367 U.S. 488 (1961). 126 380 U.S. 163 (1965). 127 Stephens, Jr., supra, p. 645. 128 Id. at 524. 129 Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989). 130 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1336-1337. 131 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal Separation (1990), p. 20. 132 Kauper, P., supra, p, 13. 133 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 626-627. 134 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law Review (1992), vol. 59(1), p. 115, 168. 135 McCoy, T., supra, p. 1335, 1336-1337. 136 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 626-627. 137 Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for the Future: Overcoming the Pfefferian Inversion," in The First Amendment Religion Liberty Clauses and American Public Life, p. 183. 138 Carter, S., supra, p. 118, 134-135. 139 Lupu, I., "The Religion Clauses and Justice Brennan in Full," California Law Review (1999), vol. 87(5), p. 1105, 1114. 140 Everson v. Board of Education, 330 US 1 (1946), p. 15. 141 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669. 142 See McCoy, T., supra, p. 1335, 1336. 143 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 49; Drakeman, Church-State Constitutional Issues (1991), p. 2. 144 Reynolds v. United States, 98 U.S. 164 (1878), p. 163. 145 Id. at 163. 146 98 U.S. 145, 166. 147 McCoy, T., supra, p. 1335, 1344-45. 148 Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), p. 1069. 149 136 U.S. 1 (1890). 150 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072. 151 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79. 152 367 U.S. 488 (1961). 153 322 U.S. 78, 86 (1944). 154 310 U.S. 296 (1940). 155 Id. at 310. 156 Id at 303-304. 157 319 U.S. 157 (1943). 158 340 U.S. 268 (1951). 159 452 U.S. 640 (1981). 160 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524. 161 133 U.S. 333, 345. 162 McCoy, T., supra, p. 1335, 1344-45. 163 310 U.S. 586 (1940). 164 319 U.S. 624 (1943). 165 Id. at 634. 166 Id. at 639. 167 McCoy, T., supra, p. 1335, 1345-46. 168 See Bloostein, M., "The 'Core'-'Periphery' Dichotomy in First Amendment Free Exercise Clause Doctrine: Goldman v. Weinberger, Bowen v. Roy, and O'Lone v. Estate of Shabbaz,z" Cornell Law Review, vol. 72 (4), p. 827, 828. 169 366 U.S. 599 (1961). 170 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073. 171 374 U.S. 398 (1963). 172 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073. 173 Sherbert v. Verner, 374 U.S. 398 (1963), p. 403. 174 Id. at 406. 175 Lupu, I., supra, p. 1105, 1110. 176 McCoy, T., supra, p. 1335, 1346-1347.
113

450 U.S. 707 (1981). 480 U.S. 136 (1987). 179 455 U.S. 252 (1982). 180 United States v. Lee, 455 U.S. 252 (1982), p. 260. 181 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526. 182 406 U.S. 205 (1972). 183 Id. at 214-215, 219-220. 184 494 U.S. 872 (1990). 185 McConnell, M., supra, p. 685, 726. 186 McCoy, T., supra, p. 1335, 1350-1351. 187 Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and 1191. See also Sullivan, K., "Religion and Liberal Democracy", The University of Chicago Law Review (1992), vol. 59(1), p. 195, 216. 188 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115, 139. 189 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review (1992), vol. 59(1), p. 195, 216. 190 Carter, S., supra, p. 118. 191 Rosenzweig, S., "Restoring Religious Freedom to the Workplace: Title VII, RFRA and Religious Accommodation," University of Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516. 192 138 L.Ed. 2d 624 (1994). 193 508 U.S. 520 (1993). 194 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529. 195 330 U.S. 1 (1946). 196 Drakeman, D., supra, p. 4-6. 197 Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53. 198 98 U.S. 164 (1878). 199 Reynolds v. United States, 98 U.S. 164 (1878), p. 164. 200 Id. at 164. 201 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532. 202 Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16. 203 Id. at 18. 204 403 U.S. 602 (1971). 205 Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613. 206 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540. 207 370 U.S. 421 (1962). 208 374 U.S. 203 (1963). 209 Id. 210 Id. at 222. 211 Witt, E. (ed.), supra, p. 93. 212 472 U.S. 38 (1985). 213 333 U.S. 203 (1948). 214 343 U.S. 306 (1952). 215 Zorach v. McCollum, 343 U.S. 306 (1952), p. 315. 216 366 U.S. 420 (1961). 217 Id. at 451-452. 218 463 U.S. 783 (1983). 219 Marsh v. Chambers, 463 US 783 (1983). 220 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541. 221 465 U.S. 668 (1984). 222 397 U.S. 664 (1970). 223 Id. at 673. 224 Id. 225 Id. at 676. 226 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115, 119-120. 227 Drakeman, D., supra, p. 51. 228 Id. at 53. 229 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541. 230 Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State: Historical Fact and Current Fiction. p. 50. 231 Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds., The Debates and Proceedings in the Congress of the United States, Compiled from Authentic Materials (Annala), vol. 1, pp. 949-950. 232 Beth, L., supra, p. 74. 233 Drakeman, supra, pp. 57, 82. 234 Buzzard, L., Ericsson, S., supra, p. 46. 235 Beth, L., supra, p. 72. 236 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277. 237 Beth, L., supra, p. 71. 238 The Constitution and Religion, p. 1541. 239 Id. at 1539. 240 Weber, P., "Neutrality and First Amendment Interpretation" in Equal Separation (1990), p. 3. 241 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115, 120. 242 Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
177 178

The Constitution and Religion, p. 1541, citing Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961). 244 Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and the Law (1962), p. 18. 245 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse," University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 186. 246 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540. 247 Buzzard, L., Ericsson, S., supra, p. 60. 248 Kelley, D., supra, p. 1189. 249 Monsma, S., supra, p. 74. 250 Id. at 75. 251 Smith, S., supra, p. 149, 159. 252 Drakeman, supra, p. 54. 253 Grossman, J.B. and Wells, R.S., supra, p. 1276. 254 Smith, S., supra, p. 149, 159. 255 Id. at 149, 159-160. 256 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277. 257 Id. at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and Roemer: From Separation to Dtente in Church-State Relations", 55 North Carolina Law Review (April 1977), 563-75. 258 Buzzard, L., Ericsson, S., supra, p. 51. 259 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669. 260 Buzzard, L., Ericsson, S., supra, p. 61. 261 Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314. 262 Kelley, D., supra, p. 34. 263 Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion (1970), p. 21. 264 Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of Religion (1963), pp. xxvii, xxviii. 265 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533. 266 Berman, H., supra, p. 162. 267 The Constitution and Religion, p. 1569. 268 McCoy, T., supra, p. 1335, 1338-1339. 269 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics", The George Washington Law Review (1992), vol. 60 (3), p. 685, 688. 270 Id. 271 Id. at 689. 272 Id. at 690-694, 715. 273 Id. at 686. 274 Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663, 679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983). 275 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law Review (1992), vol. 59(1), p. 115, 139, 184. 276 Id. at 174. 277 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 631. 278 Buzzard, L., Ericsson, S., supra, pp. 61-62. 279 Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp. 1067-1069. 280 Id. at 633. 281 Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673. 282 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics", The George Washington Law Review (1992), vol. 60 (3), p. 685, 715. 283 Buzzard, L., Ericsson, S., supra, pp. 61-63. 284 McConnell, "The Origins and Historical Understanding of Free Exercise of Religion," Harvard Law Review , vol. 103 (1990), p. 1410, 1416-7. 285 Buzzard, L., Ericsson, S., supra, p. 70. 286 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics," The George Washington Law Review (1992), vol. 60 (3), p. 685, 735. 287 Buzzard, L., Ericsson, S., supra, pp. 68-71. 288 Lupu, I., supra, p. 743, 775. 289 Id. at 775. 290 Nowak, J., Rotunda, R., and Young, J., supra, p. 1069. 291 Buzzard, L., Ericsson, S., supra, p. 68. 292 Lupu, I., supra, p. 743, 776. 293 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544. 294 Martinez, H., "The High and Impregnable Wall of Separation Between Church and State", Philippine Law Journal (1962), vol. 37(5), p. 748, 766. 295 Article II. 296 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), p. 284. 297 Coquia, J., Church and State Law and Relations, p. 52, citing Article X of the Treaty of Paris. The territories referred to were Cuba, Puerto Rico, Guam, the West Indies and the Philippine Islands. 298 Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la Republica Filipina promulgada el dia 22 de Enero de 1899 (Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9. 299 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 13, 148.
243

Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With Philippine Organic Laws 10. 25 Phil. 273 (1913). 302 Id. at 276. 303 Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd Congress (1934). 304 Laurel, S., Proceedings of the Philippine Constitutional Convention, vol. III (1966), pp. 654-655. 305 Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p. 164. 306 Id. at 150. 307 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182. 308 Baddiri, E., "Islam and the 1987 Constitution: An Issue on the Practice of Religion," 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978). 309 Id. at 208, citing Lewis, B., Islam and the West 3 (1993). 310 64 Phil 201 (1937). 311 101 Phil. 386 (1957). 312 Bernas, Constitutional Rights and Social Demands, Part II, p. 268. 313 106 Phil. 2 (1959). 314 Id. at 9-10. 315 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 225, Footnote 38. 316 319 U.S. 103. 317 234 SCRA 630 (1994). 318 493 U.S. 378 (1990). 319 106 Phil. 2 (1959). 320 106 Phil. 2 (1959), p. 10. 321 Id. at 11-12. 322 Id. at 14. 323 Id. at 25. 324 Id. at 24-25. 325 110 Phil 150. 326 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93 (1974); Gonzalez v. Central Azucarera de Tarlac Labor Union, 139 SCRA (1985). 327 Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54 (1974), p. 72. 328 Id. at 73. 329 64 Phil 201. 330 392 US 236. 331 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74. 332 Id. at 75. 333 Id. 334 61 SCRA 93 (1974). 335 80 SCRA 350 (1977). 336 139 SCRA 30 (1985). 337 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing Cantwell v. Connecticut, 310 U.S. 296. 338 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525. 339 German, et al. v. Barangan, et al., 135 SCRA 514 (1985). 340 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting Opinion of Justice Teehankee. 341 219 SCRA 256 (1993), March 1, 1993. 342 Id. at 270-271. 343 Id. at 271-272. 344 Id. at 272. 345 Id. at 272-273. 346 Id. at 270. 347 Id. at 269. 348 259 SCRA 529 (1996). 349 Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178. 350 Id., citing Cruz, I., Constitutional Law (1991), p. 544. 351 Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff, Speech, Harm and Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991). 352 Id. 353 Bernas, Constitutional Rights and Social Demands, Part II, p. 314. 354 This argument was a central theme in John Locke's A Letter Concerning Toleration, which strongly influenced the thinking of many Americans, including Jefferson and Madison. (Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse", University of Pennsylvania Law Review, vol. 140[1], November 1991, p. 149, 155). 355 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 233. 356 Id. at 234. 357 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 234. 358 An Act Appropriating the Sum of Sixty Thousand Pesos and Making the Same Available out of any Funds in the Insular Treasury not otherwise Appropriated for the Cost of Plates and Printing of Postage Stamps with New Designs, and for other Purposes. 359 Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206. 360 Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899). 361 104 SCRA 510 (1981).
300 301

86 SCRA 413 (1978). 367 U.S. 488 (1961). 364 Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429. 365 96 Phil. 417 (1955). 366 45 Am. Jur. 77. 367 96 Phil 417 (1955), p. 426. 368 Id. at 441, citing American authorities. 369 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755. 370 Nowak, J., Rotunda, R., and Young, J., supra, p. 1031. 371 Sherbert v. Verner, 374 U.S. 398 (1963), p. 409. 372 Walz v. Tax Commission, supra, p. 668. 373 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75. 374 Drakeman, D., supra, p. 127. 375 Buzzard, L. and Ericsson, S., supra, p. 75. 376 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), pp. 288-289. 377 Ang-Angco v. Castillo, 9 SCRA 619 (1963). 378 Martin, Statutory Construction (1979), p. 210. 379 Aruego, J., supra, pp. 331-337. 380 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, pp. 1550, 1552. 381 Aruego, J., supra, p. 337. 382 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), p. 153. 383 Id. at 153, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, p. 1539. 384 Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, pp. 1541-1543. 385 Aruego, J., supra, pp. 340-345. 386 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional Convention Record, vol. 10 (1967), p. 29. 387 Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp. 627-629. 388 Martin, supra, p. 218. 389 Aglipay v. Ruiz, supra, p. 206. 390 Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1 (1952), pp. 269-270. 391 Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, p. 18. 392 Bernas, J., Background paper for reconsideration of the religion provisions of the constitution (1971), pp. 41-43. 393 Tingson, J., Report of the Committee on Church and State of the 1971 Constitutional Convention Report, p. 5. 394 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406, citing Records of the Constitutional Commission, vol. II, pp. 193-194. 395 Records of the Constitutional Commission, vol. 4, p. 362. 396 Id. at 358. 397 Id. at 359. 398 Id. at 973. 399 Records of the Constitutional Commission, vol. 1, p. 102. 400 Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268. 401 Cruz, I., Constitutional Law (1995), p. 167. 402 Martinez, H., supra, p. 768-772. 403 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115, 169. 404 Martinez, H., supra, p. 773. 405 Neuhaus, R., supra, p. 630. 406 Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the University of Virginia, in The Complete Jefferson (Saul K. Padover ed., 1969), p. 957, 958. 407 Neuhaus, R., supra, p. 630. 408 Carter, S., supra, pp. 140-142. 409 Cruz, I., Constitutional Law (1995), p. 178. 410 Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339 SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997); Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil. 49 (1985). 411 68 SCRA 354 (1975). 412 305 SCRA 469 (1999). 413 Rachels, J., The Elements of Moral Philosophy (1986), p. 1. 414 Devlin, P., The Enforcement of Morals (1965), p. 10. 415 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992). 416 Devlin, P., supra, 13. 417 Neuhaus, R., supra, pp. 621, 624-625. 418 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115, 139. 419 Neuhaus, R., supra, pp. 624-625. 420 Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The Path of the Law, 10 Harv. L. Rev., 457, 459 (1897). 421 Id. at 247. 422 Greenwalt, K., supra, p. 272. 423 Buzzard, L. and Ericsson, S., supra, p. 31.
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Devlin, P., supra, pp. 19-20. Id. at 247. 426 210 SCRA 471 (1992). 427 Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12, citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31. 428 Devlin, P., supra, pp. 6-7. 429 Id. at 19. 430 Article 334 of the Revised Penal Code provides, viz: "Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium period. The concubine shall suffer the penalty of destierro." 431 Article 266-A of the Revised Penal Code. 432 Rule 110 of the Revised Rules of Criminal Procedure, as amended provides in relevant part, viz: "The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders." 433 Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186 (1956), pp. 202-203, citing Report of the Code Commission on the Proposed Civil Code of the Philippines, pp. 40-41. 434 Carter, S., supra, p. 138. 435 Sullivan, K., supra, pp. 197-198. 436 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) 437 Title Six of the Revised Penal Code is entitled Crimes against Public Morals and includes therein provisions on gambling and betting. (emphasis supplied) 438 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 customs or prejudicial to a third person with a right recognized by law. Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as 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" (emphasis supplied) 439 Article XIV, Section 3 provides in relevant part, viz: All educational institutions shall include the study of the Constitution as part of the curricula. 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) 440 To illustrate the distinction between public or secular morality and religious morality, we take the example of a judge. If the public morality of a society deems that the death penalty is necessary to keep society together and thus crystallizes this morality into law, a judge might find himself in a conflict between public morality and his religious morality. He might discern that after weighing all considerations, his religious beliefs compel him not to impose the death penalty as to do so would be immoral. If the judge refuses to impose the death penalty where the crime warrants it, he will be made accountable to the state which is the authority in the realm of public morality and be held administratively liable for failing to perform his duty to the state. If he refuses to act according to the public morality because he finds more compelling his religious morality where he is answerable to an authority he deems higher than the state, then his choice is to get out of the public morality realm where he has the duty to enforce the public morality or continue to face the sanctions of the state for his failure to perform his duty. See Griffin, L., "The Relevance of Religion to a Lawyer's Work: Legal Ethics", Fordham Law Review (1998), vol. 66(4), p. 1253 for a discussion of a similar dilemma involving lawyers. 441 Sullivan, K., supra, p. 196. 442 Smith, S., supra, pp. 184-185. For a defense of this view, see William P. Marshall, We Know It When We See It": The Supreme Court and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended criticism of this position, see Steven D. Smith, "Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the 'No Establishment' Test", 86 Mich. L. Rev. 266 (1987). 443 Ostrom, V., "Religion and the Constitution of the American Political System", Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville, Democracy in America (1945), p. 305. 444 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755. 445 Devlin, P., supra, p. 22. 446 329 U.S. 14 (1946). 447 Cleveland v. United States, 329 U.S. 14, p. 16. 448 Reynolds v. United States, supra, p. 164
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