Sunteți pe pagina 1din 2

BENEVOLENT NEUTRALITY-ACCOMODATION

(Re: Freedom of Religion)

Constitution
The 1987 Constitution of the Philippines declares: The separation of Church and State shall be
inviolable. (Article II, Section 6), and, 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. (Article III, Section
5).....

Benevolent neutrality-accommodation
The Supreme Court of the Philippines, ruling in 2003[1] and 2006[2] in the landmark case of
Estrada vs. Escritor, established the doctrine of benevolent neutrality-accommodation. The 2006
ruling, penned by former Chief Justice Puno, explained benevolent-neutrality in the context of
U.S. jurisprudence as follows:
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that
freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent
on the grace of legislature. Religious freedom is seen as a substantive right and not merely a
privilege against discriminatory legislation. With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of religion under certain circumstances.[2]
The ruling went on to cite a U.S. Supreme Court decision which had held that if prohibiting the
exercise of religion is merely the incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended.[3] Though concurring in the decision,
Justice O'Connor dissented strongly from the rationale, arguing that a compelling state interest
test should have been applied.[4]
Echoing Justice O'Connor's point from the U.S. case, the ruling in Estrada vs. Escritor went on
to quote her as having said that strict scrutiny is appropriate for free exercise challenges because
[t]he compelling interest test reflects the First Amendments mandate of preserving religious
liberty to the fullest extent possible in a pluralistic society.[2]
The ruling then declared Underlying the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it should be subject to strict scrutiny,
and summarized a three-part compelling state interest test by quoting Michael W. McConnell as
follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or practice is

necessary to the accomplishment of some important (or compelling) secular objective and that
it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and
the government does not, the plaintiff is entitled to exemption from the law or practice at issue.
In order to be protected, the claimants beliefs must be sincere, but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular
beliefs, however sincere and conscientious, do not suffice.[5]
The ruling noted that the then-current prevailing view under U.S. law is that there are no required
accommodation under the First Amendment, although it permits of legislative accommodations.
Considering Philippine jurisprudence, though, the ruling said:
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude that we have adoptedlock, stock and barrel
the religion clauses as embodied in the First Amendment, and therefore, the U.S. Courts
interpretation of the same. Unlike in the U.S. where legislative exemptions of religion had to be
upheld by the U.S. Supreme Court as constituting permissive accommodations, similar
exemptions for religion are mandatory accommodations under our own constitutions.[2]
These landmark decisions in Estrada vs. Escritor established that benevolent neutralityaccommodation is the framework by which free exercise cases must be decided in the
Philippines. This amounts to a requirement that any law which conflicts with a violator's
sincerely held religious beliefs must pass a strict scrutiny test in order to be enforceable.

Employment Division v. Smith see Findlaw.com


"As Justice Sandra Day O'Connor insisted in her strong dissent from the rationale in Smith, the
First Amendment was "enacted precisely to protect the rights of those whose religious practices
are not shared by the majority and may be viewed with hostility.... The compelling interest test
reflects the First Amendment's mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society. For the Court to deem this command a luxury, is to denigrate
[t]he very purpose of a Bill of Rights.", Flowers 2007, p. 161