civil article 40

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FIRST DIVISION[G.R. No. 132529. February 2, 2001] SUSAN NICDAO CARIÑO, petitioner, vs. SUSAN YEE CARIÑO, respondent. D E C I S I O NYNARES-SANTIAGO, J.:The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased

SPO4 Santiago S. Cariño, whose death benefits is now the subject of the controversy between the two Susanswhom he married.Before this Court is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals inCA-G.R. CV No. 51263, which affirmed in toto the decision of the Regional Trial Court of Quezon City, Branch 87, inCivil Case No. Q-93-18632.During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the first was on June 20,1969, with petitioner Susan Nicdao Cariño (hereafter referred to as Susan Nicdao), with whom he had twooffsprings, namely, Sahlee and Sandee Cariño; and the second was on November 10, 1992, with respondent SusanYee Cariño (hereafter referred to as Susan Yee), with whom he had no children in their almost ten yearcohabitation starting way back in 1982.In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonarytuberculosis. He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical andburial expenses. Both petitioner and respondent filed claims for monetary benefits and financial assistancepertaining to the deceased from various government agencies. Petitioner Susan Nicdao was able to collect a totalof P146,000.00 from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig, while respondent Susan Yeereceived a total of P21,000.00 from GSIS Life, Burial (GSIS) and burial (SSS).On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money againstpetitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the onehundred forty-six thousand pesos (P146,000.00) collectively denominated as death benefits which she(petitioner) received from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig. Despite service of summons,petitioner failed to file her answer, prompting the trial court to declare her in default.Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, andwithout first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased. She,however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at thefuneral of the deceased, where she met petitioner who introduced herself as the wife of the deceased. To bolster

her action for collection of sum of money, respondent contended that the marriage of petitioner and the deceasedis void ab initio because the same was solemnized without the required marriage license. In support thereof,respondent presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriagelicense number; and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, MetroManila, which reads This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and

SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true

copy or transcription of Marriage License number from the records of this archives. This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve. On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which

was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorneys fees

in the amount of P5,000.00, and costs of suit. IT IS SO ORDERED. On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court. Hence,the instant petition, contending that:I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURTTHAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR.

II.THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEADOF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE.



III.THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VSGSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILYCODE.

Under Article 40 of the Family Code, 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. Meaning, where the

absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, thesole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgmentdeclaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessaryto declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminalcase for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto,and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to thedetermination of the case. In such instances, evidence must be adduced, testimonial or documentary, to prove theexistence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely toan earlier final judgment of a court declaring such previous marriage void.It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriagesin this case, as the same is essential to the determination of who is rightfully entitled to the subject deathbenefits of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceasedwas solemnized in 1969, a valid marriage license is a requisite of marriage, and the absence thereof, subject tocertain exceptions, renders the marriage void ab initio.In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within themarriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validityof their marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and thedeceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila,their office has no record of such marriage license. In Republic v. Court of Appeals, the Court held that such acertification is adequate to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, asin the present case, the certification issued by the local civil registrar enjoys probative value, he being the officercharged under the law to keep a record of all data relative to the issuance of a marriage license.Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently

overcome. It then became the burden of petitioner to prove that their marriage is valid and that they secured therequired marriage license. Although she was declared in default before the trial court, petitioner could havesquarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner conveniently avoided the issue and chose to refrain from pursuing anargument that will put her case in jeopardy. Hence, the presumed validity of their marriage cannot stand.It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having beensolemnized without the necessary marriage license, and not being one of the marriages exempt from the marriagelicense requirement, is undoubtedly void ab initio.It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceasedis declared void ab initio, the death benefits under scrutiny would now be awarded to respondent Susan Yee. Toreiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicialdeclaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage,otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitionerSusan Nicdao does not validate the second marriage of the deceased with respondent Susan Yee. The fact remainsthat their marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitionerSusan Nicdao and the deceased void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise,void ab initio.One of the effects of the declaration of nullity of marriage is the separation of the property of the spousesaccording to the applicable property regime. Considering that the two marriages are void ab initio, the applicableproperty regime would not be absolute community or conjugal partnership of property, but rather, be governed bythe provisions of Articles 147 and 148 of the Family Code on Property Regime of Unions Without Marriage.



Under Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterousrelationships, relationships in a state of concubine, relationships where both man and woman are married to otherpersons, multiple alliances of the same married man, -

... [ O]nly the properties acquired by both of the parties through their actual joint contribution of money,

property, or industry shall be owned by them in common in proportion to their respective contributions ...In this property regime, the properties acquired by the parties through their actual joint contribution shall belong

to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too,contributions in the form of care of the home, children and household, or spiritual or moral inspiration, areexcluded in this regime.Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having beensolemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and thedeceased), the application of Article 148 is therefore in order.The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig,and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by thedeceased as a police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said thatshe contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are notowned in common by respondent and the deceased, but belong to the deceased alone and respondent has noright whatsoever to claim the same. By intestate succession, the said death benefits of the deceased shall passto his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs.This article applies to unions of parties who are legally capacitated and not barred by any impediment to contractmarriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license. Article147 of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as

husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be

owned by them in equal shares and the property acquired by both of them through their work or industry shall be

governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have

been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of

this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to

have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of

the family and of the household. x x x x x x x x x When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-

ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the

common children or their descendants, each vacant share shall belong to the respective surviving descendants. In

the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take

place upon termination of the cohabitation. In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during thecohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if onlyone party earned the wages and the other did not contribute thereto. Conformably, even if the disputed deathbenefits were earned by the deceased alone as a government employee, Article 147 creates a co-ownership inrespect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in thepresent case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject

death benefits under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with SusanNicdao.In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v.

Government Service Insurance System, where the Court awarded one-half of the retirement benefits of thedeceased to the first wife and the other half, to the second wife, holding that:... [ S]ince the defendants first marriage has not been dissolved or declared void the conjugal partnership

established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir

of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him.



Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest

in the husbands share in the property here in dispute.... And with respect to the right of the second wife, this Court

observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the

first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the

conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, [ t]he

only just and equitable solution in this case would be to recognize the right of the second wife to her share of one-

half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage. It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior andseparate judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determinedthe rights of the parties in accordance with their existing property regime.In Domingo v. Court of Appeals, however, the Court, construing Article 40 of the Family Code, clarified that a priorand separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage. That is, if a party who is previously married wishes to contract a second marriage, he or she has toobtain first a judicial decree declaring the first marriage void, before he or she could contract said secondmarriage, otherwise the second marriage would be void. The same rule applies even if the first marriage ispatently void because the parties are not free to determine for themselves the validity or invalidity or theirmarriage. However, for purposes other than to remarry, like for filing a case for collection of sum of moneyanchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary. All

that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage fromwhich his or her rights flow is in fact valid. Thereupon, the court, if material to the determination of the issuesbefore it, will rule on the status of the marriage involved and proceed to determine the rights of the parties inaccordance with the applicable laws and jurisprudence. Thus, in Niñal v. Bayadog, the Court explained:[ T]he 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 connoted that such final judgment need not be obtained only for purpose of remarriage. WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R. CV No. 51263 whichaffirmed the decision of the Regional Trial Court of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus attorneys fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil

Case No. Q-93-18632, is hereby DISMISSED. No pronouncement as to costs.SO ORDERED.Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur.Puno J., on official leave.TERRE VS. TERRE,211 SCRA 6

FACTS: [i]Complainant Dorothy Terre was married to her first cousin while respondent Jordan Terre is a member of thePhilippine Bar. Notwithstanding his knwoledge that she was married he courted her and since she was convince byhis explanation that her prior marriage was void she agreed to marry him.

Respondent disappered later complainant found out that Atty. Terre married a certain Helina Malicdem. She thenfiled an administrative case for disbarment who . Respodnent Terre claimsing that he had believed in good faith

that his prior marriage with complainant Dorothy Terre was null and void ab initio and that no action for a judicialdeclaration of nullity was necessary.[i]

ISSUE: Was there was no necessity for a judicial declaration of nullity of marriage?

HELD: [i]The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place,respondent has not rebutted complainant's evidence as to the basic fact which underscores that bad faith of



respondent Terre. In the second place, the pretended defense is the same argument by which he inveigledcomplainant into believing that her prior marriage or Merlito A. Bercenilla being incestuous and void ab initio(Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage withthe respondent. Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument rancounter to the prevailing case law of the supreme Court which holds that for purposes of determining whether aperson is legally free to contract a second marriage , a judicial declaration that the first marriage was null and void

ab initio is essential.

Even if we were to assume, arguendo merely, that respondent held that mistaken belief in good faith, the sameresult will follow. For it we are to hold Jordan Terre to his argument, his first marriage to complainant DorothyTerre must be deemed valid, with the result that his second marriage to Heline Malicdem must be regarded asbigamous and criminal in character.

Summary: Vda de Consuegra vs. Government Service Insurance System (GR L-28093, 30 January 1971)

Vda de Consuegra vs. Government Service Insurance System [GR L-28093, 30 January 1971]En Banc, Zaldivar (J): 10 concurFacts: The late Jose Consuegra, at the time of his death, was employed as a shop foreman of the office of theDistrict Engineer in the province of Surigao-del Norte. In his lifetime, Consuegra contracted two marriages, the first

with Rosario Diaz, solemnized in the parish church of San Nicolas de Tolentino, Surigao, Surigao, on 15 July 1937,out of which marriage were born two children, namely, Jose Consuegra, Jr. and Pedro Consuegra, but bothpredeceased their father; and the second, which was contracted in good faith while the first marriage wassubsisting, with Basilia Berdin, on 1 May 1957 in the same parish and municipality, out of which marriage wereborn seven children, namely, Juliana, Pacita, Maria Lourdes, Jose, Rodrigo, Lenida and Luz, * all surnamedConsuegra. Being a member of the Government Service Insurance System (GSIS) when Consuegra died on 26September 1965, the proceeds of his life insurance under policy 601801 were paid by the GSIS to Basilia Berdin andher children who were the beneficiaries named in the policy. Having been in the service of the government for22.5028 years, Consuegra was entitled to retirement insurance benefits in the sum of P6,304.47 pursuant toSection 12(c) of Commonwealth Act 186 as amended by Republic Acts 1616 and 3836. Consuegra did not designateany beneficiary who would receive the retirement insurance benefits due to him. Rosario Diaz, the widow by thefirst marriage, filed a claim with the GSIS asking that the retirement insurance benefits be paid to her as the only

legal heir of Consuegra, considering that the deceased did not designate any beneficiary with respect to hisretirement insurance benefits. Basilia Berdin and her children, likewise, filed a similar claim with the GSIS, assertingthat being the beneficiaries named in the life insurance policy of Consuegra, they are the only ones entitled toreceive the retirement insurance benefits due the deceased Consuegra. Resolving the conflicting claims, the GSISruled that the legal heirs of the late Jose Consuegra were Rosario Diaz, his widow by his first marriage who isentitled to one-half, or 8/16, of the retirement insurance benefits, on the one hand; and Basilia Berdin, his widowby the second marriage and their seven children, on the other hand, who are entitled to the remaining one-half, or8/16, each of them to receive an equal share of 1/16. Dissatisfied with the foregoing ruling and apportionmentmade by the GSIS, Basilia Berdin and her children filed on 10 October 1966 a petition for mandamus withpreliminary injunction in the Court of First Instance of Surigao del Norte (Special Proceeding 1720) naming asrespondents the GSIS, the Commissioner of Public Highways, the Highway District Engineer of Surigao del Norte,the Commissioner of Civil Service, and Rosario Diaz, praying that they (Basilia Berdin, et al.) be declared the legalheirs and exclusive beneficiaries of the retirement insurance of the late Jose Consuegra, and that writ of

preliminary injunction be issued restraining implementation of the adjudication made by the GSIS. On 7 March1967, the court of First Instance of Surigao rendered judgment, holding that when two women innocently and ingood faith are legally united in holy matrimony to the same man, they and their children, born of said wedlock, willbe regarded as legitimate children and each family be entitled to one half of the estate. The court thus declaredthat Basilia Berdin Vda. de Consuegra and Juliana, Pacita, Maria Lourdes, Jose Jr., Rodrigo, Lenida and Luis, allsurnamed Consuegra, beneficiary and entitled to 1/2 of the retirement benefit in the amount of P6,304.47) due tothe deceased Jose Consuegra from the GSIS or the amount of P3,152.235 to be divided equally among them in theproportional amount of 1/16 each. Likewise, Rosario Diaz Vda. de Consuegra is hereby declared beneficiary and



entitled to the other half of the retirement benefit of the late Jose Consuegra or the amount of P3,152.235. BasiliaBerdin and her children appealed (on purely questions of law).I ssue [1]: Whether Basilia Berdin Vda. de Consuegra. who were the beneficiaries named in the life insuranceshould automatically be considered the beneficiaries to receive the retirement insurance benefits, to the exclusionof Rosario Diaz, when the deceased Jose Consuegra failed to designate the beneficiaries in his retirementinsurance.

Held [1]: NO. If Consuegra had 22.5028 years of service in the government when he died on 26 September 1965, itfollows that he started in the government service sometime during the early part of 1943, or before 1943. In 1943,Commonwealth Act 186 was not yet amended, and the only benefits then provided for in said Act were those thatproceed from a life insurance. Upon entering the government service Consuegra became a compulsory member of the GSIS, being automatically insured on his life, pursuant to the provisions of CA 186 which was in force at thetime. During 1943 the operation of the GSIS was suspended because of the war, and the operation was resumedsometime in 1946. When Consuegra designated his beneficiaries in his life insurance he could not have intendedthose beneficiaries of his life insurance s also the beneficiaries of his retirement insurance because the provisionson retirement insurance under the GSIS came about only when CA 186 was amended by RA 660 on 16 June 1951.Hence, it cannot be said that cause Basilia Berdin et al. were designated beneficiaries Consuegra's life insurancethey automatically became beneficiaries also of his retirement insurance.I ssue [2]: Whether the GSIS and the trial court are correct in ruling that each of the wives who contracted marriageto the same man in good faith are each entitled to half of the retirement insurance benefits.Held [2]: YES. In the case of the proceeds of a life insurance, the same are paid to whoever is named thebeneficiary in the life insurance policy. As in the case of a life insurance provided for in the Insurance Act (Act 2427,as amended), the beneficiary in a life insurance under the GSIS may not necessarily be an heir of the insured. Theinsured in a life insurance may designate any person as beneficiary unless disqualified to be so under theprovisions of the Civil Code. And in the absence of any beneficiary named in the life insurance policy, the proceedsof the insurance will go to the estate of the insured. Retirement insurance is primarily intended for the benefit of the employee to provide for his old age, or incapacity, after rendering service in the government for a requirednumber of years. If the employee reaches the age of retirement, he gets the retirement benefits even to theexclusion of the beneficiary or beneficiaries named in his application for retirement insurance. The beneficiary of the retirement insurance can only claim the proceeds of the retirement insurance if the employee dies beforeretirement. If the employee failed or overlooked to state the beneficiary of his retirement insurance, theretirement benefits will accrue his estate and will be given to his legal heirs in accordance with law, as in the case

of a life insurance if no beneficiary is named in the insurance policy. The GSIS, therefore, had correctly acted whenit ruled that the proceeds of the retirement insurance of the late Jose Consuegra should divided equally betweenhis first living wife Rosario on the one hand, and his second wife Basilia Berdin his children by her, on the other;and the lower court did not commit error when it confirmed the action of the GSIS, it being accepted as a fact thatthe second marriage of Jose Consuegra to Basilia Berdin was contracted in good faith. The lower court hascorrectly applied the ruling of this Court in the case of Lao, et al. vs. Dee Tim, et al., 45 Phil. 739. In the recent caseof Gomez vs. Lipana, L-23214, June 30, 1970, the Court, in construing the rights of two women who were marriedto the same man a situation more or less similar to the case of Basilia Berdin and Rosario Diaz held "thatsince the defendant's first marriage has not been dissolved or declared void the conjugal partnership establishedby that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of herhusband under the new Civil Code, entitled to share in his estate upon his death should she survive him.Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interestin the husband's share in the property here in dispute. " And with respect to the right of the second wife, this

Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated whilethe first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as theconjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, "[t]heonly just and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugalpartnership of the first marriage."THIRD DIVISION[G.R. No. 137110. August 1, 2000] VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO TAN, respondent.



D E C I S I O NPANGANIBAN, J.:A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legallycontracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guiltyof bigamy. This principle applies even if the earlier union is characterized by statute as void.The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA) inCA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmedthe ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted hereinpetitioner of bigamy as follows:WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime

of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt,[the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months andfifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.Costs against accused.The FactsThe facts are quoted by Court of Appeals (CA) from the trial courts judgment, as follows: From the evidenceadduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan

got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which aMarriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused was single. There is no dispute either that at the time of the celebration of the wedding withcomplainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in amarriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City perMarriage Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father ArthurBaur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civilmarriage between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated byMsgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired byaccused with complainant Ma. Consuelo Tan.On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City

Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Courtagainst said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993.On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutors Office,

accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City,and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva wasdeclared null and void.Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second

marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously unitedin lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having beenlegally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime arepresent, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not beenlegally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according tothe Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent

marriage ha[d] all the essential requisites for validity. x x xWhile acknowledging the existence of the two marriage[s], accused posited the defense that his previous

marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the firstmarriage of accused.It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991,

accuseds prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated orany judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since nodeclaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear



that accused was a married man when he contracted such second marriage with complainant on June 27, 1991.He was still at the time validly married to his first wife.Ruling of the Court of AppealsAgreeing with the lower court, the Court of Appeals stated:Under Article 40 of the Family Code, 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. But here, the final

judgment declaring null and void accuseds previous marriage came not before the celebration of the secondmarriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes thecrime of bigamy is the act of any person who shall contract a second subsequent marriage before the formermarriage has been legally dissolved.Hence, this Petition.The IssuesIn his Memorandum, petitioner raises the following issues:A

Whether or not the element of previous legal marriage is present in order to convict petitioner.B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishingbigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt.The Courts RulingThe Petition is not meritorious.Main Issue:Effect of Nullity of Previous MarriagePetitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides: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 declaredpresumptively dead by means of a judgment rendered in the proper proceedings.The elements of this crime are as follows:1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse couldnot yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;4. That the second or subsequent marriage has all the essential requisites for validity.When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputedthat petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, hecontracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaintfor bigamy.Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid untilset aside by a competent court, he argues that a void marriage is deemed never to have taken place at all. Thus, heconcludes that there is no first marriage to speak of. Petitioner also quotes the commentaries

of former Justice

Luis Reyes that it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamycharge. But if the first marriage is voidable, it is not a defense.Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the

Family Code, but she points out that that declaration came only after the Information had been filed. Hence, bythen, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previousmarriage must be obtained before a person can marry for a subsequent time.We agree with the respondent.To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has beencharacterized as conflicting. In People v. Mendoza, a bigamy case involving an accused who married three times,the Court ruled that there was no need for such declaration. In that case, the accused contracted a secondmarriage during the subsistence of the first. When the first wife died, he married for the third time. The secondwife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab initio



because it had been contracted while the first marriage was still in effect. Since the second marriage wasobviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, theaccused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court inPeople v. Aragon, which involved substantially the same facts.But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v.

GSIS, Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the

Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the secondwife and her children, notwithstanding the manifest nullity of the second marriage. It held: And with respect tothe right of the second wife, this Court observes that although the second marriage can be presumed to be void ab

initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of

such nullity. In Tolentino v. Paras, however, the Court again held that judicial declaration of nullity of a void marriage was notnecessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his survivingspouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled infavor of the first wife, holding that the second marriage that he contracted with private respondent during thelifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is

necessary to establish the invalidity of a void marriage. In Wiegel v. Sempio-Diy, the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed anaction for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior

existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, thather first husband had previously been married to another woman. In holding that there was no need for suchevidence, the Court ruled: x x x There is likewise no need of introducing evidence about the existing priormarriage of her first husband at the time they married each other, for then such a marriage though void still needs,

according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still beregarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x.Subsequently, in Yap v. CA, the Court reverted to the ruling in People v. Mendoza, holding that there was no needfor such declaration of nullity.In Domingo v. CA, the issue raised was whether a judicial declaration of nullity was still necessary for the recoveryand the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: The FamilyCode has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity

of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement

for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his orher marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her firstmarriage, the person who marries again cannot be charged with bigamy.Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution forbigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on thebasis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon.In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse

shall be illegal and void from its performance, unless:(a) The first marriage was annulled or dissolved;(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without thespouse present having news of the absentee being alive, or the absentee being generally considered as dead and

believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage ascontracted being valid in either case until declared null and void by a competent court."The Court held in those two cases that the said provision plainly makes a subsequent marriage contracted by anyperson during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is

necessary to establish its invalidity, as distinguished from mere annulable marriages.The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of theFamily Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows:



ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basissolely of a final judgment declaring such marriage void.In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary.Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel . Thus, a Civil Law authority and member of the Civil Code Revision Commitee has observed:[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be

null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise,the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS,37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance,

no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil.

1033). In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need for a judicialdeclaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration isnow necessary before one can contract a second marriage. Absent that declaration, we hold that one may becharged with and convicted of bigamy.The present ruling is consistent with our pronouncement in Terre v. Terre, which involved an administrativeComplaint against a lawyer for marrying twice. In rejecting the lawyers argument that he was free to enter into asecond marriage because the first one was void ab initio, the Court ruled: for purposes of determining whether aperson is legally free to contract a second marriage, a judicial declaration that the first marriage was null and voidab initio is essential . The Court further noted that the said rule was cast into statutory form by Article 40 of theFamily Code. Significantly, it observed that the second marriage, contracted without a judicial declaration that thefirst marriage was void, was bigamous and criminal in character.Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his viewon the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicialdeclaration of the nullity of a void marriage before contracting a subsequent marriage:It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy

charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before

contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believesthat the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact,but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marryagain. x x x.

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only aftercomplainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while thefirst was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat,the crime had already been consummated by then. Moreover, his view effectively encourages delay in theprosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void andinvoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.Under the circumstances of the present case, he is guilty of the charge against him.Damages In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as itdenied her claim of damages and attorneys fees.Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative

relief from this Court. In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on thispoint, which we quote hereunder:We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent

victim that she claims to be; she was well aware of the existence of the previous marriage when she contractedmatrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason todoubt said testimonies.x x x x x x x x xIndeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief,

especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the



plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by thenalready living with another man.Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of

her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as itdid in this case, ironically because of her personal instigation. If there are indeed damages caused to herreputation, they are of her own willful making.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.SO ORDERED.Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.Vitug, J., see concurring and dissenting opinion.SECOND DIVISION[G.R. No. 145226. February 06, 2004]LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. D E C I S I O NQUISUMBING, J.:This petition for review on certiorari seeks to reverse the decision[1] dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment[2] 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 Cachoguilty 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 thispetition is the resolution[3] of the appellate court, dated September 25, 2000, denying Morigos motion forreconsideration.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 1974-1978).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 andafter 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, theymaintained 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 appellantwhich 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 Lumbago[4] 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 TrialCourt of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullityof 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 Information[5] 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 subsequentlydenied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which wasdocketed 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 beyondreasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging fromSeven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor asmaximum.SO ORDERED.[7]



In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was nulland void ab initio. Following Domingo v. Court of Appeals,[8] the trial court ruled that want of a valid marriageceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume thattheir marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of theirmarriage 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 forthe 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 incontracting the second marriage, the trial court stressed that following People v. Bitdu,[10] everyone is presumedto know the law, and the fact that one does not know that his act constitutes a violation of the law does notexempt 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 trialcourt rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio sinceno marriage ceremony actually took place. No appeal was taken from this decision, which then became final andexecutory.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 soughtto be punished by Article 349[12] of the Revised Penal Code is the act of contracting a second marriage before thefirst marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginningis 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 notbe accorded validity in the Philippines, pursuant to Article 15[13] of the Civil Code and given the fact that it iscontrary to public policy in this jurisdiction. Under Article 17[14] of the Civil Code, a declaration of public policycannot 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 asplit 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 firstmarriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of thenullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, nevermarried, 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 PENALIZEDUNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHEROR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENTWHEN 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 EVERYCIRCUMSTANCE 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 hisdefense of good faith is valid.



The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of theOntario court. He highlights the fact that he contracted the second marriage openly and publicly, which a personintent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material toa conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under theRevised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a completedefense. 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 istantamount 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 aconvenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,[18] whichheld that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article40[19] of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or notthe petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSGcounters that petitioners contention that he was in good faith because he relied on the divorce decree of theOntario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of hismarriage to Lucia.Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determinewhether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,[20] we laid down theelements 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, theRTC 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 marriageentered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directingthe 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 thepresence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance withArticles 3[22] and 4[23] 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 thedate of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declarationof the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, underthe eyes of the law, never married.[24] The records show that no appeal was taken from the decision of the trialcourt 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 fromthe beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logicalconclusion, 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 tospeak 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 alreadycelebrated. We held therein that:A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legallycontracted. 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: firstbefore a judge where a marriage certificate was duly issued and then again six months later before a priest inreligious 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. Suchact alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner mightbe held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequentmarriage.The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accusedand weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under thecircumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find thatwe need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is nowmoot 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 yCacho 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.

Republic of the PhilippinesSUPREME COURT ManilaEN BANCA.M. No. P-02-1651 June 22, 2006

(Formerly OCA I.P.I. No. 00-1021-P) ALEJANDRO ESTRADA, Complainant,

vs.SOLEDAD S. ESCRITOR, Respondent.R E S O L U T I O NPUNO, J.: While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands beforethe Court invoking her religious freedom and her Jehovah God in a bid to save her family united without thebenefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its power to regulate herbehavior and protect its interest in marriage and family and the integrity of the courts where respondent is anemployee. How the Court will tilt the scales of justice in the case at bar will decide not only the fate of respondentEscritor but of other believers coming to Court bearing grievances on their free exercise of religion. This casecomes to us from our remand to the Office of the Court Administrator on August 4, 2003.

1

I. THE PAST PROCEEDINGSIn a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes,

Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of respondent SoledadEscritor, court interpreter in said court, for living with a man not her husband, and having borne a child within thislive-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the image of thecourt, thus she should not be allowed to remain employed therein as it might appear that the court condones heract.

2Consequently, respondent was charged with committing "disgraceful and immoral conduct" under Book V,

Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code.3

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husbandhaving died in 1998.

4She admitted that she started living with Luciano Quilapio, Jr. without the benefit of marriage

more than twenty years ago when her husband was still alive but living with another woman. She also admitted



that she and Quilapio have a son.5

But as a member of the religious sect known as the Jehovahs Witnesses and theWatch Tower and Bible Tract Society, respondent asserted that their conjugal arrangement is in conformity withtheir religious beliefs and has the approval of her congregation.

6In fact, after ten years of living together, she

executed on July 28, 1991, a "Declaration of Pledging Faithfulness."7

For Jehovahs Witnesses, the Declaration allows members of the congregation who have been abandoned by theirspouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within

the congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of theirfaith, the Jehovahs congregation requires that at the time the declarations are executed, the couple cannot securethe civil authorities approval of the marital relationship because of legal impediments. Only couples who havebeen baptized and in good standing may execute the Declaration, which requires the approval of the elders of thecongregation. As a matter of practice, the marital status of the declarants and their respective spousescommission of adultery are investigated before the declarations are executed.

8Escritor and Quilapios declarations

were executed in the usual and approved form prescribed by the Jehovahs Witnesses,9

approved by elders of thecongregation where the declarations were executed,

10and recorded in the Watch Tower Central Office.

11

Moreover, the Jehovahs congregation believes that once all legal impediments for the couple are lifted, thevalidity of the declarations ceases, and the couple should legalize their union. In Escritors case, although she waswidowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated toremarry. Thus, their declarations remained valid.

12In sum, therefore, insofar as the congregation is concerned,

there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain

members in good standing in the congregation.By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugalarrangement does not constitute disgraceful and immoral conduct for which she should be held administrativelyliable,

13the Court had to determine the contours of religious freedom under Article III, Section 5 of the

Constitution, which provides, viz:Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. Thefree exercise and enjoyment of religious profession and worship, without discrimination or preference, shallforever be allowed. No religious test shall be required for the exercise of civil or political rights.A. RulingIn our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of thereligion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving religiousfreedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and

framework underlying the religion clauses in our Constitution; and (2) in deciding respondents plea of exemptionbased on the Free Exercise Clause (from the law with which she is administratively charged), it is the compellingstate interest test, the strictest test, which must be applied.

14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of whether respondent was to be held administratively liable for there was need to give the State the opportunity toadduce evidence that it has a more "compelling interest" to defeat the claim of the respondent to religiousfreedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to the Office of the CourtAdministrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene in the case so it can:

(a) examine the sincerity and centrality of respondents claimed religious belief and practice;(b) present evidence on the states "compelling interest" to override respondents religious belief andpractice; and(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondentsreligious freedom.

15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS COURTSHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMININGCLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled upon prior to theremand, and constitute "the law of the case" insofar as they resolved the issues of which framework and test areto be applied in this case, and no motion for its reconsideration having been filed.

16The only task that the Court is

left to do is to determine whether the evidence adduced by the State proves its more compelling interest. Thisissue involves a pure question of fact.B. Law of the case



Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case interpreting the religious clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the complainant,respondent nor the government has filed a motion for reconsideration assailing this ruling, the same has attainedfinality and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crasscontravention of elementary rules of procedure. Worse, insofar as it would overturn the parties right to rely uponour interpretation which has long attained finality, it also runs counter to substantive due process.

Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice Carpiosbelated attempts to disturb settled issues, and that he had timely presented his arguments, the results would stillbe the same.We review the highlights of our decision dated August 4, 2003.1. Old World AntecedentsIn our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses,because "one cannot understand, much less intelligently criticize the approaches of the courts and the politicalbranches 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."

17We delved into the

conception of religion from primitive times, when it started out as the stateitself, when the authority and power of the state were ascribed to God.

18Then, religion developed on its own and

became superior to the state,19

its subordinate,20

and even becoming an engine of state policy.21

We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of

church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in thename of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessedthe unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willingacceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred byambitious princes and emperors in exchange for religions invaluable service. This was the context in which theunique experiment of the principle of religious freedom and separation of church and state saw its birth inAmerican constitutional democracy and in human history.

22

Strictly speaking, the American experiment of freedom and separation was not translated in the First Amendment.That experiment had been launched four years earlier, when the founders of the republic carefully withheld fromthe new national government any power to deal with religion. As James Madison said, the national governmenthad no "jurisdiction" over religion or any "shadow of right to intermeddle" with it.

23

The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented the

ratification of the Constitution. The restriction had to be made explicit with the adoption of the religion clauses inthe First Amendment as they are worded to this day. Thus, the First Amendment did not take away or abridge anypower of the national government; its intent was to make express the absence of power.

24It commands, in two

parts (with the first part usually referred to as the Establishment Clause and the second part, the Free ExerciseClause), viz:Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictorypurposes. They have a single goalto promote freedom of individual religious beliefs and practices. In simplestterms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religiousbeliefs and practice, while the Establishment Clause prohibits government from inhibiting religious belief withrewards for religious beliefs and practices. In other words, the two religion clauses were intended to denygovernment the power to use either the carrot or the stick to influence individual religious beliefs and practices.

26

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as an

engine to promote state interests, to the principle of non-establishment to allow the free exercise of religion.2. Religion Clauses in the U.S. ContextThe Court then turned to the religion clauses interpretation and construction in the United States, not because weare bound by their interpretation, but because the U.S. religion clauses are the precursors to the Philippine religionclauses, although we have significantly departed from the U.S. interpretation as will be discussed later on.At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught withinconsistencies whether within a Court decision or across decisions. For while there is widespread agreementregarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to whatthese clauses specifically require, permit and forbid. No agreement has been reached by those who have studied



the religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress renders it difficultto ascertain its meaning.

27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion clauses.First is the standard of separation, which may take the form of either (a) strict separation or (b) the tamer versionof strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of governmentalneutrality. Although the latter form is not as hostile to religion as the former, both are anchored on the

Jeffersonian premise that a "wall of separation" must exist between the state and the Church to protect the statefrom the church.

28Both protect the principle of church-state separation with a rigid reading of the principle. On

the other hand, the second standard, the benevolent neutrality or accommodation, is buttressed by the view thatthe wall of separation is meant to protect the church from the state. A brief review of each theory is in order.a. Strict Separation and Strict Neutrality/SeparationThe Strict Separationist believes that the Establishment Clause was meant to protect the state from the church,and the states hostility towards religion allows no interaction between the two. According to this Jeffersonianview, an absolute barrier to formal interdependence of religion and state needs to be erected. Religiousinstitutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secularprograms to alleviate burdens the programs placed on believers.

29Only the complete separation of religion from

politics would eliminate the formal influence of religious institutions and provide for a free choice among politicalviews, thus a strict "wall of separation" is necessary.

30

Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary

practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return forhuge amounts of mostly indirect aid from religion.

31For example, less than twenty-four hours after Congress

adopted the First Amendments prohibition on laws respecting an establishment of religion, Congress decided toexpress its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of apresidential proclamation declaring a national day of Thanksgiving and Prayer.

32Thus, strict separationists are

caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.33

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the governmentalneutrality theory) finds basis in Everson v. Board of Education,

34where the Court declared that Jeffersons "wall of

separation" encapsulated the meaning of the First Amendment. However, unlike the strict separationists, the strictneutrality view believes that the "wall of separation" does not require the state to be their adversary. Rather, thestate must be neutral in its relations with groups of religious believers and non-believers. "State power is no moreto be used so as to handicap religions than it is to favor them."

35The strict neutrality approach is not hostile to

religion, but it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secularcriteria may be the basis of government action. It does not permit, much less require, accommodation of secularprograms to religious belief.

36

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, itcould lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by JusticeGoldberg in his concurring opinion in Abington School District v. Schempp,

37strict neutrality could lead to "a

brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious" which isprohibited by the Constitution.

38Professor 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. TheFramers, 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 orscience. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the [U.S.]

Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.39 Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, isthat while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-stateseparation," in real life, church and state are not and cannot be totally separate. This is all the more true incontemporary times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at many points.

40

b. Benevolent Neutrality/AccommodationThe theory of benevolent neutrality or accommodation is premised on a different view of the "wall of separation,"associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect



the state from the church, the wall is meant to protect the church from the state.41

This doctrine was expressed inZorach v. Clauson,

42which held, viz:

The First Amendment, however, does not say that in every and all respects there shall be a separation of Churchand State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or unionor dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion wouldbe 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 ourlegislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations makingThanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references to theAlmighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. Afastidious atheist or agnostic could even object to the supplication with which the Court opens each session: "Godsave the United States and this Honorable Court."xxx xxx xxxWe are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worshipas one chooses. . . When the state encourages religious instruction or cooperates with religious authorities byadjusting the schedule of public events, it follows the best of our traditions. For it then respects the religiousnature of our people and accommodates the public service to their spiritual needs. To hold that it may not wouldbe 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 tothrow its weight against efforts to widen their effective scope of religious influence.

43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United States asshown 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 "onenation under God" in the official pledge of allegiance to the flag; the Supreme Courts time-honored practice of opening oral argument with the invocation "God save the United States and this Honorable Court"; and thepractice of Congress and every state legislature of paying a chaplain, usually of a particular Protestantdenomination, to lead representatives in prayer. These practices clearly show the preference for one theologicalviewpointthe existence of and potential for intervention by a godover the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with

strong moral dimension.44

Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S. Courtdeclaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in dailyprayers,

45or requiring employers to pay workers compensation when the resulting inconsistency between work

and Sabbath leads to discharge;46

for government to give money to religiously-affiliated organizations to teachadolescents about proper sexual behavior;

47or to provide religious school pupils with books;

48or bus rides to

religious schools;49

or with cash to pay for state-mandated standardized tests.50

(1) Legislative Acts and the Free Exercise ClauseAs with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in relationto governmental action, almost invariably in the form of legislative acts.Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional,either because it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether onesubscribes to the separationist approach or the benevolent neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular purpose and general applicability,but may incidentally or inadvertently aid or burden religious exercise. Though the government action is notreligiously motivated, these laws have a "burdensome effect" on religious exercise.The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be allowed, not to promote the governments favored form of religion, but to allow individuals andgroups to exercise their religion without hindrance. The purpose of accommodations is to remove a burden on, orfacilitate the exercise of, a persons or institutions religion. As Justice Brennan explained, the "government [may]take religion into accountto exempt, when possible, from generally applicable governmental regulationindividuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state



involvement an atmosphere in which voluntary religious exercise may flourish."51

In the ideal world, the legislaturewould recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened may turn tothe courts for protection.

52

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a faciallyneutral law, but an exemption from its application or its "burdensome effect," whether by the legislature or the

courts.53

Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of thefacially neutral law that has a "burdensome" effect.

54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and SmithThe pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case of Sherbert v. Verner,

55which ruled that state regulation that indirectly restrains or punishes religious belief or

conduct must be subjected to strict scrutiny under the Free Exercise Clause.56

According to Sherbert, when a law of general application infringes religious exercise, albeit incidentally, the state interest sought to be promoted mustbe so paramount and compelling as to override the free exercise claim. Otherwise, the Court itself will carve outthe exemption.In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as heremployment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. Shesought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefitscould withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religiousprinciples of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina SupremeCourt is to withstand appellants constitutional challenge, it must be either because her disqualification as abeneficiary represents no infringement by the State of her constitutional right of free exercise, or because anyincidental burden on the free exercise of appellants religion may be justified by a "compelling state interest in theregulation of a subject within the States constitutional power to regulate. . . ."

57(emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rationalrelationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highlysensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion forpermissible limitation."

58The Court found that there was no such compelling state interest to override Sherberts

religious liberty. It added that even if the state could show that Sherberts exemption would pose seriousdetrimental 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 infringingreligious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert anexemption from the Saturday work requirement that caused her disqualification from claiming the unemploymentbenefits. The Court reasoned that upholding the denial of Sherberts benefits would force her to choose betweenreceiving 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 firmlyestablished the exemption doctrine,

59viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when general lawsconflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interest"intervenes.Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a sincerelyheld religious belief or practice, the state must justify the burden by demonstrating that the law embodies acompelling interest, that no less restrictive alternative exists, and that a religious exemption would impair the

states ability to effectuate its compelling interest. As in other instances of state action affecting fundamentalrights, negative impacts on those rights demand the highest level of judicial scrutiny. After Sherbert, this strictscrutiny balancing test resulted in court-mandated religious exemptions from facially-neutral laws of generalapplication whenever unjustified burdens were found.

60

Then, in the 1972 case of Wisconsin v. Yoder,61

the U.S. Court again ruled that religious exemption was in order,notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the Courtoverturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The Court,in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:



It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim thatsuch attendance interferes with the practice of a legitimate religious belief, it must appear either that the Statedoes not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficientmagnitude to override the interest claiming protection under the Free Exercise Clause. Long before there wasgeneral acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixedthe 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 relatingto religion have been zealously protected, sometimes even at the expense of other interests of admittedly highsocial importance. . .The essence of all that has been said and written on the subject is that only those interests of the highest orderand those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection of theFree Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject toregulation by the States in the exercise of their undoubted power to promote the health, safety, and generalwelfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiouslygrounded conduct must often be subject to the broad police power of the State is not to deny that there are areasof conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the Stateto control, even under regulations of general applicability. . . .This case, therefore, does not become easier becauserespondents were convicted for their "actions" in refusing to send their children to the public high school; in this

context belief and action cannot be neatly confined in logic-tight compartments. . . 62 The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject toheightened scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b)heightened scrutiny or compelling interest test governed cases where the burden was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit;

63and (c) the Court could carve out accommodations or

exemptions from a facially neutral law of general application, whether general or criminal.The Sherbert-Yoder doctrine had five main components. First, action was protectedconduct beyond speech,press, or worship was included in the shelter of freedom of religion. Neither Sherberts refusal to work on theSabbath nor the Amish parents refusal to let their children attend ninth and tenth grades can be classified asconduct protected by the other clauses of the First Amendment. Second, indirect impositions on religious conduct,such as the denial of twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well as direct

restraints, such as the criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the twocases indicate, the protection granted was extensive. Only extremely strong governmental interests justifiedimpingement on religious conduct, as the absolute language of the test of the Free Exercise Clause suggests.

64

Fourth, the strong language was backed by a requirement that the government provide proof of the importantinterest at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, indetermining the injury to the governments interest, a court was required to focus on the effect that exemptingreligious claimants from the regulation would have, rather than on the value of the regulation in general. Thus,injury to governmental interest had to be measured at the margin: assuming the law still applied to all others,what would be the effect of exempting the religious claimant in this case and other similarly situated religiousclaimants in the future? Together, the fourth and fifth elements required that facts, rather than speculation, had tobe presented concerning how the governments interest would be harmed by excepting religious conduct from thelaw being challenged.

65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to

prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation aboutthe effects of a decision adverse to those interests nor accepting that those interests would be defined at a higherlevel of generality than the constitutional interests on the other side of the balance.

66

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection affordedto religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular

justification was necessary to uphold public policies that collided with religious practices. Although the members of the U.S. Court often disagreed over which governmental interests should be considered compelling, therebyproducing dissenting and separate opinions in religious conduct cases, this general test established a strong



presumption in favor of the free exercise of religion.67

Most scholars and courts agreed that under Sherbert andYoder, the Free Exercise Clause provided individuals some form of heightened scrutiny protection, if not always acompelling interest one.

68The 1990 case of Employment Division, Oregon Department of Human Resources v.

Smith,69

drastically changed all that.Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenicsubstance. Specifically, individuals challenged the states determination that their religious use of peyote, which

resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemploymentcompensation benefits.

70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption froman otherwise valid law. Scalia said that "[w]e have never held that an individuals religious beliefs excuse him fromcompliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, therecord of more than a century of our free exercise jurisprudence contradicts that proposition."

71Scalia thus

declared "that the right of free exercise does not relieve an individual of the obligation to comply with a valid andneutral law of general applicability of the ground that the law proscribes (or prescribes) conduct that his religionprescribes (or proscribes)."

72

Justice Scalias opinion then reviewed the cases where free exercise challenges had been upheldsuch asCantwell, Murdock, Follet, Pierce, and Yoderand said that none involved the free exercise clause claims alone. Allinvolved "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speechand of the press, or the right of parents to direct the education of their children."

73The Court said that Smith was

distinguishable because it did not involve such a "hybrid situation," but was a free exercise claim "unconnectedwith any communicative activity or parental right."

74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of unemploymentbenefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that "[e]ven if we were inclinedto breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to requireexemptions from a generally applicable criminal law."

75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability thatburden religion. Justice Scalia said that "[p]recisely because we are a cosmopolitan nation made up of people of almost conceivable religious preference, and precisely because we value and protect that religious divergence, wecannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order." The Court said that those seeking religiousexemptions from laws should look to the democratic process for protection, not the courts.

76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling justification approach were abandoned for evaluating laws burdening religion; neutral laws of general applicabilityonly have to meet the rational basis test, no matter how much they burden religion.

77

Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test,asserting that "(t)he compelling state interest test effectuates the First Amendments command that religiousliberty is an independent liberty, that it occupies a preferred position, and that the Court will not permitencroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmentinterest of the highest order."

78She 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 fullestextent possible in a pluralistic society."

79

Justice OConnor also disagreed with the majoritys description of prior cases and especially its leaving theprotection of minority religions to the political process. She said that, "First Amendment was enacted precisely toprotect the rights of those whose religious practice are not shared by the majority and may be viewed with

hostility." 80 Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissentingJustices agreed with Justice OConnor that the majority had mischaracterized precedents, such as in describingYoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also argued that strictscrutiny should be used in evaluating government laws burdening religion.

81

Criticism of Smith was intense and widespread.82

Academics, Justices, and a bipartisan majority of Congress noisilydenounced the decision.

83Smith has the rather unusual distinction of being one case that is almost universally

despised (and this is not too strong a word) by both the liberals and conservatives.84

Liberals chasten the Court forits hostility to minority faiths which, in light of Smiths general applicability rule, will allegedly suffer at the hands of



the majority faith whether through outright hostility or neglect. Conservatives bemoan the decision as an assaulton religious belief leaving religion, more than ever, subject to the caprice of an ever more secular nation that isincreasingly hostile to religious belief as an oppressive and archaic anachronism.

85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallowunderstanding of free exercise jurisprudence.

86First, the First amendment was intended to protect minority

religions from the tyranny of the religious and political majority.87

Critics of Smith have worried about religious

minorities, who can suffer disproportionately from laws that enact majoritarian mores.88

Smith, in effect wouldallow discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lacklegislative clout,

89contrary to the original theory of the First Amendment.

90Undeniably, claims for judicial

exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtuallywiped out their judicial recourse for exemption.

91Second, Smith leaves too much leeway for pervasive welfare-

state regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinderobservance just as effectively as those that target religion.

92Government impairment of religious liberty would

most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberateregulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not affordprotection to inadvertent interference, it would be left almost meaningless.

93Third, the Reynolds-Gobitis-Smith

94

doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply heldfundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucraticobjective. This is especially true when there are alternative approaches for the state to effectively pursue its

objective without serious inadvertent impact on religion.95 At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and limitingthe term "religion" in todays pluralistic society, and (2) the belief that courts have no business determining thesignificance of an individuals religious beliefs. For the Smith Court, these two concerns appear to lead to theconclusion that the Free Exercise Clause must protect everything or it must protect virtually nothing. As a result,the Court perceives its only viable options are to leave free exercise protection to the political process or to allow a"system in which each conscience is a law unto itself."

96The Courts characterization of its choices have been

soundly rejected as false, viz:If one accepts the Courts assumption that these are the only two viable options, then admittedly, the Court has astronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply and thisshould not be applied at all. The Constitution does not give the judiciary the option of simply refusing to interpretits provisions. The First Amendment dictates that free exercise of "religion" must be protected. Accordingly, the

Constitution compels the Court to struggle with the contours of what constitutes "religion." There is noconstitutional opt-out provision for constitutional words that are difficult to apply.Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area of middle ground exists between the Courts two opposing alternatives for free exercise jurisprudence.Unfortunately, this middle ground requires the Court to tackle difficult issues such as defining religion and possiblyevaluating the significance of a religious belief against the importance of a specific law. The Court describes theresults of this middle ground where "federal judges will regularly balance against the importance of general lawsthe significance of religious practice," and then dismisses it as a "parade of horribles" that is too "horrible tocontemplate."It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religiousindividuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance ratherthan acquiesce to the Courts approach of simply refusing to grant any constitutional significance to their beliefs atall. If the Court is concerned about requiring lawmakers at times constitutionally to exempt religious individuals

from statutory provisions, its concern is misplaced. It is the lawmakers who have sought to prevent the Court fromdismantling the Free Exercise Clause through such legislation as the [Religious Freedom Restoration Act of 1993],and in any case, the Court should not be overly concerned about hurting legislatures feelings by requiring theirlaws to conform to constitutional dictates. Perhaps the Court is concerned about putting such burden on judges. If so, it would truly be odd to say thatrequiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should beexpected to fulfill.

97

Parenthetically, Smiths characterization that the U.S. Court has "never held that an individuals religious beliefsexcuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate"an



assertion which Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply criticized even implicitlyby its supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by opposing thearguments that the Court was wrong as a matter of original meaning [of the religion clauses] or that the decisionconflicted with precedent [i.e. the Smith decision made shocking use of precedent]those points were oftenconceded.

98

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder, by

asserting that these were premised on two constitutional rights combinedthe right of parents to direct theeducation of their children and the right of free exercise of religion. Under the Courts opinion in Smith, the right of free exercise of religion standing alone would not allow Amish parents to disregard the compulsory schoolattendance law, and under the Courts opinion in Yoder, parents whose objection to the law was not religiouswould also have to obey it. The fatal flaw in this argument, however, is that if two constitutional claims will fail onits own, how would it prevail if combined?

99As for Sherbert, the Smith Court attempted to limit its doctrine as

applicable only to denials of unemployment compensation benefits where the religiously-compelled conduct thatleads to job loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was sodamaging in its effect: the religious person was more likely to be entitled to constitutional protection when forcedto choose between religious conscience and going to jail than when forced to choose between religious conscienceand financial loss.

100

Thus, the Smith decision elicited much negative public reaction especially from the religious community, andcommentaries insisted that the Court was allowing the Free Exercise Clause to disappear.

101So much was the

uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.

102The RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise claims. Indeed,

the findings section of the Act notes that Smith "virtually eliminated the requirement that the government justifyburdens on religious exercise imposed by laws neutral toward religion."

103The Act declares that its purpose is to

restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee itsapplication in all cases where free exercise of religion is substantially burdened; and to provide a claim of defenseto a person whose religious exercise is substantially burdened by government.

104The RFRA thus sought to overrule

Smith and make strict scrutiny the test for all free exercise clause claims.105

In the City of Boerne v. Flores,

106the U.S. Supreme Court declared the RFRA unconstitutional, ruling that Congress

had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled that Congress isempowered to enact laws "to enforce the amendment," but Congress is not "enforcing" when it creates newconstitutional rights or expands the scope of rights.

107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for theconstitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:"Values that are protected against governmental interference through enshrinement in the Bill of Rights are notthereby banished from the political process. Just as society believes in the negative protection accorded to thepress by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printedword, so also a society that believes in the negative protection accorded to religious belief can be expected to besolicitous of that value in its legislation as well."By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress.Contrary to the Courts characterization of the RFRA as a kind of usurpation of the judicial power to say what theConstitution means, the law offered no definition of Free Exercise, and on its face appeared to be a proceduralmeasure establishing a standard of proof and allocating the duty of meeting it. In effect, the Court ruled thatCongress had no power in the area of religion. And yet, Free Exercise exists in the First Amendment as a negativeon Congress. The power of Congress to act towards the states in matters of religion arises from the Fourteenth

Amendment. 108 From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to giveaccommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if weconsider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grosslyinconsistent with the importance placed by the framers on religious faith. Smith is dangerous precedent because itsubordinates fundamental rights of religious belief and practice to all neutral, general legislation. Sherbertrecognized the need to protect religious exercise in light of the massive increase in the size of government, theconcerns within its reach, and the number of laws administered by it. However, Smith abandons the protection of religious exercise at a time when the scope and reach of government has never been greater. It has been pointed



out that Smith creates the legal framework for persecution: through general, neutral laws, legislatures are nowable to force conformity on religious minorities whose practice irritate or frighten an intolerant majority.

109

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the FreeExercise Clause. Smith left religious freedom for many in the hands of the political process, exactly where it wouldbe if the religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of Rights, thereligion clauses of the First Amendment are most important to those who cannot prevail in the political process.

The Court in Smith ignores the fact that the protections found in the Bill of Rights were deemed too important toleave to the political process. Because mainstream religions generally have been successful in protecting theirinterests through the political process, it is the non-mainstream religions that are adversely affected by Smith. Inshort, the U.S. Supreme Court has made it clear to such religions that they should not look to the First Amendmentfor religious freedom.

110

(3) Accommodation under the Religion ClausesA free exercise claim could result to three kinds of accommodation: (a) those which are found to beconstitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary orlegislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause;and (c) those which the religion clauses prohibit.

111

Mandatory accommodation results when the Court finds that accommodation is required by the Free ExerciseClause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all three conditionsof the compelling interest test are met, i.e, a statute or government action has burdened claimants free exercise

of religion, and there is no doubt as to the sincerity of the religious belief; the state has failed to demonstrate aparticularly important or compelling governmental goal in preventing an exemption; and that the state has failedto demonstrate that it used the least restrictive means. In these cases, the Court finds that the injury to religiousconscience is so great and the advancement of public purposes is incomparable that only indifference or hostilitycould explain a refusal to make exemptions. Thus, if the states objective could be served as well or almost as wellby granting an exemption to those whose religious beliefs are burdened by the regulation, the Court must grantthe exemption. The Yoder case is an example where the Court held that the state must accommodate the religiousbeliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case isanother example where the Court held that the state unemployment compensation plan must accommodate thereligious convictions of Sherbert.

112

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate religiousinterests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the constitutionality of

tax exemption given by New York to church properties, but did not rule that the state was required to provide taxexemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no meansco-extensive with the noninterference mandated by the Free Exercise Clause."

113Other examples are Zorach v.

Clauson,114

allowing released time in public schools and Marsh v. Chambers,115

allowing payment of legislativechaplains from public funds. Parenthetically, the Court in Smith has ruled that this is the only accommodationallowed by the Religion Clauses.Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislativeaccommodation runs afoul of the establishment or the free exercise clause, it results to a prohibitedaccommodation. In this case, the Court finds that establishment concerns prevail over potential accommodationinterests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that allclaims for free exercise exemptions are valid.

116An example where accommodation was prohibited is McCollum v.

Board of Education,117

where the Court ruled against optional religious instruction in the public school premises.118

Given that a free exercise claim could lead to three different results, the question now remains as to how the Court

should determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test which ismost in line with the benevolent neutrality-accommodation approach.Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry outones duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religiousfreedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religionlooked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion undercertain circumstances.Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free exercisedisputes arise commonly when a law that is religiously neutral and generally applicable on its face is argued to



prevent or burden what someones religious faith requires, or alternatively, requires someone to undertake an actthat faith would preclude. In essence, then, free exercise arguments contemplate religious exemptions fromotherwise general laws.

119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the FirstAmendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.

120

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.121

In its application, the compelling state interest test follows a three-step process, summarized as follows:If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, theburden 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 thatobjective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemptionfrom the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they neednot necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religiousdenomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs, howeversincere and conscientious, do not suffice.

122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationistapproach, or the benevolent neutrality approach. The benevolent neutrality approach has also further been splitby the view that the First Amendment requires accommodation, or that it only allows permissible legislative

accommodations. The current prevailing view as pronounced in Smith, however, is that that there are no requiredaccommodation under the First Amendment, although it permits of legislative accommodations.3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practicea. US Constitution and jurisprudence vis-à-vis Philippine ConstitutionBy juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately clearthat one cannot simply conclude that we have adoptedlock, stock and barrelthe religion clauses as embodiedin the First Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in the U.S. wherelegislative exemptions of religion had to be upheld by the U.S. Supreme Court as constituting permissiveaccommodations, similar exemptions for religion are mandatory accommodations under our own constitutions.Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church property,

123salary of

religious officers in government institutions,124

and optional religious instruction.125

Our own preamble alsoinvokes the aid of a divine being.

126These constitutional provisions are wholly ours and have no counterpart in the

U.S. Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting theseconstitutions, manifested their adherence to the benevolent neutrality approach that requires accommodations ininterpreting the religion clauses.

127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that the1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution is amisreading of the ponencia. What the ponencia pointed out was that even as early as 1935, or more than threedecades before the U.S. Court could validate the exemption in Walz as a form or permissible accommodation, wehave already incorporated the same in our Constitution, as a mandatory accommodation.There is no ambiguity with regard to the Philippine Constitutions departure from the U.S. Constitution, insofar asreligious accommodations are concerned. It is indubitable that benevolent neutrality-accommodation, whethermandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution.

128As stated in

our Decision, dated August 4, 2003:The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the

First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the religious clausesalso continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between thetwo streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that thePhilippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and thetwo identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or abenevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one mightconclude that as the history of the First Amendment as narrated by the Court in Everson supports the separationistapproach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauseshistory. 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 andwere never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in allthree constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as awhole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to allof them full force and effect. From this construction, it will be ascertained that the intent of the framers was to

adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and theenforcement of this intent is the goal of construing the constitution.

129[citations omitted]

We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of the religion clauses toeffectively deny accommodations on the sole basis that the law in question is neutral and of general application.For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has never held that "anindividuals religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conductthat the State is free to regulate," our own Constitutions have made significant changes to accommodate andexempt religion. Philippine jurisprudence shows that the Court has allowed exemptions from a law of generalapplication, in effect, interpreting our religion clauses to cover both mandatory and permissiveaccommodations.

130

To illustrate, in American Bible Society v. City of Manila,131

the Court granted to plaintiff exemption from a law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance to securea mayors permit and a municipal license as ordinarily required of those engaged in the business of general

merchandise under the citys ordinances. Plaintiff argued that this amounted to "religious censorship andrestrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles andother religious literature to the people of the Philippines." Although the Court categorically held that thequestioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said "merchandise" for profit, it also ruled that applying the ordinance to plaintiff and requiring it to securea license and pay a license fee or tax would impair its free exercise of religious profession and worship and its rightof dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control orsuppress its enjoyment." The decision states in part, viz:The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with itthe right to disseminate religious information. Any restraint of such right can only be justified like other restraintsof freedom of expression on the grounds that there is a clear and present danger of any substantive evil which theState has the right to prevent. (citations omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of Schools.132

Thecase involved several Jehovahs Witnesses who were expelled from school for refusing to salute the flag, sing thenational anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving thereligious freedom issue, a unanimous Court overturned an earlier ruling denying such exemption,

133using the

"grave and imminent danger" test, viz:The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the lateChief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is theexistence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety,public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent.Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.

134

(emphases supplied)In these two cases, the Court itself carved out an exemption from a law of general application, on the strengthdirectly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde RopeWorkers Union

135is an example of the application of Mr. Justice Carpios theory of permissive accommodation,

where religious exemption is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No.3350 was questioned. The said R.A. exempt employees from the application and coverage of a closed shopagreementmandated in another lawbased on religious objections. A unanimous Court upheld theconstitutionality of the law, holding that "government is not precluded from pursuing valid objectives secular incharacter even if the incidental result would be favorable to a religion or sect." Interestingly, the secular purposeof the challenged law which the Court upheld was the advancement of "the constitutional right to the free exerciseof religion."

136



Having established that benevolent neutrality-accommodation is the framework by which free exercise cases mustbe decided, the next question then turned to the test that should be used in ascertaining the limits of the exerciseof religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in casesinvolving purely conduct based on religious belief, as in the case at bar, the compelling state interest test, isproper, viz:Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the

Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did notemploy it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona casethen pronounced that the test of permissibility of religious freedom is whether it violates the establishedinstitutions of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well asthe doctrine that a law of general applicability may burden religious exercise provided the law is the leastrestrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compellingstate interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the "graveand immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back tothe "clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the caseswhich employed the "clear and present danger" or "grave and immediate danger" test involved, in one form oranother, religious speech as this test is often used in cases on freedom of expression. On the other hand, theGerona 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 easilydiscernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is notcongruent 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 properwhere conduct is involved for the whole gamut of human conduct has different effects on the states interests:some effects may be immediate and short-term while others delayed and far-reaching. A test that would protectthe interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary.However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a

fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is anappeal to a higher sovereignty. The entire constitutional order of limited government is premised upon anacknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a

just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangeringparamount interests can limit this fundamental right. A mere balancing of interests which balances a right with justa colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevailover the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compellingone, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they aredestroyed. In determining which shall prevail between the states interest and religious liberty, reasonablenessshall be the guide. The "compelling state interest" serves the purpose of revering religious liberty while at thesame time affording protection to the paramount interests of the state. This was the test used in Sherbert whichinvolved 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 bepreserved.

137(citations omitted)

At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the applicability of thebenevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test needs to beapplied by the Court in determining the validity of a free exercise claim of exemption as made here by Escritor."This assertion is inconsistent with the position negating the benevolent neutrality or accommodation approach. If it were true, indeed, that the religion clauses do not require accommodations based on the free exercise of religion, then there would be no need for a test to determine the validity of a free exercise claim, as any and allclaims for religious exemptions from a law of general application would fail.



Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and mandatoryaccommodation is more critically important in analyzing free exercise exemption claims because it forces the Courtto confront how far it can validly set the limits of religious liberty under the Free Exercise Clause, rather thanpresenting the separation theory and accommodation theory as opposite concepts, and then rejecting relevantand instructive American jurisprudence (such as the Smith case) just because it does not espouse the theoryselected." He then asserts that the Smith doctrine cannot be dismissed because it does not really espouse the

strict neutrality approach, but more of permissive accommodation.Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith is that only legislativeaccommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religionexemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actuallyespouses the theory of accommodation or benevolent neutrality, the accommodation is limited to the permissive,or legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious exemptionsdirectly under the Free Exercise Clause because Smith does not recognize such exemption. Moreover, Mr. JusticeCarpios advocacy of the Smith doctrine would effectively render the Free Exercise protectiona fundamentalright under our Constitutionnugatory because he would deny its status as an independent source of right.b. The Compelling State Interest TestAs previously stated, the compelling state interest test involves a three-step process. We explained this process indetail, by showing the questions which must be answered in each step, viz:First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts

often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because theFree Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of theclaimants belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. xxxxxx xxx xxxSecond, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of religiousliberty?" In this step, the government has to establish that its purposes are legitimate for the state and that theyare compelling. Government must do more than assert the objectives at risk if exemption is given; it must preciselyshow how and to what extent those objectives will be undermined if exemptions are granted. xxxxxx xxx xxxThird, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means possibleso that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?" Theanalysis 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 onreligious liberties xxx.

138[citations omitted]

Again, the application of the compelling state interest test could result to three situations of accommodation: First,mandatory accommodation would result if the Court finds that accommodation is required by the Free ExerciseClause. Second, if the Court finds that the State may, but is not required to, accommodate religious interests,permissive accommodation results. Finally, if the Court finds that that establishment concerns prevail overpotential accommodation interests, then it must rule that the accommodation is prohibited.One of the central arguments in Mr. Justice Carpios dissent is that only permissive accommodation can carve outan exemption from a law of general application. He posits the view that the law should prevail in the absence of alegislative exemption, and the Court cannot make the accommodation or exemption.Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases of American BibleSociety, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but also mandatory

accommodations. Thus, an exemption from a law of general application is possible, even if anchored directly on aninvocation of the Free Exercise Clause alone, rather than a legislative exemption.Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted anaccommodation/exemption to a religious act from the application of general penal laws, permissiveaccommodation based on religious freedom has been granted with respect to one of the crimes penalized underthe Revised Penal Code, that of bigamy.In the U.S. case of Reynolds v. United States,

139the U.S. Court expressly denied to Mormons an exemption from a

general federal law criminalizing polygamy, even if it was proven that the practice constituted a religious dutyunder their faith.

140In contradistinction, Philippine law accommodates the same practice among Moslems, through



a legislative act. For while the act of marrying more than one still constitutes bigamy under the Revised PenalCode, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines,provides that the penal laws relative to the crime of bigamy "shall not apply to a person marriedunder Muslimlaw." Thus, by legislative action, accommodation is granted of a Muslim practice which would otherwise violate avalid and general criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in ourDecision dated August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik,

141he stated that a

Muslim Judge "is not criminally liable for bigamy because Sharia law allows a Muslim to have more than one wife."From the foregoing, the weakness of Mr. Justice Carpios "permissive-accommodation only" advocacy in this

jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty of religiousliberty as embodied in the Free Exercise Clause does not require the grant of exemptions from generally applicablelaws to individuals whose religious practice conflict with those laws," his theory is infirmed by the showing that thebenevolent neutrality approach which allows for both mandatory and permissive accommodations wasunequivocally adopted by our framers in the Philippine Constitution, our legislature, and our jurisprudence.Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to thenotion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right andan independent source of right.What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicablewhen the law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpioconceded that there is no question that in the Philippine context, accommodations are made, the question

remains as to how far the exemptions will be made and who would make these exemptions.On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatoryaccommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed legislativeaccommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding that the FreeExercise Clause required the accommodation, or mandatory accommodations) has already been decided, not justonce, but twice by the Court. Thus, the crux of the matter is whether this Court can make exemptions as inEbralinag and the American Bible Society, in cases involving criminal laws of general application.We hold that the Constitution itself mandates the Court to do so for the following reasons.First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion clauses,the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and givenleeway than in the U.S.Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations,

was to address the "inadvertent burdensome effect" that an otherwise facially neutral law would have on religiousexercise. Just because the law is criminal in nature, therefore, should not bring it out of the ambit of the FreeExercise Clause. As stated by Justice OConnor in her concurring opinion in Smith, "[t]here is nothing talismanicabout neutral laws of general applicability or general criminal prohibitions, for laws neutral towards religion cancoerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as lawsaimed at religion."

142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who arelikewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protectadherents of minority religions from the inevitable effects of majoritarianism, which include ignorance andindifference and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently,they come into conflict with the religious scruples of those holding different world views, even in the absence of adeliberate 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 incomparablethat 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 theirattention, 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 allowsaccommodations prevents needless injury to the religious consciences of those who can have an influence in thelegislature; while a constitutional interpretation that requires accommodations extends this treatment to religiousfaiths that are less able to protect themselves in the political arena.



Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied forthe first time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslempolygamy and the criminal law of bigamy.Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the ReligionClauses are stated in absolute terms, unqualified by the requirement of "due process," "unreasonableness," or

"lawful order." Only the right to free speech is comparable in its absolute grant. Given the unequivocal andunqualified grant couched in the language, the Court cannot simply dismiss a claim of exemption based on theFree Exercise Clause, solely on the premise that the law in question is a general criminal law.

143If the burden is

great and the sincerity of the religious belief is not in question, adherence to the benevolent neutrality-accommodation approach require that the Court make an individual determination and not dismiss the claimoutright.At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach doesnot mean that the Court ought to grant exemptions every time a free exercise claim comes before it. This is anerroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain. Althoughbenevolent neutrality is the lens with which the Court ought to view religion clause cases, the interest of the stateshould also be afforded utmost protection. This is precisely the purpose of the testto draw the line betweenmandatory, permissible and forbidden religious exercise. Thus, under the framework, the Court cannot simplydismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox

view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of theConstitution.

144As stated in the Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment indetermining the degree of burden on religious practice or importance of the state interest or the sufficiency of themeans adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religiousclause jurisprudence should be directed. We here lay down the doctrine that in Philippine jurisdiction, we adoptthe 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 launchingpad from which the Court should take off in interpreting religion clause cases. The ideal towards which thisapproach is directed is the protection of religious liberty "not only for a minority, however small- not only for amajority, however large but for each of us" to the greatest extent possible within flexible constitutional limits.

145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to beresolved, upon which remand was necessary, pertained to the final task of subjecting this case to the carefulapplication of the compelling state interest test, i.e., determining whether respondent is entitled to exemption, anissue which is essentially factual or evidentiary in nature.After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officersreport,

146along with the evidence submitted by the OSG, this case is once again with us, to resolve the

penultimate question of whether respondent should be found guilty of the administrative charge of "disgracefuland immoral conduct." It is at this point then that we examine the report and documents submitted by the hearingofficer of this case, and apply the three-step process of the compelling state interest test based on the evidencepresented by the parties, especially the government.On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality of respondents claimed religious belief and practice are beyond serious doubt.

147Thus, having previously established

the preliminary conditions required by the compelling state interest test, i.e., that a law or government practice

inhibits the free exercise of respondents religious beliefs, and there being no doubt as to the sincerity andcentrality of her faith to claim the exemption based on the free exercise clause, the burden shifted to thegovernment to demonstrate that the law or practice justifies a compelling secular objective and that it is the leastrestrictive means of achieving that objective.A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangeringparamount interests" which could limit or override respondents fundamental right to religious freedom. Neitherdid the government exert any effort to show that the means it seeks to achieve its legitimate state objective is theleast intrusive means.The OSG merely offered the following as exhibits and their purposes:



1. Exhibit "A-OSG" and submarking The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach, LegalRepresentative of the Watch Tower Bible and Tract Society of the Philippines, Inc.Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondents claimedreligious belief and practice.2. Exhibit "B-OSG" and submarking The duly notarized certification dated September 30, 2003 issued and signedby Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed religious belief and practice;and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement within thecongregation of the Jehovahs Witnesses, cannot be a source of any legal protection for respondent.In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to overriderespondents claimed religious belief and practice, in order to protect marriage and the family as basic socialinstitutions. The Solicitor General, quoting the Constitution

148and the Family Code,

149argues that marriage and the

family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in theDeclaration of Pledging Faithfulness should not be recognized or given effect, as "it is utterly destructive of theavowed institutions of marriage and the family for it reduces to a mockery these legally exalted and sociallysignificant institutions which in their purity demand respect and dignity."

150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts thatthe State has a compelling interest in the preservation of marriage and the family as basic social institutions, whichis ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also argues

that in dismissing the administrative complaint against respondent, "the majority opinion effectively condones andaccords a semblance of legitimacy to her patently unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to respondents criminalconduct, the majority is in fact recognizing a practice, custom or agreement that subverts marriage. He argues in asimilar fashion as regards the states interest in the sound administration of justice.There has never been any question that the state has an interest in protecting the institutions of marriage and thefamily, or even in the sound administration of justice. Indeed, the provisions by which respondents relationship issaid to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles334 and 349 of the Revised Penal Code, and even the provisions on marriage and family in the Civil Code andFamily Code, all clearly demonstrate the States need to protect these secular interests.Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in ourConstitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights "the most

inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that thestates interest is important, because our Constitution itself holds the right to religious freedom sacred. The Statemust articulate in specific terms the state interest involved in preventing the exemption, which must becompelling, for only the gravest abuses, endangering paramount interests can limit the fundamental right toreligious freedom. To rule otherwise would be to emasculate the Free Exercise Clause as a source of right by itself.Thus, it is not the States broad interest in "protecting the institutions of marriage and the family," or even "in thesound administration of justice" that must be weighed against respondents claim, but the States narrow interestin refusing to make an exception for the cohabitation which respondents faith finds moral. In other words, thegovernment must do more than assert the objectives at risk if exemption is given; it must precisely show how andto what extent those objectives will be undermined if exemptions are granted.

151This, the Solicitor General failed

to do.To paraphrase Justice Blackmuns application of the compelling interest test, the States interest in enforcing itsprohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or

symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfillany compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the State hasnot evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or herpartner. The State has never sought to prosecute respondent nor her partner. The States asserted interest thusamounts only to the symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny theexemption would effectively break up "an otherwise ideal union of two individuals who have managed to staytogether as husband and wife [approximately twenty-five years]" and have the effect of defeating the verysubstance of marriage and the family.



The Solicitor General also argued against respondents religious freedom on the basis of morality, i.e., that "theconjugal arrangement of respondent and her live-in partner should not be condoned because adulterousrelationships are constantly frowned upon by society";

152and "that State laws on marriage, which are moral in

nature, take clear precedence over the religious beliefs and practices of any church, religious sect or denominationon marriage. Verily, religious beliefs and practices should not be permitted to override laws relating to publicpolicy such as those of marriage."

153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in herdissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments havealready been addressed in our decision dated August 4, 2003.

154In said Decision, we noted that Mme. Justice

Ynares-Santiagos dissenting opinion dwelt more on the standards of morality, without categorically holding thatreligious freedom is not in issue.

155We, therefore, went into a discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional order, thereligion clauses prohibit the state from establishing a religion, including the morality it sanctions.

156Thus,

when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of ProfessionalResponsibility for lawyers,

157or "public morals" in the Revised Penal Code,

158or "morals" in the New Civil

Code,159

or "moral character" in the Constitution,160

the distinction between public and secular moralityon the one hand, and religious morality, on the other, should be kept in mind;

161

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow foraccommodation of morality based on religion, provided it does not offend compelling state interests;

162

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncementthe Court makes in the case at bar should be understood only in this realm where it has authority.

163

(d) Having distinguished between public and secular morality and religious morality, the more difficulttask 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 administrativelyliable.

164Only one conduct is in question before this Court, i.e., the conjugal arrangement of a

government employee whose partner is legally married to another which Philippine law and jurisprudence consider both immoral and illegal.

165

(e) While there is no dispute that under settled jurisprudence, respondents conduct constitutes"disgraceful and immoral conduct," the case at bar involves the defense of religious freedom, thereforenone of the cases cited by Mme. Justice Ynares-Santiago apply.

166There is no jurisprudence in Philippine

jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under

the same circumstances as respondent will not prevail over the laws on adultery, concubinage or someother law. We cannot summarily conclude therefore

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conductprejudicial to the best interest of the service, and we reiterate that the dissent offends due process as respondentwas not given an opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." Indeed, there is no evidence of the alleged prejudice to the best interest of the service.

168

Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondentexemption from the laws which respondent Escritor has been charged to have violated, the exemption would notapply to Catholics who have secured church annulment of their marriage even without a final annulment from acivil court. First, unlike Jehovahs Witnesses, the Catholic faith considers cohabitation without marriage asimmoral. Second, but more important, the Jehovahs Witnesses have standards and procedures which must befollowed before cohabitation without marriage is given the blessing of the congregation. This includes an

investigative process whereby the elders of the congregation verify the circumstances of the declarants. Also, theDeclaration is not a blanket authority to cohabit without marriage because once all legal impediments for thecouple are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize theirunion.At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises theissue of equality among religions, we look to the words of the Religion Clauses, which clearly single out religion forboth a benefit and a burden: "No law shall be made respecting an establishment of religion, or prohibiting the freeexercise thereof" On its face, the language grants a unique advantage to religious conduct, protecting it fromgovernmental imposition; and imposes a unique disadvantage, preventing the government from supporting it. To



understand this as a provision which puts religion on an equal footing with other bases for action seems to be acurious reading. There are no "free exercise" of "establishment" provisions for science, sports, philosophy, orfamily relations. The language itself thus seems to answer whether we have a paradigm of equality or liberty; thelanguage of the Clause is clearly in the form of a grant of liberty.

169

In this case, the governments conduct may appear innocent and nondiscriminatory but in effect, it is oppressive tothe minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from

the majority, the question of which perspective is appropriate would seem easy to answer. Moreover, the text,history, structure and values implicated in the interpretation of the clauses, all point toward this perspective. Thus,substantive equalitya reading of the religion clauses which leaves both politically dominant and the politicallyweak religious groups equal in their inability to use the government (law) to assist their own religion or burdenothersmakes the most sense in the interpretation of the Bill of Rights, a document designed to protectminorities and individuals from mobocracy in a democracy (the majority or a coalition of minorities).

170

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room foraccommodation of religious exercises as required by the Free Exercise Clause.

171Thus, in arguing that respondent

should be held administratively liable as the arrangement she had was "illegal per se because, by universallyrecognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to goodconscience,"

172the Solicitor General failed to appreciate that benevolent neutrality could allow for

accommodation of morality based on religion, provided it does not offend compelling state interests.173

Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that the

state has used the least intrusive means possible so that the free exercise is not infringed any more than necessaryto achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that imposesas little as possible on religious liberties.

174Again, the Solicitor General utterly failed to prove this element of the

test. Other than the two documents offered as cited above which established the sincerity of respondentsreligious belief and the fact that the agreement was an internal arrangement within respondents congregation, noiota of evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any such evidenceto show that the means the state adopted in pursuing this compelling interest is the least restrictive torespondents religious freedom.Thus, we find that in this particular case and under these distinct circumstances, respondent Escritors conjugalarrangement cannot be penalized as she has made out a case for exemption from the law based on herfundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order thatfreedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom,

however, man stands accountable to an authority higher than the state, and so the state interest sought to beupheld must be so compelling that its violation will erode the very fabric of the state that will also protect thefreedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to theInfinite.IN VIEW WHEREOF, the instant administrative complaint is dismissed.SO ORDERED.REYNATO S. PUNO Associate JusticeWE CONCUR:ARTEMIO V. PANGANIBAN Chief Justice

LEONARDO A. QUISUMBING

Associate Justice

CONSUELO YNARES-SANTIAGO

Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ANTONIO T. CARPIO Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA



Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Asscociate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Asscociate Justice

MINITA V. CHICO-NAZARIO Associate Justice

CANCIO C. GARCIA Asscociate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

civil article 40

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