freedom of religion - berne guerrero -

NarrativesConstitutional Law II

Michael Vernon Guerrero Mendiola2005

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Table of Contents

Estrada vs. Escritor [AM P-02-1651, 4 August 2003] … 1Islamic Da'wah Council of the Philippines vs. Office of the Executive Secretary [GR 153888, 9 July 2003] … 2

Epperson vs. Arkansas [393 US 97, 12 November 1968] … 3Engel vs. Vitale [370 US 421, 25 June 1962] … 4

School District of Abington Township, Pennsylvania vs. Schempp [374 US 203, 17 June 1963] … 5Stone vs. Graham [449 US 39, 17 November 1980] … 7

Aglipay v. Ruiz [GR 45459, 13 March 1937] … 8Mueller vs. Allen [463 US 388, 29 June 1983] … 9

Lemon vs. Kurtzman [403 US 602, 28 June 1971] … 10Stone vs. Graham [449 US 39, 17 November 1980] … 12

Wallace vs. Jaffree [472 US 38, 4 June 1985] … 13Fonacier vs. Court of Appeals [GR L-5917, 28 January 1955] … 15

West Virginia State Board of Education vs. Barnette [319 US 624, 14 June 1943] … 16Ebralinag vs. Division Superintendent of Schools of Cebu [GR 95770, 1 March 1993] … 18

American Bible Society v. City of Manila [GR L-9637, 30 April 1957] … 19Jimmy Swaggart Ministries vs. Board of Equalization of California [493 US 378, 17 January 1990] … 21

Victoriano vs. Elizalde Rope Workers' Union [GR L-25246, 12 September 1974] … 22Pamil vs. Teleron [GR L-34854, 20 November 1978] … 24

Torcaso vs. Watkins [367 US 488, 19 June 1961] … 25

This collection contains nineteen (19) cases

summarized in this format byMichael Vernon M. Guerrero (as a senior law student)

during the First Semester, school year 2005-2006in the Political Law Review classunder Dean Mariano Magsalin Jr.

at the Arellano University School of Law (AUSL).Compiled as PDF, September 2012.

Berne Guerrero entered AUSL in June 2002 and eventually graduated from AUSL in 2006.

He passed the Philippine bar examinations immediately after (April 2007).

berneguerrero.wordpress.com

Narratives (Berne Guerrero)

457 Estrada vs. Escritor [AM P-02-1651, 4 August 2003]En Banc, Puno (J): 5 concur, 2 filed separate opinions, 1 filed dissenting opinion, another filed dissenting

opinion to which 3 joined, 2 on official leave

Facts: In a sworn letter-complaint dated 27 July 2000, Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an investigation of rumors that Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of 18 to 20 years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act. Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper forum." Judge Caoibes set a preliminary conference on 12 October 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an 18-20 year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor's live-in arrangement did not command respect. Escritor, on the other hand, testified that when she entered the judiciary in 1999, she was already a widow, her husband having died in 1998. She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for 20 years and that they have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after 10 years of living together, she executed on 28 July 1991 a "Declaration of Pledging Faithfulness." Escritor's partner, Quilapio, executed a similar pledge on the same day. Both pledges were executed in Atimonan, Quezon and signed by 3 witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their "Declarations of Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents. Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On 17 July 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation's approval of her conjugal arrangement with Quilapio. Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report and recommendation. In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community'" He pointed out, however, that "the more relevant question is whether or not to exact from Escritor, a member of 'Jehovah's Witnesses,' the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar." The investigating judge acknowledged that "religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator and thereby recommended the dismissal of the complaint against Escritor. After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with

Constitutional Law II, 2005 ( 1 )


the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action." Considering the ruling of the Court in Dicdican v. Fernan, et al. that "court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice," DCA Lock found Escritor's defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that Escritor be found guilty of immorality and that she be penalized with suspension of 6 months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.

Issue: Whether Escritor's right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable.

Held: The case being one of first impression, the claim of religious freedom is subjected to the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining the possibility that Escritor's claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether Escritor's right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. The burden on Escritor is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands "honorable before God and men." The second step is to ascertain Escritor's sincerity in her religious belief. The accused appears to be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after 10 years of living together with her partner, Quilapio, and 10 years before she entered the judiciary. In any event, even if the Court deems sufficient Escritor's evidence on the sincerity of her religious belief and its centrality in her faith, the case cannot still be decided using the "compelling state interest" test. The case is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in the Court's use of the "compelling state interest" test. To properly settle the issue, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing Escritor's stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action would be an unconstitutional encroachment of her right to religious freedom. The Court cannot therefore simply take a passing look at Escritor's claim of religious freedom, but must instead apply the "compelling state interest" test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state's compelling interest which can override respondent's religious belief and practice. Thus, the case was remanded to the Office of the Court Administrator.

458 Islamic Da'wah Council of the Philippines vs. Office of the Executive Secretary [GR 153888, 9 July 2003]

10 concur, 2 on leave, 1 concurs in separate opinion to which 1 joined

Facts: The Islamic Da'wah Council of the Philippines, Inc. (IDCP), a corporation that operates under Department of Social Welfare and Development License SB-01-085, is a non-governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. It claims to be a federation of national Islamic organizations and an active member of international organizations such as the



Regional Islamic Da'wah Council of Southeast Asia and the Pacific (RISEAP) and the World Assembly of Muslim Youth. The RISEAP accredited petitioner to issue halal2 certifications in the Philippines. Thus, among the functions IDCP carries out is to conduct seminars, orient manufacturers on halal food and issue halal certifications to qualified products and manufacturers. IDCP formulated in 1995 internal rules and procedures based on the Qur'an and the Sunnah for the analysis of food, inspection thereof and issuance of halal certifications. In that same year, IDCP began to issue, for a fee, certifications to qualified products and food manufacturers. IDCP even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine Patent Office under Patent 4-2000-03664. On 26 October 2001, the Office of the Executive Secretary issued Executive Order (EO) 465, series of 2001, creating the Philippine Halal Certification Scheme and designating the Office on Muslim Affairs (OMA) to oversee its implementation. Under the EO, OMA has the exclusive authority to issue halal certificates and perform other related regulatory activities. On 8 May 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification" was published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to buy only products with its official halal certification since those without said certification had not been subjected to careful analysis and therefore could contain pork or its derivatives. OMA also sent letters to food manufacturers asking them to secure the halal certification only from OMA lest they violate EO 46 and RA 4109. As a result, IDCP lost revenues after food manufacturers stopped securing certifications from it. IDCP filed a petition for prohibition, praying for the declaration of nullity of EO 46 and the prohibition of the Office of the Executive Secretary and OMA from implementing the subject EO.

Issue: Whether the OMA encroached ipon the religious freedom of Muslim organizatinos to interpret what food products are fit for Muslim consumption.

Held: OMA was created in 1981 through Executive Order 697 "to ensure the integration of Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, traditions, and institutions." OMA deals with the societal, legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution. Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim organizations like IDCP to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal food. There is no compelling justification for the government to deprive muslim organizations of their religious right to classify a product as halal, even on the premise that the health of muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the muslim Filipinos' right to health are already provided for in existing laws and ministered to by government agencies charged with ensuring that food products released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of muslims.

459 Epperson vs. Arkansas [393 US 97, 12 November 1968]Fortas (J)

Facts: The Arkansas law makes it unlawful for a teacher in any state-supported school or university "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position. On Little Rock, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and



prescribed a textbook which contained a chapter setting forth "the theory about the origin of man from a lower form of animal." Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal. She instituted the action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the officials of the Little Rock school system from dismissing her for violation of the statute's provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action. The Chancery Court held that the statute violated the Fourteenth Amendment to the United States Constitution. The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it "tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach." In this perspective, it held that the Act was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution. On appeal, the Supreme Court of Arkansas reversed. It sustained the statute as an exercise of the State's power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.

Issue: Whether Arkansas law violates the Constitution by prohibiting the instruction that man, by evolution, came from lower animals.

Held: It is of no moment whether the law is deemed to prohibit mention of Darwin's theory, or to forbid any or all of the infinite varieties of communication embraced within the term "teaching." Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group. The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Herein, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear that fundamentalist sectarian conviction was and is the law's reason for existence. Its antecedent, Tennessee's "monkey law," candidly stated its purpose: to make it unlawful "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals." Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee's reference to "the story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man. Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.

460 Engel vs. Vitale [370 US 421, 25 June 1962]



Black (J)

Facts: The Board of Education of Union Free School District 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system. These state officials composed the prayer which they recommended and published as a part of their "Statement on Moral and Spiritual Training in the Schools," saying: "We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program." Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of 10 pupils brought the action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that "Congress shall make no law respecting an establishment of religion" - a command which was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution." The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection.

Issue: Whether the New York law adopting the practice of reciting the Regent’s prayer in public schools violate the (Non)Establishment Clause.

Held: By using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious. There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The argument to the contrary, which is largely based upon the contention that the Regents' prayer is "non-denominational" and the fact that the program does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

461 School District of Abington Township, Pennsylvania vs. Schempp [374 US 203, 17 June 1963]Clark (J)

Facts: [Case 142] The Commonwealth of Pennsylvania by law requires that "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian." The Schempp family, husband and wife and two of their three children (who are of the Unitarian faith and are members of the Unitarian church in Germantown, Philadelphia, Pennsylvania,



where they, as well as another son, Ellory, regularly attend religious services), brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the School District of Abington Township (Pennsylvania), wherein the Schempp children attend school (the Abington Senior High School), and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord's Prayer in the public schools of the district pursuant to the statute. A three-judge statutory District Court for the Eastern District of Pennsylvania held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause of the Fourteenth Amendment and directed that appropriate injunctive relief issue. Hence, the appeal by the District, its officials and the Superintendent.

[Case 119] In 1905 the Board of School Commissioners of Baltimore City adopted a rule pursuant to Art. 77, 202 of the Annotated Code of Maryland. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the "reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer." Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the school board rescind the rule, the suit was filed for mandamus to compel its rescission and cancellation. It was alleged that William was a student in a public school of the city and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that at the Murrays' insistence the rule was amended to permit children to be excused from the exercise on request of the parent and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the Murrays' rights "to freedom of religion under the First and Fourteenth Amendments" and in violation of "the principle of separation between church and state, contained therein." The petition particularized the Murrays' atheistic beliefs and stated that the rule, as practiced, violated their rights "in that it threatens their religious liberty by placing a premium on belief as against non-belief and subjects their freedom of conscience to the rule of the majority; it pronounces belief in God as the source of all moral and spiritual values, equating these values with religious values, and thereby renders sinister, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith." The Board demurred and the trial court, recognizing that the demurrer admitted all facts well pleaded, sustained it without leave to amend. The Maryland Court of Appeals affirmed, the majority of four justices holding the exercise not in violation of the First and Fourteenth Amendments, with three justices dissenting.

Issue: Whether the reading of the bible, even without comments, at the start of the school day by students violate the (Non) Establishment clause.

Held: The First Amendment's mandate that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" has been made wholly applicable to the States by the Fourteenth Amendment. In Cantwell v. Connecticut (310 US 296, 303 [1940]), it was held that "The fundamental concept of liberty embodied in that [Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." In a series of cases since Cantwell the Court has repeatedly reaffirmed that doctrine, and it does so in the present case. Further, the Establishment Clause forbids not only governmental preference of one religion over another. As was held in Everson v. Board of Education (330 US 1, 15 [1947]), "neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." The wholesome "neutrality" stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is



found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, the two clauses may overlap; but still, the distinction between the two clauses is apparent - a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended. Applying the Establishment Clause principles in Case 142, the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. Such an opening exercise is a religious ceremony and was intended by the State to be so, and thus the exercises and the law requiring them are in violation of the Establishment Clause. On the other hand, in Case 119, although the State contends that the program is an effort to extend its benefits to all public school children without regard to their religious belief, and that its purpose is not strictly religious as it is sought to be accomplished through readings, without comment, from the Bible; the place of the Bible as an instrument of religion cannot be gainsaid, and the State's recognition of the pervading religious character of the ceremony is evident from the rule's specific permission of the alternative use of the Catholic Douay version as well as the recent amendment permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects. Therefore, ib oth cases, the laws require religious exercises and such exercises are being conducted in direct violation of the rights of Schempp, et. al. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, "it is proper to take alarm at the first experiment on our liberties."

462 Stone vs. Graham [449 US 39, 17 November 1980]Per Curiam

Facts: A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Stone, et. al. claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its "avowed purpose" was "secular and not religious," and that the statute would "neither advance nor inhibit any religion or religious group" nor involve the State excessively in religious matters. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court.

Issue: Whether the posting of the Ten Commandments in public school rooms, procured from private contributions, violate the non-establishment clause.

Held: Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional. The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. The case is not in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of



religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the "official support of the State Government" that the Establishment Clause prohibits. Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud, for "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment." Ky. Rev. Stat. 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

463 Aglipay v. Ruiz [GR 45459, 13 March 1937]First Division, Laurel (J): 5 concur

Facts: In May 1936, the Director of Posts announced in the dailies of Manila that he would order the issuance of postage stamps commemorating the celebration in the City of Manila of the 33rd International Eucharistic Congress, organized by the Roman Catholic Church. Monsignor Gregorio Aglipay, Supreme Head of the Philippine Independent Church, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of Sotto, the Director of Posts publicly announced that the designs of the postage for printing have been sent to the United States. The said stamps were actually issued and sold though the greater part thereof remained unsold. The further sale of the stamps was sought to be prevented by Aglipay.

Issue: Whether the stamp (containing a map of the Philippines, the location of the City of Manila, and an inscription that reads "Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937") violate the Non-establishment clause by allegedly promoting the Catholic religion.

Held: Section 13, Article VI, of the 1935 Constitution provides that “no public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium." The prohibition is a direct corollary of the principle of separation of church and state. Act 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution; i.e. to appropriate, use or apply of public money or property for the use, benefit or support of a particular sect or church. Herein, the issuance of the postage stamps was not inspired by any sectarian feeling to favor a particular church or religious denominations. The stamps were not issued and sold for the benefit of the Roman Catholic Church, nor were money derived from the sale of the stamps given to that church. The purpose of the issuing of the stamps was to take advantage of an event considered of international importance to give publicity to the Philippines and its people and attract more tourists to the country. Thus, instead of showing a Catholic chalice, the stamp contained a map of the Philippines, the location of the City of Manila, and an inscription that reads "Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937." Thus, while the issuance and sale of the stamps may be said to be inseparably linked with an event of a religious character, the resulting propaganda received by the Roman Catholic Church, was not the aim and purpose of the Government. The Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated.



464 Mueller vs. Allen [463 US 388, 29 June 1983]Rehnquist (J)

Facts: Minnesota, like every other State, provides its citizens with free elementary and secondary schooling. Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction is limited to actual expenses incurred for the "tuition, textbooks and transportation" of dependents attending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades K through 6 and $700 per dependent in grades 7 through 12. About 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian. Certain Minnesota taxpayers (Mueller, et. al.) sued in the United States District Court for the District of Minnesota claiming that 290.09, subd. 22, violated the Establishment Clause by providing financial assistance to sectarian institutions. They named as defendants the Commissioner of the Department of Revenue of Minnesota and several parents who took advantage of the tax deduction for expenses incurred in sending their children to parochial schools. The District Court granted the Commissioner, et. al.'s motion for summary judgment, holding that the statute was "neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion." On appeal, the Court of Appeals affirmed, concluding that the Minnesota statute substantially benefited a "broad class of Minnesota citizens." The United States Court of Appeals for the Eighth Circuit held that the Establishment Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment, was not offended by this arrangement.

Issue: Whether the Minnesota law allowing tax deductions for expenses incurred in children’s education violates the Establishment Clause inasmuch as allegedly it will provide financial assistance to sectarian institutions.

Held: A State's decision to defray the cost of educational expenses incurred by parents - regardless of the type of schools their children attend - evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well educated. Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students such schools relieve public schools of a correspondingly great burden - to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the "TVA yardstick" for private power companies. Further, there are several features of the Minnesota tax deduction particularly significant in determining that the Minnesota statute does not have "the primary effect of advancing the sectarian aims of the nonpublic schools." First, an essential feature of Minnesota's arrangement is the fact that 290.09, subd. 22, is only one among many deductions - such as those for medical expenses, 290.09, subd. 10, and charitable contributions, 290.21, subd. 3 - available under the Minnesota tax laws. Traditionally "legislatures have especially broad latitude in creating classifications and distinctions in tax statutes," in part because the "familiarity with local conditions" enjoyed by legislators especially enables them to "achieve an equitable distribution of the tax burden." The Minnesota Legislature's judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference. Other characteristics of 290.09, subd. 22, argue equally strongly for the provision's constitutionality. Most importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools. The State's provision of a forum neutrally "available to a broad class of nonreligious as well as religious speakers" does not "confer any imprimatur of state approval," so here: "the provision of benefits to so broad a spectrum of groups is an important index of secular effect." Although the



Establishment Clause extends beyond prohibition of a state church or payment of state funds to one or more churches, its prohibition does not extend to the type of tax deduction established by Minnesota. The historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue. Furthermore, the Minnesota statute does not "excessively entangle" the State in religion. The only plausible source of the "comprehensive, discriminating, and continuing state surveillance," necessary to run afoul of this standard would lie in the fact that state officials must determine whether particular textbooks qualify for a deduction. State officials must disallow deductions taken for "instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship."

465 Lemon vs. Kurtzman [403 US 602, 28 June 1971]Burger (CJ)

Facts: [The Rhode Island Statute] The Rhode Island Salary Supplement Act was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers. In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. The State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use "only teaching materials which are used in the public schools." Finally, any teacher applying for a salary supplement must first agree in writing "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements" under the Act. Certain citizens and taxpayers of Rhode Island brought the suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. The District Court concluded that the Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion. In addition two judges thought that the Act had the impermissible effect of giving "significant aid to a religious enterprise."

[The Pennsylvania Statute] Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of "those purely secular educational objectives achieved through nonpublic education." The statute authorizes the state Superintendent of Public Instruction to "purchase" specified "secular educational services" from nonpublic schools. Under the "contracts" authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials. A school seeking reimbursement must maintain prescribed accounting procedures that identify the "separate" cost of the "secular educational service." These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes. There are several significant statutory restrictions on state aid. Reimbursement is limited to courses



"presented in the curricula of the public schools." It is further limited "solely" to courses in the following "secular" subjects: mathematics, modern foreign languages, physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." The Act went into effect on 1 July 1968, and the first reimbursement payments to schools were made on 2 September 1969. Some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils - more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church. Associations of persons resident in Pennsylvania declaring belief in the separation of church and state; and other citizens and taxpayers of Pennsylvania, including Lemon (a parent of a child attending public school in Pennsylvania) brought an action in the District Court to challenge the constitutionality of the Pennsylvania statute. The District Court held that the Act violated neither the Establishment nor the Free Exercise Clause.

Issue: Whether the Rhode Island and Pennsylvania statutes violate the Establishment clause

Held: In the absence of precisely stated constitutional prohibitions, the Court must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster "an excessive government entanglement with religion." Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As there is nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference. Still, its hould be determined whether the government entanglement with religion is excessive. The Court thus must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Herein, both statutes foster an impermissible degree of entanglement.

The church schools involved in the Rhode Island program are located close to parish churches. This understandably permits convenient access for religious exercises since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. The parochial schools constituted "an integral part of the religious mission of the Catholic Church." The various characteristics of the schools make them "a powerful vehicle for transmitting the Catholic faith to the next generation." This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose. The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the



considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education. The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides. Teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. The Court cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation. A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school's records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. There is danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses.

The Pennsylvania statute also provides state aid to church-related schools for teachers' salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction. The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants provide no basis for predicting that comprehensive measures of surveillance and controls will not follow. In particular the government's post-audit power to inspect and evaluate a church-related school's financial records and to determine which expenditures are religious and which are secular creates an intimate and continuing relationship between church and state.

The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court found that the parochial school system's "monumental and deepening financial crisis" would "inescapably" require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program.

466 Stone vs. Graham [449 US 39, 17 November 1980]Per Curiam



Facts: A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Stone, et. al. claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its "avowed purpose" was "secular and not religious," and that the statute would "neither advance nor inhibit any religion or religious group" nor involve the State excessively in religious matters. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court.

Issue: Whether the posting of the Ten Commandments in public school rooms, procured from private contributions, violate the non-establishment clause.

Held: Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional. The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. The case is not in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the "official support of the State Government" that the Establishment Clause prohibits. Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud, for "it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment." Ky. Rev. Stat. 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

467 Wallace vs. Jaffree [472 US 38, 4 June 1985]Stevens (J)

Facts: Ishmael Jaffree is a resident of Mobile County, Alabama. On 28 May 1982, he filed a complaint on behalf of three of his minor children; two of them were second-grade students and the third was then in kindergarten; which named members of the Mobile County School Board, various school officials, and the minors' three teachers as defendants; alleging that (1) they brought the action "seeking principally a declaratory judgment and an injunction restraining the board, etc. and each of them from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile County Public Schools in violation of the First Amendment as made applicable to states by the Fourteenth Amendment to the United States Constitution," (2) that two of the children had been subjected to various acts of religious indoctrination "from the beginning of the school year in September, 1981"; (3) that the teachers had "on a daily basis" led their classes in saying certain prayers in unison; (4) that the minor children were exposed to ostracism from their peer group class members if they did not participate; and (5) that Ishmael Jaffree had repeatedly but unsuccessfully requested that the devotional services be stopped. The original complaint made no reference to any Alabama statute. On 4 June 1982, the Jaffrees filed an amended complaint seeking class certification, and on 30 June 1982, they filed a second amended complaint naming the Governor of Alabama and various state officials as additional defendants. In that amendment the Jaffrees challenged the constitutionality of three Alabama statutes: 16-1-20 (enacted in 1978, which authorized a 1-



minute period of silence in all public schools "for meditation"), 16-1-20.1 (enacted in 1981, which authorized a period of silence "for meditation or voluntary prayer"), and 16-1-20.2 (enacted in 1982, which authorized teachers to lead "willing students" in a prescribed prayer to "Almighty God, the Creator and Supreme Judge of the world"). On 2 August 1982, the District Court held an evidentiary hearing on Jaffree's motion for a preliminary injunction. A week after the hearing, the District Court entered a preliminary injunction. At the preliminary-injunction stage of the case, the District Court distinguished 16-1-20 from the other two statutes. It then held that there was "nothing wrong" with 16-1-20, but that 16-1-20.1 and 16-1-20.2 were both invalid because the sole purpose of both was "an effort on the part of the State of Alabama to encourage a religious activity." After the trial on the merits, the District Court did not change its interpretation of these two statutes, but held that they were constitutional because, in its opinion, Alabama has the power to establish a state religion if it chooses to do so. The Court of Appeals agreed with the District Court's initial interpretation of the purpose of both 16-1-20.1 and 16-1-20.2, and held them both unconstitutional. The US Supreme Court has already affirmed the Court of Appeals' holding with respect to 16-1-20.2 (Wallace v. Jaffree, 466 US 924 [1984]). On the other hand, the Jaffreys have not questioned the holding that 16-1-20 is valid. Hence, the constitutionality of 16-1-20.1 was left for the resolution by the Supreme Court.

Issue: Whether 16-1-20.1, which authorizes a period of silence for "meditation or voluntary prayer," is a law respecting the establishment of religion within the meaning of the First Amendment.

Held: The First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. Until the Fourteenth Amendment was added to the Constitution, the First Amendment's restraints on the exercise of federal power simply did not apply to the States. But when the Constitution was amended to prohibit any State from depriving any person of liberty without due process of law, that Amendment imposed the same substantive limitations on the States' power to legislate that the First Amendment had always imposed on the Congress' power. This Court has confirmed and endorsed this elementary proposition of law time and time again. When the Court has been called upon to construe the breadth of the Establishment Clause, it has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman, 403 U.S. 602, 612 -613 (1971), it was held that "Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster `an excessive government entanglement with religion.'" It is the first of these three criteria that is most plainly implicated by this case. No consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. In applying the purpose test, it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion." Herein, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of 16-1-20.1 was not motivated by any clearly secular purpose - indeed, the statute had no secular purpose. The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation. Only two conclusions are consistent with the text of 16-1-20.1: (1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act. The Alabama legislature enacted 16-1-20.1, despite the existence of 16-1-20 for the sole purpose of expressing the State's endorsement of prayer activities for one minute at the beginning of each schoolday. The addition of "or voluntary prayer" indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.



468 Fonacier vs. Court of Appeals [GR L-5917, 28 January 1955]En Banc, Bautista Angelo (J): 5 concur

Facts: Upon the death of Mons. Aglipay, the Supreme Head of the Iglesia Filipina Independiente (IFI) since 1902, Mons. Santiago A. Fonacier was elected Obispo Maximo, on 14 October 1940, in accordance with the constitution of the church. The latter's successor should have been elected by the Asamblea Magna of the Church on 1 September 1943. However, due to the circumstances brought about by the Pacific War, it was agreed, on 16 December 1941, by the Bishops stationed in Manila and neighboring provinces that Mons. Fonacier should hold over as Obispo Maximo of the IFI, for the duration of the emergency created by the year. After the liberation of the Philippines, and on 1 September 1945, an attempt was made to convene the Asamblea Magna for the purpose of electing the Obispo Maximo, but owing to lack of quorum, the Bishops present agreed that Mons. Fonacier would continue for another year, or until 1 September 1946. On 2 September 1945, the Consejo Supremo de Obispos (Supreme Council of Bishops) of the IFI convened and approved the designation of bishops to their respective bishoprics. In that meeting Mons. Alejandro Remollino was assigned as bishop of the diocese of Cavite. Upon learning that the latter notified the priests of his bishopric regarding his assignment, Mons. Fonacier wrote him a letter dated 18 September 1945 enjoining him from assuming the duties of his office and from taking possession of the diocese of Cavite until he (Fonacier) had approved the appointment made by the Supreme Council as provided for in the constitution. To this letter Bishop Remollino replied explaining his side and adding that he was ready to defend his stand on the matter before the courts of justice. In view of this attitude, Mons. Fonacier ordered the expulsion of Bishop Remollino from the church and also of Bishop Manuel Aguilar whom Mons. Fonacier suspected to be the instigator of certain acts of insubordination and defamation against him. On 1 December 1945, Bishop Manuel Aguilar filed charges against Mons. Fonacier as Supreme Bishop which were submitted to a meeting of the Supreme Council of Bishops, held on 21 January 1946, which decreed the forced resignation of Mons. Fonacier, and to the Asamblea Magna or Asamblea General of the church, held on 22 January 1946. This body approved the forced resignation of Mons. Fonacier and elected Bishop Gerardo M. Bayaca as Supreme Bishop to succeed Mons. Fonacier. When notified of his removal as Obispo Maximo and required to turn over all the funds, documents and other properties of the church to his successor, Mons. Fonacier refused. The case was instituted in the Court of First Instance of Manila by the IFI, represented by its Supreme Bishop Gerardo M. Bayaca, against Mons.Fonacier seeking to require the latter to render an accounting of his administration of all the temporal properties he has his possession belonging to said church and to recover the same from him on the ground that he had ceased be the Supreme Bishop of said religious organization. On 1 September 1946 the Asamblea Magna convened and elected Mons. Isabelo de los Reyes, Jr. as Obispo Maximo. On the same date Mons. Fonacier and some of his followers met at the Manila Hotel and elected Mons Juan Jamias as their Supreme Bishop. Thus two factions of the IFI were created. Thus, Bishop Isabelo de los Reyes, Jr., was made a co-plaintiff in a supplementary complaint. The faction under Mons. Isabelo de los Reyes, Jr. according to the statement of the Director of National Library, issued on 22 May 1947, had 19 bishops and 252 priests while the faction under Mons. Juan Jamias had 10 bishops and only 40 priests. Thus on 23 June 1947, the Secretary of Public Instruction promulgated an order to the effect that for administrative purposes, Mons. Isabelo de los Reyes, Jr., was recognized as sole head of the IFI and the applications of priests of said church for permits to solemnize marriages would be granted if it were shown thereon that they recognized Isabelo de los Reyes, Jr., as the Obispo Maximo of said church. The Supreme Court, however, denied the power of the Secretary to stop the Fonacier group from obtaining licenses to solemnize marriages. On 22 January 1948, the bishop and priests under Mons. De los Reyes, Jr., had increased from 252 to 293 while those under Mons. Jamias were only 64 and Mons. De los Reyes, Jr. was duly registered as "corporation sole for the administration of the temporalities of the Iglesia Filipina Independiente, pursuant to the provisions of Articles 154-164 of the Corporation Law." On 17 May 1950, the trial court rendered judgment declaring Mons. Isabelo de los Reyes, Jr. as the sole and legitimate Supreme Bishop of the IFI, and ordering Mons. Fonacier to render an accounting of his administration of the properties and funds of the church "from the time he began occupying the position of Secretario de Economia Temporal thereof until the present time."



When the case was taken to the Court of Appeals, the latter found the decision of the Court of origin in accordance with law and the evidence and affirmed the same in toto. The case was elevated to the Superme Court by virtue of a petition for review interposed by Mons. Fonacier.

Issue: Whether the civil courts have jurisdiction to determine the legality of the ouster of certain bishops of the IPI, to determine the proper faction to hold the church’s property, and/or pass upon matters involving the church’s amendment of its constitution, etc.

Held: Where a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the laws of the land, it will not be followed by the civil courts. In some instances, not only have the civil courts assumed the right to inquire into the jurisdiction of religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and laws of the church. Thus, it has been held that expulsion of a member without notice or an opportunity to be heard is not conclusive upon the civil courts when a property right is involved. Where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere in the acknowledged organism by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the government body, can claim no rights in the property from the fact that they had once been members of the church or congregation. Herein, the properties of the IFI are held by a religious congregation, and that the numerical majority is on the side of the faction of Mons. de los Reyes, et. al. where the number of its bishops and priests, as of 22 January 1948, were 293 as against 64 of Mons. Fonacier's group. On the other hand, the amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by Mons. Fonacier, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.

469 West Virginia State Board of Education vs. Barnette [319 US 624, 14 June 1943]Jackson (J)

Facts: Following the decision by the US Supreme Court on 3 June 1940 in Minersville School District v. Gobitis (310 U.S. 586 , 60 S.Ct. 1010, 127 A.L.R. 1493), the West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State "for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government." The Board of Education was directed, with advice of the State Superintendent of Schools, to "prescribe the courses of study covering these subjects" for public schools. The Act made it the duty of private, parochial and denominational schools to prescribe courses of study "similar to those required for the public schools." The Board of Education on 9 January 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools," that all teachers and pupils "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly." The resolution originally required the "commonly accepted salute to the Flag" which it defined. Objections to the salute as "being too much like Hitler's" were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women's Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. What is now required is the "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the



Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Failure to conform is "insubordination" dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is "unlawfully absent" and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days. Certain citizens of the United States and of West Virginia, including Barnette, et. al., brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superiod to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them." They consider that the flag is an "image" within this command. For this reason they refuse to salute it. Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency. The District Court restrained enforcement as to the Witnesses and those of that class. The Board of Education brought the case to the US Supreme Court by direct appeal.

Issue: Whether compulsion in saluting the flag, as employed herein, is a permissible means for its achievement.

Held: In connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical reiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn. The compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by the Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, the Court is required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind. Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these



ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. Thus, the limitations of the Constitution are applied with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to the Court. The action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

470 Ebralinag vs. Division Superintendent of Schools of Cebu [GR 95770, 1 March 1993]; also Amolo vs. Division Superintendent of Schools of Cebu [GR 85887]

En Banc, Grino-Aquino (J): 10 concur, 2 concur is separate opinions, 1 on leave, 1 took no part

Facts: 43 students of the Daanbantayan National High School, Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and Northern Central Elementary School of San Fernando, Cebu, were expelled (23 October 1990) upon order of then Acting Division Superintendent Marcelo Bacalso. Said students in the towns of Daan Bantayan, Pinamungajan, Carcar, and Taburan, Cebu province (GR 95770, Ebralinag vs. Division Superintendent) were expelled for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act 1265 (11 July 1955), and by Department Order 8 dated 21 July 1955 of the Department of Education, Culture and Sports (DECS) making the flag ceremony compulsory in all educational institutions. This prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro Cariño but the latter did not answer their letter. 25 students who were similarly expelled (high school and grade school students enrolled in public schools in Asturias, Cebu [GR 95887, Amolo vs. Director Superintendent]) because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of his predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses. On 31 October 1990, the students and their parents filed the Special civil actions for Mandamus, Certiorari and Prohibition alleging that the Division Superintendent of Schools of Cebu, et. al. acted without or in excess of their jurisdiction and with grave abuse of discretion in ordering their expulsion without prior notice and hearing, hence, in violation of their right to due process, their right to free public education, and their right to freedom of speech, religion and worship. Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious devotion" which they "cannot conscientiously give to anyone or anything except God." They feel bound by the Bible's command to "guard ourselves from idols — 1 John 5:21." They consider the flag as an image or idol representing the State. They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protects against official control. They stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in "external acts" or behavior that would offend their countrymen who believe in expressing their love of country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony



to show their respect for the right of those who choose to participate in the solemn proceedings. Since they do not engage in disruptive behavior, there is no warrant for their expulsion. On 27 November 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory injunction commanding the Division Superintendent to immediately readmit the students to their respective classes until further orders from the Court. The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be impleaded as respondents in the cases.

Issue: Whether the students, who belong to the Jehovah’s Witness sect, should be expelled (following the holding in the case of Gerona) for not saluting the flag in accordance with RA 1265.

Held: Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator. The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the students from the schools is not justified. By exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious which admittedly comprises a "small portion of the school population" will not shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes." After all, what the students seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, science, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values as part of the curricula. Expelling or banning the students from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and promote the right of all citizens to quality education and to make such education accessible to all." While it is certain that not every conscience can be accommodated by all the laws of the land; when general laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interests" intervenes. Exemptions may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. While the highest regard must be afforded their right to the exercise of their religion, "this should not be taken to mean that school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, such conduct cannot possibly disturb the peace, or pose "a grave and present danger 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." Thus, although the Court upholds the students' right under our Constitution to refuse to salute the Philippine flag on account of their religious beliefs, it hopes, nevertheless, that another foreign invasion of our country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.

471 American Bible Society v. City of Manila [GR L-9637, 30 April 1957]



Second Division, Felix (J): 7 concur, 1 concur in result

Facts: The American Bible Society, is a foreign, non-stock, non-profit, religious, missionary corporation duly registered and doing business in the Philippines through its Philippine agency established in Manila in November 1898. The City of Manila, is a municipal corporation with powers that are to be exercised in conformity with the provisions of Republic Act 409, (Revised Charter of the City of Manila). In the course of its ministry, the Society's Philippine agency has been distributing and selling bibles and/or gospel portions thereof (except during the Japanese occupation) throughout the Philippines and translating the same into several Philippine dialects. On 29 May 1953, the acting City Treasurer of the City of Manila informed the Society that it was conducting the business of general merchandise since November 1945, without providing itself with the necessary Mayor's permit and municipal license, in violation of Ordinance 3000, as amended, and Ordinances 2529, 3028 and 3364, and required the Society to secure, within 3 days, the corresponding permit and license fees, together with compromise covering the period from the 4th quarter of 1945 to the 2nd quarter of 1953, in the total sum of P5,821.45. On 24 October 1953, the Society paid to the City under protest the said permit and license fees, giving at the same time notice to the City Treasurer that suit would be taken in court to question the legality of the ordinances under which the said fees were being collected, which was done on the same date by filing the complaint that gave rise to the present action. After hearing, the lower court dismissed the complaint for lack of merit. The Society appealed to the Court of Appeals, which in turn certified the case to the Supreme Court for the reason that the errors assigned involved only questions of law.

Issue: Whether the City Treasurer may impose permit fee upon the religious organization before the latter may distribute and sell bibles with the City of Manila.

Held: Article III, section 1, clause (7) of the Constitution guarantees the freedom of religious profession and worship. Religion has been spoken of as 'a profession of faith to an active power that binds and elevates man to its Creator. It has reference to one's views of his relations to His Creator and to the obligations they impose of reverence to His being and character, and obedience to His Will. The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. A tax on the income of one who engages in religious activities is different from a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down. It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question. It is in no way apportioned. It is flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the constitutional liberties of press and religion and inevitably tends to suppress their exercise. Such is the inherent vice and evil of a flat license tax. Dissemination of religious information cannot be conditioned upon the approval of an official or manager. The right to enjoy freedom of the press and religion occupies a preferred position as against the constitutional right of property owners. Herein, Section 27 (e) of Commonwealth Act 466 (NIRC) -- which exempts corporations or associations organized and operated exclusively for religious, charitable, or educational purposes, Provided however, That the income of whatever kind and character from any of its properties, real or personal, or from any activity conducted for profit, regardless of the disposition made of such income, shall be liable to the tax imposed under the Code -- does not apply to the Society as its act of distributing and selling bibles, etc. is purely religious in nature. Ordinance 2529, as amended, cannot as well be applied to the Society, for in doing so it would impair its free exercise and enjoyment of its religious profession and worship as well as its rights of dissemination of religious beliefs. The fact that the price of the bibles and other religious pamphlets are little higher than the actual cost of the same does not necessarily mean that it is already engaged in the business or occupation of selling said “merchandise” for profit. Lastly,



Ordinance 3000 of the City of Manila, which requires the obtention of the Mayor's permit before any person can engage in any of the businesses, trades or occupations enumerated therein, is not applicable to the Society, as its business, trade or occupation is not particularly mentioned in Section 3 of the Ordinance, and the record does not show that a permit is required therefor under existing laws and ordinances for the proper supervision and enforcement of their provisions governing the sanitation, security and welfare of the public and the health of the employees engaged in the business of the Society.

472 Jimmy Swaggart Ministries vs. Board of Equalization of California [493 US 378, 17 January 1990]

O'Connor (J)

Facts: California's Sales and Use Tax Law requires retailers to pay a sales tax "for the privilege of selling tangible personal property at retail." The use tax, as a complement to the sales tax, reaches out-of-state purchases by residents of the State. It is "imposed on the storage, use, or other consumption in this state of tangible personal property purchased from any retailer," at the same rate as the sales tax (6 percent). Although the use tax is imposed on the purchaser, it is generally collected by the retailer at the time the sale is made. Neither the State Constitution nor the State Sales and Use Tax Law exempts religious organizations from the sales and use tax, apart from a limited exemption for the serving of meals by religious organizations. During the tax period from 1974 to 1981, Jimmy Swaggart Ministries was a religious organization incorporated as a Louisiana nonprofit corporation and recognized as such by the Internal Revenue Service pursuant to 501(c)(3) of the Internal Revenue Code of 1954, as amended, and by the California State Controller pursuant to the Inheritance Tax and Gift Tax Laws of the State of California. The Ministry's constitution and bylaws provide that it "is called for the purpose of establishing and maintaining an evangelistic outreach for the worship of Almighty God." This outreach is to be performed "by all available means, both at home and in foreign lands," and "shall specifically include evangelistic crusades; missionary endeavors; radio broadcasting (as owner, broadcaster, and placement agency); television broadcasting (both as owner and broadcaster); and audio production and reproduction of music; audio production and reproduction of preaching; audio production and reproduction of teaching; writing, printing and publishing; and, any and all other individual or mass media methods that presently exist or may be devised in the future to proclaim the good news of Jesus Christ." From 1974 to 1981, the Ministry conducted numerous "evangelistic crusades" in auditoriums and arenas across the country in cooperation with local churches. During this period, it held 23 crusades in California - each lasting 1 to 3 days, with one crusade lasting 6 days - for a total of 52 days. At the crusades, the Ministry conducted religious services that included preaching and singing. Some of these services were recorded for later sale or broadcast. It also sold religious books, tapes, records, and other religious and nonreligious merchandise at the crusades. The Ministry also published a monthly magazine, "The Evangelist," which was sold nationwide by subscription. The magazine contained articles of a religious nature as well as advertisements for the Ministry's religious books, tapes, and records. The magazine included an order form listing the various items for sale in the particular issue and their unit price, with spaces for purchasers to fill in the quantity desired and the total price. Appellant also offered its items for sale through radio, television, and cable television broadcasts, including broadcasts through local California stations. In 1980, the Board of Equalization of the State of California informed the Ministry that religious materials were not exempt from the sales tax and requested that the latter to register as a seller to facilitate reporting and payment of the tax. The Ministry responded that it was exempt from such taxes under the First Amendment. In 1981, the Board audited the Ministry and advised the latter that it should register as a seller and report and pay sales tax on all sales made at its California crusades. The Board also opined that the Ministry had a sufficient nexus with the State of California to require the latter to collect and report use tax on its mail-order sales to California purchasers. Based on the sales figures for the Ministry's religious materials, the Board notified the Ministry that it owed sales and use taxes of $118,294.54, plus interest of $36,021.11, and a penalty of $11,829.45, for a total amount due of $166,145.10. The Ministry did not contest the Board's assessment of tax liability for the sale and use of certain nonreligious merchandise, including such items as "T-shirts with JSM logo, mugs, bowls, plates, replicas of crown of thorns, ark of the covenant, Roman coin, candlesticks, Bible stand, pen and pencil



sets, prints of religious scenes, bud vase, and communion cups." The Ministry filed a petition for redetermination with the Board, reiterating its view that the tax on religious materials violated the First Amendment. Following a hearing and an appeal to the Board, the Board deleted the penalty but otherwise redetermined the matter without adjustment in the amount of $118,294.54 in taxes owing, plus $65,043.55 in interest. Pursuant to state procedural law, the Ministry paid the amount and filed a petition for redetermination and refund with the Board. . The Board denied the Ministry's petition, and the latter brought suit in state court, seeking a refund of the tax paid. The trial court entered judgment for the Board, ruling that the Ministry was not entitled to a refund of any tax. The California Court of Appeal affirmed, and the California Supreme Court denied discretionary review.

Issue: Whether the State's imposition of sales and use tax liability on its sale of religious materials contravenes the First Amendment's command, made applicable to the States by the Fourteenth Amendment, to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Held: The Free Exercise Clause "withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority." Indeed, "a regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.

Issue: Whether the tax imposed on the Ministry acts as prior restraint to the free exercise of religious beliefs.

Held: Unlike flat license taxes, which operate as a precondition to the exercise of evangelistic activity, the registration requirement herein and the tax itself do not act as prior restraints - no fee is charged for registering, the tax is due regardless of preregistration, and the tax is not imposed as a precondition of disseminating the message. Thus, the tax at issue in the present case is akin to a generally applicable income or property tax, which may constitutionally be imposed on religious activity. Collection and payment of the tax does not violate the Ministry's sincere religious beliefs. California's nondiscriminatory Sales and Use Tax Law requires only that the Ministry collect the tax from its California purchasers and remit the tax money to the State. The only burden on the Ministry is the claimed reduction in income resulting from the presumably lower demand for the Ministry's wares (caused by the marginally higher price) and from the costs associated with administering the tax. To the extent that imposition of a generally applicable tax merely decreases the amount of money the Ministry has to spend on its religious activities, any such burden is not constitutionally significant. Though the Court does not doubt the economic cost to the Ministry of complying with a generally applicable sales and use tax, such a tax is no different from other generally applicable laws and regulations - such as health and safety regulations - to which the Ministry must adhere. Finally, in no sense has the State "conditioned receipt of an important benefit upon conduct proscribed by a religious faith, or denied such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs. The Ministry has never alleged that the mere act of paying the tax, by itself, violates its sincere religious beliefs. In fine, the collection and payment of the generally applicable tax in the present case imposes no constitutionally significant burden on the Ministry's religious practices or beliefs. The Free Exercise Clause accordingly does not require the State to grant the Ministry an exemption from its generally applicable sales and use tax. Although it is of course possible to imagine that a more onerous tax rate, even if generally applicable, might effectively choke off an adherent's religious practices (the burden of a flat tax could render itinerant evangelism "crushed and closed out by the sheer weight of the toll or tribute which is exacted town by town"), no such situation appears in the present case.

473 Victoriano vs. Elizalde Rope Workers' Union [GR L-25246, 12 September 1974]En Banc, Zaldivar (J): 9 concur, 1 took no part



Facts: Under Section 4(a), paragraph 4, of Republic Act 875, prior to its amendment by Republic Act 3350, the employer was not precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees." On 18 June 1961, however, RA 3350 was enacted, introducing an amendment to paragraph (4) subsection (a) of section 4 of RA 875, as follows: "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization." Benjamin Victoriano, a member of the religious sect known as the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. since 1958. As such employee, he was a member of the Elizalde Rope Workers' Union which had with the Company a collective bargaining agreement containing a closed shop provision which reads "Membership in the Union shall he required as a condition of employment for all permanent employees workers covered by this Agreement." The collective bargaining agreement expired on 3 March 1964 but was renewed the following day. Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Victoriano presented his resignation to the Union in 1962, and when no action was taken thereon, he reiterated his resignation on 3 September 1974. Thereupon, the Union wrote a formal letter to the Company asking the latter to separate Victoriano from the service in view of the fact that he was resigning from the Union as a member. The management of the Company in turn notified Victoriano and his counsel that unless Victoriano could achieve a satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service. This prompted Victoriano to file an action for injunction (Civil Case 58894) in the Court of First Instance of Manila to enjoin the Company and the Union from dismissing Victoriano. In its answer, the Union invoked the "union security clause" of the collective bargaining agreement; assailed the constitutionality of RA 3350; and contended that the Court had no jurisdiction over the case, pursuant to RA 875, Sections 24 and 9 (d) and (e). Upon the facts agreed upon by the parties during the pre-trial conference, the trial Court rendered its decision on 26 August 1965, enjoining Elizalde Rope Factory, Inc. from dismissing Victoriano from his present employment and sentencing the Elizalde Rope Workers' Union to pay Victoriano P500 for attorney's fees and the costs. From this decision, the Union appealed directly to the Supreme Court on purely questions of law.

Issue: Whether a "closed shop provision" in a collective bargaining agreement is to be considered violative of religious freedom.

Held: Both the Constitution and Republic Act 875 recognize freedom of association. Section 1 (6) of Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form associations or societies for purposes not contrary to law shall not be abridged. Section 3 of Republic Act 875 provides that employees shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely said that whatever theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or freedom, i e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and second, power, whereby an employee may, as he pleases, join or refrain from joining an association. It is, therefore, the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. It is clear, therefore, that the right to join a union includes the right to abstain from joining any union. Inasmuch as what both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the "right" to join associations of his choice, it would be absurd to say that the law also imposes, in the same breath, upon the employee the duty to join associations. The law does not enjoin an employee to sign up with any association. The right to refrain from joining labor organizations recognized by Section 3 of the Industrial



Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only members of the collective bargaining union, and the employees must continue to be members of the union for the duration of the contract in order to keep their jobs. To that all embracing coverage of the closed shop arrangement, Republic Act 3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization". RA 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their members with any labor organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to join. RA 3350, therefore, does not violate the constitutional provision on freedom of association.

474 Pamil vs. Teleron [GR L-34854, 20 November 1978]En Banc, Fernando (J): 4 concur, 4 concur in separate opinions, 3 dissent in separate opinions

Facts: Father Margarito R. Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque, Bohol. Thereafter, he was duly proclaimed. A suit for quo warranto was then filed by Fortunato R. Pamil, himself an aspirant for the office, for his disqualification based on the Administrative Code provision, which providest that "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or compensation from provincial or national funds, or contractors for public works of the municipality." The suit did not prosper as Judge Victorino C. Teleron, as Judge of the Court of First Instance of Bohol (Branch III) sustained the right of Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The matter was then elevated to the Supreme Court Tribunal by Pamil.

Issue: Whether an ecclesiastic or a priest may be elected as a public official.

Held: The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that "no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God." Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: "this Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an



incompatibility between the Administrative Code provision relied upon by Pamil and an express constitutional mandate. It is not a valid argument against this conclusion to assert that under the Philippine Autonomy Act of 1916, there was such a prohibition against a religious test, and yet such a ban on holding a municipal position had not been nullified. It suffices to answer that no question was raised as to its validity. Thus, the view that the Administrative Code provision is inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the present Charter, failed to obtain the necessary eight votes needed to give it binding force. The attack on the continuing effectivity of Section 2175 having failed, it must be given full force and application.

475 Torcaso vs. Watkins [367 US 488, 19 June 1961]Black (J)

Facts: Article 37 of the Declaration of Rights of the Maryland Constitution provides that "no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God." Torcaso was appointed to the office of Notary Public by the Governor of Maryland but was refused a commission to serve because he would not declare his belief in God. He then brought the action in a Maryland Circuit Court to compel issuance of his commission, charging that the State's requirement that he declare this belief violated "the First and Fourteenth Amendments to the Constitution of the United States." The Circuit Court rejected these federal constitutional contentions, and the highest court of the State, the Court of Appeals, affirmed, holding that the state constitutional provision is self-executing and requires declaration of belief in God as a qualification for office without need for implementing legislation. Hence, the appeal.

Issue: Whether Torcaso may be denied his office unless he declares his religious beliefs.

Held: When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment. That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. With these, neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. The fact that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution. This Maryland religious test for public office unconstitutionally invades Torcaso's freedom of belief and religion and therefore cannot be enforced against him.


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