Gag the Clergy?

FATHER JOAQUIN BERNAS, S.J. is mad in his Sounding Board column today, Churchmen and Charter Change. Political scoundrels who want to "gag the clergy," are misreading and distorting the principle of the Separation of Church and State to exclude churches, clergy and other religious persons from participating in politics, for example, by commenting on charter change moves by the government. I sympathize deeply with Fr. Bernas in that churchmen really are damned if they do and damned if they don't when it comes to speaking out on public controversies. Those scoundrels of which he speaks can easily get away with it in part because too many good citizens mistakenly think that the Constitution does forbid churches from "meddling" in politics, by criticizing or praising government officials and public policies; that it is unconstitutional for organized religions like the Catholic Church to endorse candidates for public office; or to take a stand on such controversial political issues like Charter Change, because this supposedly violates the "wall of separation" between Church and State.

These are pernicious and surprisingly durable misconceptions about the democratic principles of Religious Freedom. The Constitution places no such restrictions or sanctions on clergymen and members of religious faiths, because the Constitution steadfastly regards all such persons completely as private and ordinary citizens, who can't be singled out politically because of their creed. The Constitution does not diminish by one iota, the rights and freedoms of a citizen because of his or her religious beliefs or affiliations. So I'd like to help Fr. Bernas today in his commendable but difficult endeavour of writing newspaper columns for the sake of advancing the art of explaining particularly subtle and "difficult" concepts of law, religion and morality.

In the Bill of Rights Art. III Sec. 5 of the 1987 Philippine Constitution freedom of religion is established as follows --

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Father Bernas wrestles with the questions that are implicit and germane to the very powerful misconceptions that enthrall the public --

But whatever phrase may be used, questions arise. What may not be "established"? What precisely are being separated and how? Or, what is the "religion" which the Constitution says may not be "established," and what does it take to "establish" a religion? And what is "Church" and what is "State" whose separation must remain inviolable?

Here is my humble effort at an answer to Fr. Bernas' rhetorically posed queries. (I operate from a favorite tenet of my antecedent: "The Law is just a precision form of English Grammar and Composition.") First look at the red-bolded words in Art. III Sec.(5): religion and thereof.

These two words appearing together in the same sentence, refer to one and the same exact thing. What may not be established by the Law is also what the Law may not prohibit. Mysteriously and magically, in this equivalence one can actually discover the meaning of both, by using a practical algorithm!

This interpretation actually leads to a very practical way of deciding whether something involving separation of church and state is unconstitutional under this provision or not and answers Father Bernas' question about what it is, exactly, that it is unconstitutional for the State to establish or to prohibit, a point of great confusion for the general public and even for many bloggers, editorialists and columnists.

For example, is it okay to "gag the clergy" because they are violating the separation of church and state? Should the State prohibit the clergy from speaking out on such a very political thing as the resignation of the President or the people's initiative to undertake Charter Change. Well, would it be Constitutional for the State to pass a law requiring the churches to speak out on those same issues? I think most reasonable citizens would say it is unconstitutional to require the clergy to so express their views. ERGO it is unconstitutional to prohibit or gag the clergy from expressing such opinions. Quod erat demonstrandum!

In this first sentence also, the Constitution forbids the State from "respecting an establishment of religion." Although most people agree this does mean it is unconstitutional to establish a full blown State Religion (e.g. an official Church of the Republic of the Philippines), there seems to be little agreement on what else is forbidden under this category.

What laws, policies or actions on the part of the State would constitute unconstitutional establishment of religion? (other than the establishment of a full blown State Religion?)

Rather than give a theoretical answer, I like the following practical algorithm for determining whether "X" is an unconstitutional establishment of religion:

Imagine that the State were to prohibit the practice of "X" by religious persons, such as clergymen. If such prohibition is deemed unconstitutional, so would respecting its establishment. And it works in the other direction too.

For example, it is clearly unconstitutional to prohibit people from gathering together in churches to peacefully assemble and pray to the deity of their free choice. Consequently, it is also unconstitutional for the State to pass a law requiring that citizens go to Church every Sunday.

Likewise, if the Government passed a Law requiring every organized religion in the country to make commentary in writing on the policies and initiatives of the President, that would seem to be an unconstitutional dragging of religion into politics, a promotion or establishment of religion in a realm it may not want to be involved in. But conversely, it is unconstitutional to prohibit the same churches from making such comments. Again, quod erat demonstrandum. Fr. Bernas is right! Gagging the clergy is indubitably unconstitutional.

Finally, the most important thing about Separation that needs better explaining is that the Principle of Separation of Church and State is addressed exclusively to the State as a demand of absolute neutrality when it comes to Religion. The State may neither promote religion nor prohibit its free exercise. The Churches on the other hand, are completely free to promote and practice all the Religion they want. That's the Law.

I should end with that emphatic point in the very last sentence of Art.III Sec(5) that the gaggers steadfastly ignore and talk and act as if it did not exist: No religious test shall be required for the exercise of civil or political rights.

The wall of separation that must remain inviolable, is that wall of protection for the people's religious liberty, the wall whose bricks are the rights of privacy, whose mortar is freedom of speech, expression and peaceful assembly, that demands the State mind its own business and not meddle in the free exercise of democratic rights. Even if you wear a cassock or a cilice!

All other requirments being met, Archbishop Angel Lagdameo or Manila's Gaudencio Cardinal Rosales could even run for President, if they were unfortunate enough to have such an insane ambition.

To the Comment Thread: Can the Catholic Church or any other religion field itself in the Party List elections?