Friday, September 25, 2009

The Religious Exception

Just a little over a month after Republic Act No. 9710, otherwise known as the Magna Carta of Women, has been approved, the Catholic Church is already laying the basis for an exemption from the full application of the law. In a speech during the Catholic Educational Association of the Philippines (CEAP) national convention, Monsignor Gerardo Santos, the association's president, said the CEAP will seek exemption from the provision of the law outlawing the expulsion or non-readmission of women employees or the non-admission of women in schools, on account of pregnancy outside of marriage.

Monsignor Santos is asserting CEAP member-schools' right to academic and religious freedom and vows he will see to it that such exemption is inserted in the law's implementing rules and regulations.

If and when a case involving this issue reaches the Supreme Court it will be the second of its nature. The first that landed on the Supreme Court is the 2003 case of Estrada v. Escritor (A.M. No. P-02-1651). For the first time in Philippine jurisprudence, Escritor laid down the rule on exemption of religious conduct from the application of a generally-applicable law. Briefly, the case involves a court employee, Escritor, who has been living with a man for years without the benefit of marriage. This man also happens to be married, although separated, with another woman. When an administrative complaint for immorality was filed against Escritor, she raised as a defense that her cohabitation with another man is sanctioned by the tenets of her religion and was with the knowledge and approval of her congregation's religious leaders.

In a lengthy and exhaustive opinion that is more of a dissertation rather than a court decision, then Associate Justice Reynato Puno, writing for the majority, said that the free exercise of religion clause of the Constitution protects the rights of individuals to engage in certain religious conduct - even if contrary to the provisions of existing law (read as exemption) - as long as it is based on sincerely-held religious belief and the state has no compelling interest to burden the exercise of such religious conduct. Three years after remanding the case to the Office of the Court Administrator (Supreme Court office that investigates complaints against court employees) - to determine the sincerity of the belief and its centrality to the professed believer's faith and allow the government adduce proof of a compelling state interest to penalize the non-marital relationship - the Supreme Court found for Escritor by ruling that the freedom of religion or free exercise clause of the Constitution exempts her from the provisions of the Revised Administrative Code penalizing immoral conduct.

While the Supreme Court recognized the state's legitimate interest in protecting the institution of marriage and the family, it refused to accept the government's claim of compelling state interest on such broad and general principles; it wanted more narrow or specific interests of the government that will be subverted if the non-marital union of Escritor with another man is not penalized.

The Supreme Court laid down the following important criteria when courts can carve out an exemption from a law of general applicability based on religious conduct, namely: (1) the law burdens religious freedom; (2) claimant's sincerity in his/her religious belief; (3) there is no compelling state interest involved; and (4) the burden on religious freedom is the least intrusive means of achieving the government's objective.

It is clear from the foregoing criteria that the fact that a law burdens a religious belief and its exercise, and such belief is sincerely-held by a person, if there is a compelling state interest involved and there are no alternative means of pursuing that interest, the claim of religious exemption will fail. Thus, in the American case of US v. Lee the Supreme Court of the United States found a compelling state interest in sustaining the fiscal viability of the social security system through mandatory contributions when it denied the Amish religious group's claim of religious freedom in refusing to pay social security taxes. On the other hand, the need to maintain peace and order and punish violent crimes would be a compelling state interest that would defeat a claim of religious freedom in, for example, religious practices involving human sacrifices.

The compelling state interest test is, therefore, a check on pleas for religious exemption, while at the same time it guarantees religious freedom under the free exercise clause by requiring only the strictest scrutiny of regulations, although secular in nature and are of general applicability, that incidentally burden religious freedom.

CEAP will undoubtedly rely on the criteria enunciated in Escritor in seeking the exemption from the Magna Carta of Women. Whether or not there is a compelling state interest in burdening the Catholic Church's moral doctrine as applied to unwed mothers will be a question the courts will have to address. But what is clear is that Escritor has paved the way for religious groups in seeking exemption from a law which, although is religion-neutral on its face, has the incidental effect of burdening the exercise of religious freedom.

SOURCE: Philippine Commentary



That's a form of bigotry...

Jun Bautista said...

It may be Hillblogger, but the Constitution grants religious freedom even to bigots.

Jesusa Bernardo said...

While it seems discriminatory, the Catholic bishops do have a point on religious/moral grounds.

Thing is, the "unwed" criteria should also be applied to males--"unwed fathers"--so it won't be gender discriminatory. And why not, DNA paternity tests are now available so any claim of fatherhood out-of-wedlock against any teacher/employee should also be investigated by the Catholic Church.

Otherwise, the Church, in seeking such exemption, is itself being immoral. Sexist or misogynistically immoral, that is.

GabbyD said...

i agree with jesusa.

let this "rule" be applied to men as well as women.

Dean Jorge Bocobo said...

The instant case and that of Escritor stand in stark contrast to each other in that the latter was a case of two persons living out a religious belief in the condition of their own lives together, whereas the assailed policy and practice sought to be exempted on grounds of religious freedom is NOT mandated by the Catholic Church itself or its hierarchy, but only done by SOME Catholic Schools. For example, the St. Scholastica nuns do not implement expulsion of pregnant students at all. This proves there is no issue involving Catholic theology or moral imperatives therefrom, but rather, only the prejudicial policy of certain Catholic educational institutions. I daresay, it probably does not even involve the majority of CEAP members, who practice a discreet compassion instead. Msgr. Gerry Santos is not highly regarded as an intellectual heavyweight among CEAP insiders, but represents a radical fringe.

Jun Bautista said...
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Jun Bautista said...

The Catholic Church prohibits sex outside of marriage and, therefore, pregnancy outside of marriage.

Jun Bautista said...

@ Jesusa - the problem is no matter how discriminatory will the policy of the Church be, it is unlikely that courts will look into it for it is not for them to make determinations about the validity, correctness or truthfulness of a particular church's doctrines. It is a purely ecclesiastical matter.

Jesusa Bernardo said...

Come on Jun. You just said "The Catholic Church prohibits sex outside of marriage," so that is the doctrine. Women can't do sex without men (majority norm), so men can do sex outside marriage.

"... and, therefore, pregnancy outside of marriage."
Then you should add here: MAKING SOMEONE PREGNANT outside marriage --something done by men--also violates the doctrine.

So that's my point, respect the doctrine by all means--but apply it to BOTH women and men. Otherwise, that's half-application of the doctrine. And since that half-application targets only a specific gender out of two (normal, that is ), then that's discriminatory application of a doctrine the Church hopes to get exemption with.

Jun Bautista said...

My point Jesusa is that uneven application of the Church's teaching among its members is something internal for the Church. The courts cannot say that the Church cannot claim religious exemption because it is applying its belief in a discriminatory manner, for it might even be possible that the belief itself is intended to apply only to women, however unjust such arrangement is. The inquiry will be limited to whether the belief is sincerely-held and not just being claimed to escape the application of the law and whether the law burdens the exercise of such belief. Courts will not inquire into the justness of the belief nor declare it wrong. But don't get me wrong, I agree with you that the doctrine should equally apply to men and women.

Jesusa Bernardo said...

If one test is whether it is 'sincerely held,' then all the more the doctrine should be shown to apply also to men.

It is clear as day that the doctrine's wordings call on everyone to do sex only within the bounds of marriage--female nor male gender neither singled out. As you say, the authorities won't look into the justness of a doctrine, so the basis will simply be how it is presented--the wordings.

Ergo, if that doctrine is indeed sincerely held, then the authorities should see that it is being applied as the meaning--based on the wordings--intends. No sex outside marriage--male or female.

Jesusa Bernardo said...

@ Jun,

I think the issue there is more of proof of sex outside marriage. It is so obvious with women as, of course, the tummy grows.

Thing is, gone are the days of paternal insecurity--or paternal anonymity. With the availability of paternal DNA testing, it can now be determined reliably who fathered whose baby.

So for purposes of Church "morality," there is now proof of men having committed sex outside marriage. If the Church bishops want exemption from the Magna Carta, they should show sincerity of adhering to their own doctrine by applying it to both women and men.

Jun Bautista said...

Jesusa we are talking of two different things. You are talking about the need for the Church to evenly apply its doctrine, without discrimination among men and women. Like I said I agree with you. I, on the other hand, am talking about how the courts might address a claim for religious exemption from the application of a law of general applicability. As regards your position it is something that the Church should look into if it were to be consistent in its moral teachings. In regard to what i'm saying, the courts will only determine the claimed religious doctrine if it's really part of the Church tenets (it is truly a held belief and not merely concocted to escape the application of the law). The courts cannot say the belief is wrong or being applied incorrectly. Thus, in the case of Ebralinag v. Division Superintendent - which is about the refusal of Jehovah's Witnesses students in saluting the flag and reciting the pledge of allegiance - the Supreme Court rejected a previous ruling rejecting the JW's belief that a
flag raising ceremony is a religious ceremony and constitutes worship of the flag. The Court ruled that it is not for it to determine the validity of the JW's belief as long as the same is truly part of the tenets of its religion. There is no question that extramarital sex is against the Catholic teaching and so the test of a sincerely-held belief can very well pass. Now whether or not it is right that the Church should apply that only to women - deplorable as it may be -is something the courts will not look into for the purpose of determining whether the Church can claim an exemption, for to do so will be invading the Church's ecclesiastical authority and amount to interfering with the free exercise of religion clause. Tha is something better addressed to the Church authorities.

Jun Bautista said...

By the way we are talking of the Magna Carta of Women that's why the exemption being claimed concerns women only. The law makes it unlawful to expel women on account of pregnancy outside of marriage, so it is understandable that the CEAP will only be seeking exemption on what the law covers.

Dean Jorge Bocobo said...

My basic assertion is that the assailed policy and practice of SOME Catholic schools is NOT an exercise of a theologically prescribed moral imperative.

In other words, even though the Catholic Church considers it a mortal sin to become pregnant outside of marriage through illicit sex, it does not in fact make it a moral imperative for an educational institution to expel such female student or teacher, does it?

Therefore, it would appear to be not an exercise of obedience to religion, and there not protected as religious belief, to expel a pregnant unmarried female solely for becoming pregnant.

I think Tony Carpio's Dissenting Opinion in Estrada v. Escritor states the point succinctly:

As early as in 1933 in People v. Bitdu,[23] this Court has ruled that religious practices cannot override laws relating to public policy.

GabbyD said...


i agree with you analysis @5AM.

but i think jesusa still has a point. lets assume that premarital sex is central. the rule that is central to belief isnt only about women, its about getting pregnant. getting pregnant is a function of the male and the female.

lets assume further that the church rejects the common sense conclusion that this involves both men and women.

then, the SC should argue that the "sincerity" of the church is put into question.


they come up with a doctrine that they interpret freely and indiscriminately.

second point:

the fact is that this rule/doctrine premarital sex isn't central to EDUCATION by catholic schools.

some schools have strict rules, others do not.

some have different policies.

a policy that is central ought to be clear to everyone in the religion and ought to be applied consistently.

in this case, it is not.

Dean Jorge Bocobo said...

It is of course impossible for any Court or government agency, not even the Congress or the President to grant the Catholic Church or any of its instrumentalities, a BLANKET EXEMPTION from the law, including the Magna Carta. That cannot be done in any other contest than a court case, probably involving SCoRP. The next time some Catholic School expels a female student, the latter may hail it to Court for violation of said provision in the Magna Carta. There is no escaping that circumstance!

Dean Jorge Bocobo said...
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Jun Bautista said...

Dean, it is true that the Church does not have a doctrine re expulsion of unwed mothers, but the very object of the policy is precisely to discourage violation of its doctrine against illicit sex and as a means of enforcing it. The practice, it would appear, is in pursuance of that doctrine.

Regarding Justice Carpio's dissent, his sweeping statement that you cited disregards another equally important, if not more important, public policy mandated by no less than the Consitution, namely: the free exercise of religion.

Jun Bautista said...


The CEAP is asking exemption from a provision of law relating to women, so understandably its policy as it relates to women in relation to the Church's doctrine against extramarital sex will be the issue and not whether or not the same doctrine is being evenly applied to men as well.

GabbyD said...


"The CEAP is asking exemption from a provision of law relating to women..."

its asking for an exemption from a law that allows discrimination against women. they are seeking such discrimination, based on a doctrine/idea that does NOT discriminate between men and women (premaritial sex)

it would be consistent if there were a doctrinal basis for a difference of treatment between men and women for whatever reason.

but there is NO such difference here (for premarital sex).

since they desire discriminatory treatment due to a principle which is NOT discriminatory, you can doubt their sincerity, at the very least.

Jesusa Bernardo said...


I don't think we are talking of different things. The bone of contention will be the phrase "sincerely held," which you simplistically equate with just being held.

Why it was phrased to include "sincerely" means it would be tested for just that--proof will be asked other than mere professing of a doctrine. Something like when a man professes true love, the woman asks for proof other than mere talk.

You argue that the courts won't care whether the Church actually applies their doctrine in a discriminate fashion. I don't think the courts will be so naive/restrictive not to consider that the law the 'no sex outside marriage' doctrine seeks exemption from does in fact aim to abolish the gender discrimination in society.

Herein could enter the test for "sincerely held." The courts could look into how that doctrine is exercised. The Church could perhaps show they've mostly expelled unwed mothers since time immemorial but the courts, being well aware of the abolish-the-gender-discrimination aim of the Magna Carta, could just consider whether the former sincerely holds that doctrine even in situations involving every body else, men included.

Jun Bautista said...

Jesusa & Gabby,

I see your point: that the sincerity of the Church's adherence to its belief of "no extramarital sex" will be seriously put in question if in fact it is trying to enforce such belief to women only by its practice of expelling only unwed mothers and not those who fathered the children - who are equally guilty of extramarital sex.

However, if in fact this has been a long standing practice by the catholic schools seeking exemption, as an implementation and enforcement of the belief against extramarital sex, it would in fact show strong adherence by the schools concerned of a religious practice that discriminates against women. How a religious group practices or enforces its belief is not for the courts to judge. Stated differently, courts cannot say that a particular religious belief or practice is wrong or discriminatory. What the courts, however, can do is to determine if there is a compelling state interest in burdening or preventing that religious practice.

Jesusa Bernardo said...

"How a religious group practices or enforces its belief is not... What the courts, however, can do is to determine if there is a compelling state interest in burdening or preventing that religious practice."

Exactly why the state enacted the Magna Carta of Women is because the protracted gender discrimination against its female members is compelling enough to take encompassing action.

It may even be that the law's authors considered such Catholic school discrimination against women. What I know is that there has been a long list of complaints against such practices, including, I think, against the children of single mothers wishing to enroll them in Catholic schools.

Jun Bautista said...

That is the more interesting question Jesusa, is there a compelling state interest in preventing or regulating a particular religious conduct such as the practice of expelling or non-readmitting unwed mothers? I hope everyone can provide their inputs on this issue as I believe it will be pivotal in determining whether the grant of exemption is valid. The courts, in protecting religious freedom guaranteed under the Constitution, are careful enough to recognize also the interest of the State in protecting and promotimg the public welfare by applying the compelling interest test vis-a-vis a claim for religious exemption.

Anonymous said...

A Philippine educational system that is largely in the hands of the Catholic regime and what do we have?

A wealthy Catholic church and a divided nation of super rich and super poor.

Isn't it about time to also review the Church's exemption from paying taxes?


Jun Bautista said...


That would mean changing the Constitution and overturning years of established judicial precedents.

Anonymous said...

the estrada vs. escritor decision of the supreme court says it all. that landmark decision significantly expands the parameters of the "free exercise" clause.

i am presently confronting an administrative case concerning uniform requirements for government employees. being in an academic institution, i invoked constitutional rights on the freedom of expression, philosophical and conscientious objection, academic freedom and "freedom of exercise clause of the constitutional guarantee for religious freedom.

i obtained two US jurisprudence and providentially i stumbled on the estrada vs. escritor case. as one observer noted, it was more of a dissertation than a court decision, for it literally says it all. very impressive as it expands the parameters of the "free exercise" clause.