Wednesday, January 6, 2010

How COMELEC Violated Separation of Church and State in the Ang Ladlad Case

The title may puzzle some readers since the present controversy does not involve any Church or religious  issue as such. Instead it has to do with a gay rights organization being denied participation in the 2010 Party List election on the grounds that it's political program is immoral and a danger to the Youth; that it's members have been living immoral lives; and that they have even been dishonest about these alleged facts of their personal and collective immoralities in filings for accreditation as a party list organization.  Yet these judgments of disqualifying immorality were arrived at by three Comelec commissioners explicitly as the result of applying not one, but two religious tests based on Biblical and Quranic scriptural quotations about homosexuality.  This is contrary to Law and a grave abuse of discretion since the exercise of civil and political rights is specifically protected against the application of such religious tests--
The 1987 Philippines Constitution's Bill of Rights  Article III Section 5 defines the Principle of the Separation of Church and State in three key provisions:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. (Nonestablishment Clause) 
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. (Freedom of Religion clause). 
No religious test shall be required for the exercise of civil or political rights. (No Test clause)

In SPP 09-228 the Comelec denied a petition to run in the 2010 Party List elections from  Ateneo Professor Danton Remoto, and the Ang Ladlad LGBT Party, (a sectoral organization of self-described Lesbians, Gays, Bisexuals and Transgender persons) on the ground of IMMORALITY.  A Petition for Certiorari has been filed before the Supreme Court assailing the Comelec resolution.

Everybody should care about this case because it is about what the State can and cannot do to anybody under the Constitution.

Based on commonly accepted statistics, the chances are that you, dear Reader, would not identify yourself as a lesbian, gay, bisexual or transgender person (although the chances that you might identify as LGBT--are not necessarily imponderable or even small.)  Of course there are no official statistics since these categories are not part of the population census, which goes as far as distinguishing males and females but not sexual preferences or personal practices.

Nevertheless, anybody who is not a hermit knows of, works, lives with, or is related to someone who is homosexual. In every historical epoch and every civilization, homosexuals have constituted some fraction of the human population. In Philippine society, some of our most famous personalities in show biz and politics are homosexuals (both male and female). Recently the Comelec Chairman Jose Melo even claimed that homosexuals are well represented in the Congress--which might've been a better excuse for disqualifying Ang Ladlad--by claiming they do not represent a marginalized sector of society!

The SEPARATION of CHURCH and STATE is a favorite topic of mine.

Nowhere else does the Law approach the wit of Poetry than when it defines the relationship between Government and Organized Religion in the Nonestablishment clause; between Theology and Morality in the No Religious Test clause; and upholds a Freedom of Religion so broad it protects the pious and devout's Freedom OF Religious Profession and Worship with dedication equal to that of the Atheists' Freedom FROM Religion.

The American roots of 1987 are quite obvious in the corresponding US Constitution of 1787.
The No Religious Test clause of the United States Constitution is found in Article VI, section 3 where it appears in the context of qualifications for public office:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but, no religious test shall ever be required as a qualification to any office or public trust under the United States.
This principle evidently predates the so-called Establishment Clause in the US First Amendment (Bill of Rights, Freedom of Religion, Speech and of the Press)--
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Several things are immediately noteworthy in comparing US and RP formulations:

(1) Both Constitutions define Separation of Church and State as a series of PROHIBITIONS upon the State regarding what it can and cannot do with regard to religion.

(2) Freedom of Religion is inextricably linked to Freedom of Speech and Expression and is indeed a proper subset of that much larger body of personal and common liberty guaranteed by both Constitutions.

(3) The No Religious Test provision of the US Constitution, which largely applies to the qualifications for government officials, is vastly expanded under the 1987 Philippine Constitution to cover "the exercise of civil and political rights". This much stronger principle amounts to a No Theology Clause and is the inspiration for this blog's motto that "Democracy is all Morality but no Theology."


Separation of Church and State has lately figured prominently in three fresh controversies.

The first involves Danton Remoto and the Ang Ladlad LGBT Party of "Lesbians, Gays, Bisexuals and Transgenders" which has been denied participation in the Party List system of representation in Comelec Resolution SPP 09-228 "on moral grounds".

What are these "moral grounds"?

First, Comelec cites Ang Ladlad's own description and definition of its LGBT membership and their sexual orientation as
"a person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different qender, of the same gender, or more than one gender."
Comelec asserts that,
"This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs."
Comelec finds that the Petitioner maintains IMMORAL BELIEFS whose offensiveness to religious beliefs Comelec demonstrates by quoting from the Christian Bible and the Islamic Q'uran passages that condemn to "fire and brimstone" various forms of homosexuality.

In a Comment from the Comelec's own Legal Dept,
"The 'ANG LADLAD' apparently advocates sexual immorality as indicated in the Petition's par. 6F: 'Consensual partnerships or relationships by gays and

(2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969)."

Next, Comelec finds that Ang Ladlad Party has been UNTRUTHFUL,

"Petitioner should be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections".

But the resolution does not mention which laws, rules or regulations relating to elections the Petitioner has not complied with.

Third, and most seriously , the Comelec rules that allowing Ang Ladlad LGBT to participate in the Party List elections would result in spiritual and moral degradation of the Youth by exposing them to an immoral and corrupting environment:
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A said in one article that ''older practicing homosexuals are a threat to the youth"11. As an agency of the government, ours too is the State's avowed duty under Section 1312, Article II of the Constitution to protect our youth from moral and spiritual degradation.

We are not condemning the LGBT, but we cannot compromise the well-being of the greater number of our people, especially the youth.
COMELEC has opened a Pandora's Box of Trouble by declaring as IMMORAL the doctrines, emotional preferences and sexual practices of the Ang Ladlad Party of self-described lesbian, gay, bisexual and transgender members.

Surely its own ruling obligates Comelec to ensure that NOBODY else filing a COC is guilty of the same immoral doctrines, emotional preferences and sexual practices it has condemned in Ang Ladlad's LGBTs. Moreover, I don't see how they could look the other way at heterosexual immoralities, infidelities, indiscretions of individuals and party lists.

In effect, SPP 09-228, the Resolution denying Ang Ladlad accreditation, imposes novel standards of SEXUAL MORALITY that must be met by all candidates--local, provincial and national -- to participate in the 2010 elections.

It would be grossly discriminatory to apply the new Morality Test only to Ang Ladlad. So I think the Comelec en banc will see the wisdom of reversing this Resolution and accredite Ang Ladlad.

The conclusions of Comelec about the immoral beliefs and practices of the Ang Ladlad Party were quite clearly reached as the result of applying RELIGIOUS TESTS to the perceived lifestyles and beliefs of the LGBT community (which Comelec's Chairman Melo claims is a large subset of the population well-represented even in Congress!).

A justifiable suspicion that Comelec has GRAVELY ABUSED ITS DISCRETION in this case arises now that such RELIGIOUS TESTS have resulted in the denial of civil and political rights to participate in the Party List system of representation


Jun Bautista said...

The US case of Kurtzman v. Lemon, closely adhered to by the Philippine Supreme Court in approaching establishment cases, provides the following tests (Lemon test) in determining whether a particular governmental action violates the establishment clause:

1. The governmental conduct or regulation must have a secular purpose.

- Seemingly, Comelec's resolution of Ladlad's case has a secular purpose, to wit: to determine Ladlad's eligibility to be accredited as a party-list.

2. It has the primary effect of neither advancing nor inhibiting the free exercise of religion.

- The primary effect, however, of the resolution - in using religion as a basis by quoting the Bible and referring to religious faith (presumably of the commissioners) -is to advance religion, plain and simple. Comelec imposed its religious belief as regards to LGBTs.

3. It does not involve excessive government entanglement with religion.

- It definitely involved excessive government entanglement with religion.

Clearly, Comelec's resolution failed the tests and, therefore, violates the establishment clause.

Furthermore, in adverting to morality, Comelec used religious morality rather than secular or public morality. While the Civil Code and Revised Penal Code have clear policies against immoral conducts and doctrines, the standard is secular or public morality and not morality based on any religious belief. To date, I've yet to see any law in the Philippines that criminalizes or prohibits LGBTs.

Finally, Comelec unlawfully classified LGBTs in violation of the equal protection clause. Like women, LGBTs cannot validly be classified as a different class in their exercise of civil and political rights.

Dean Jorge Bocobo said...

Hi Jun. Thanks for this. There are also many US cases on the Religious Test clause, which I think is more pertinent to this case, as opposed to

Joselito Basilio said...

Under RA 7941, the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:
1) It is a religious sect or denomination, organization or association organized for religious purposes;
2) It advocates violence or unlawful means to seek its goal;
3) It is a foreign party or organization;
4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;
5) It violates or fails to comply with laws, rules or regulations relating to elections;
6) It declares untruthful statements in its petition;
7) It has ceased to exist for at least one (1) year; or

None of grounds for cancellation of the petition cited by the COMELEC is within the ambit of any of the foregoing grounds.

GabbyD said...

what about the argument that the govt/comelec is tasked by law to uphold morality. in so far as the community morality and xtian morality coincide, would this still be under the ambit of the religious test concept?

Dean Jorge Bocobo said...

I like to think that "the task of upholding morality" is indistinguishable from and completely subsumed under the task of upholding the Law and maintaining good public order. I do not think there is anything beyond this essential duty for the State to be doing about "morality".

Jun Bautista said...


The establishment and free exercise clauses of the first amendment to the US Constitution broadened and strengthened the no religious test clause of Art. VI (US Constitution) as held in Torcasio v. Watkins, 367 US 488 (1961), a religious test case, by broadening the protections to religious freedom.

The no religious test clause was directed at the historical practice in the colonies of requiring a person to have or adhere to a particular religious belief before being allowed to assume a public office. This created the effect of govt establishing a religion by favoring the religious belief to which an applicant for public office is being required to adhere or to take an oath of belief in, and at the same time violates the applicant's freedom to believe in a religion of his/her own choice or not to believe. Thus, the establishment clause makes it more explicit that gov't shall not favor one religion over another, or the religious over the non-religious and the free exercise clause allows individuals to exercise a religion of their own choice, which includes the right not to have a religion at all. It is my opinion, therefore, that the case is best analyzed under the establishment and free exercise clauses for the reason that Comelec's resolution created the effect of establishing religion by resorting to religious bases in making its ruling; it made a religious preference by imposing religious standards on Ladlad's application for accreditation. In the process, it also violated the free exercise clause in imposing on Ladlad the religious view abhorring LGBT's and their practices as immoral, to which Ladlad evidently does not subscribe to.

GabbyD said...


"I like to think that "the task of upholding morality" is indistinguishable from and completely subsumed under the task of upholding the Law and maintaining good public order"

if it were thus, the law wouldnt bother to mention morality at all.

Dean Jorge Bocobo said...

The Law IS morality. Through and through. With power to enforce! But with truth and justice for all. hehe. It is only a philosophical point, if you will.

jcc34 said...

Happy New Year Dean,

Your hyperactive bias against the Church is spinning out of control again. I see no religious bias in the decision of the Comelec, only a lot of “obiter”. Methink, the SCORP will throw out the petition even without citing religious or constitutional grounds: “Comelec did not abuse its discretion” in denying Remoto and Ladlad party in disqualifying them on morality grounds, the Petition cannot be given due course”. SCORP.

Ladlad defines itself as a group of persons with capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different qender, of the same gender, or more than one gender."

All you have to do is to read promoting “sexual relations with individuals of different gender, of the same gender, or more than one gender”, then read the civil code and the penal code on the matter, voila, you can come up with the conclusion that the party is promoting immorality.

Or the SCORP can simply say that lesbians and transsexuals are not marginalized. The entertainment industry is full of it, Congress have them and finally the SCORP have them.

Although the civil code did not define marriage as a relationship between a man and a woman, but there are abundant provisions in the code referring to husband and wife and not husband and husband and wife and wife or a male or a female instead of male and male or female and female. Example:

Art. 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years or upwards, not under any of the impediments mentioned in Articles 80 to 84, may contract marriage.

Art. 62. Males above twenty but under twenty-five years of age, or females above eighteen but under twenty-three years of age, shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage shall not take place till after three months following the completion of the publication of the application for marriage license. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall accompany the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn declaration. (n)

Art. 111. The husband is responsible for the support of the wife and the rest of the family. These expenses shall be met first from the conjugal property, then from the husband's capital, and lastly from the wife's paraphernal property. In case there is a separation of property, by stipulation in the marriage settlements, the husband and wife shall contribute proportionately to the family expenses. (n)

Art. 112. The husband is the administrator of the conjugal property, unless there is a stipulation in the marriage settlements conferring the administration upon the wife. She may also administer the conjugal partnership in other cases specified in this Code. (n)

Art. 113. The husband must be joined in all suits by or against the wife, except:
X x x

jose_12650 said...


X x x
(4) If the administration of all the property in the marriage has been transferred to her, in accordance with Articles 196 and 197;
(5) When the litigation is between the husband and wife;
(6) If the suit concerns her paraphernal property;
X x x
In the cases mentioned in Nos. 7 to 10, the husband must be joined as a party defendant if the third paragraph of Article 163 is applicable. (n)
Art. 114. The wife cannot, without the husband's consent acquire any property by gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. (n)

(1) Those contracted under the ages of sixteen and fourteen years by the male and female respectively, even with the consent of the parents.

(2) Art. 109. The husband and wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support. (56a)

Bigamous and polygamous marriage or non-marriage is being advocated by LADLAD and therefore violative of the Civil Code and the Penal Code:

Art. 80. The following marriages shall be void from the beginning:
X x x
(4) Bigamous or polygamous marriages not falling under Article 83, Number 2;
Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code.

Under the provisions of the Penal Code:

Art. 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correccional in its medium and maximum periods.
If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.
Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

GabbyD said...


i have no doubt that marriage is considered a union of a man and woman under the law.

but why does that make homosexuality immoral?

do you have the same opinion as djb? the law=morality?

jose_12650 said...

i think because the law said that you cannot promote sexual relationship between the same sex. homosexuality itself is not immoral because it is endowed to a person upon birth or acquired by predisposition to that particular orientation. it is when you practice your orientation with another with the same orientation that society considers the practice immoral.

GabbyD said...


well, the law says marriage is between a man and a woman. but not that sex between same gender is illegal.

is there a law that prohibits that?