A little more than a month ago, the Supreme Court promulgated a Resolution of a case it captioned “Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City.” It is not often that letters occasion the enunciation of doctrine. This was one of them. Another was a letter that then-Associate Justice Reynato Puno wrote the Court on the matter of seniority following the reconstitution and reorganization of courts under the Aquino revolutionary government.
The letter occasioned the revival of the question of how “separation of Church and State” is to be construed and what “non-establishment” and “free exercise” precisely mean. Ultimately, the majority opinion, penned by Justice Jose Catral Mendoza of the “RH Law Case” fame, upheld the “benevolent neutrality” stance that Chief Justice Reynato Puno, in his yet unbeaten, masterful treatise in Estrada v. Escritor, taught about how the Philippine legal system defined the State’s posture towards religion: That it will neither establish nor support a religion. In this respect, it will be neutral. But it will accommodate religion as long as no offense is done public policy and the laws. And the State will interfere in the practice of religion only on the basis of a “compelling state interest.” And therefore, yes, Masses may still be celebrated in Halls of Justice.
But the penultimate paragraph of the Resolution signals something ominous to me, as I have had no sympathy at all for the “neutrality=hostility” equation that is clearly fallacious and an affront to the spirit of the Constitution. There shall be no permanent display of religious icons in all halls of justice in the country. These may be “displayed” only during religious services, after which they are to be “concealed from public view.” First, while “halls of justice” alone are mentioned, is the reasoning underlying the stricture not applicable to all public offices as well? And from there, is it not rather a short step towards the French brand of “laicite” that forbids the display of religious symbols or tokens of religious affiliation in public spaces? How far are we being taken? Then, there is the instruction that they be “concealed from public view.” And the reason is because their display or very visibility is offensive to those who do not believe. And this is the Gordian knot of this discourse. Secularists want public spaces shorn of all religious symbols. The mere sight of these tokens of faith is offensive to them—or so they claim. Believers, for their part, want to be left free to exhibit their faith —even in the public offices where they work. For it is part of their belief that they remain members of their churches and of their faith communities even while serving in public office. When the State decrees that there shall no religious symbols in public offices, such as Halls of Justice, it is not being neutral. It is adopting the secularist line!
The singing of hymns, the measures of chant and the recitation of prayers—all these, in public offices, it is claimed are an affront to those who choose not to believe. Really? How so? Not really because the manifestation of faith challenges or spites their agnostic, skeptical, atheist or areligious position, but because they have no tolerance for anything that smacks of faith and religion. But why should the State and the law countenance intolerance? No matter where one may be—even inside one’s chambers in the Supreme Court as a magistrate of the highest court of the land—one will hear the pealing of church bells, or, if there is a mosque nearby, the muezzin’s call to prayer. Are these offensive if one chooses not to be affiliated with any sect or religion, or if one maintains the philosophical position: “God does not exist?” No, more assuredly not, unless one has no tolerance for the expressions of the faith of others. Enforced secularism is as inimical to liberty as is enforced religion!
One last point: It is the Americans who made us believe that the “separation of Church and State” is indispensable to a democracy. The United Kingdom has the Church of England as state religion, and the Queen is head of the Church, and British democracy is a thriving, vibrant democracy as the debates on Westminster make abundantly clear. Indonesia does not insist that it be indifferent towards Islam to be democratic, and few will doubt that it is a democracy. That kind of separation that has engendered such misleading metaphors as “wall of separation” is of American provenance, and it amazes me no end that while we can be so adamant about freeing ourselves from the colonial apron strings of America from US bases to the mere presence of uniformed personnel in the Philippines, we are doctrinally parasitical on what is, at best, an incoherent, inconsistent juridical posture on the relation between Church and State.
Chief Justice Puno put it with characteristic intellectual maturity and juridical acuity when he identified where the problem lay:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the US Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to borrow authorities from US jurisprudence without articulating the stark distinction between the two streams of US jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of US religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have US authorities to support it.
And I ask: Why should we be willing heirs to juridical incoherence?
rannie_aquino@csu.edu.ph
rannie_aquino@sanbeda.edu.ph
rannie_aquino@outlook.com
