Tuesday, September 22, 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.

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