I USUALLY do not read tabloids, but a few days ago one carried an article intriguingly titled, “OK na ang live-in ayon sa SC” [“Live-ins are OK, according to Supreme Court”]. I immediately thought Estrada v. Escritor, a case the Court had dealt with in 2003. Of course, the Court never said -- and could never have said -- that live-in unions are OK, but putting things as the tabloid did is certainly one reason tabloids sell!
Escritor was an administrative case against a judicial employee charged with immorality. In 2003, it took all of 200-plus pages for the Supreme Court, through Senior Associate Justice Reynato S. Puno, to rule on the key issue. I recommend both the Resolution of 2003, and the Resolution of June 22, 2006 to any serious student of constitutional law who desires a comprehensive yet concise review of the complex constitutional principles governing relations between Church and State. The two resolutions are characteristic of Puno’s “ponencias” [authored decisions]: well-researched, persuasively argued and thoroughly analytic. It is these subtler points of constitutional theory that one misses when one is preoccupied with “live-ins.” Like any piece of jurisprudence, Escritor goes beyond Soledad Escritor and the interesting meanderings of her life!
Escritor was charged with immorality for living-in with a man who was not her husband and who was, like Escritor, estranged from his spouse. Had that been the end of the story, it would not have called for 200 pages of ratiocination. It divided the Court in 2003; it has done so again this year, with Justice Antonio Carpio writing an eloquent and acutely studied dissent.
Escritor raised as a defense her freedom to live according to her religious beliefs, because she had asked for and obtained the consent of the religious sect to which she and her partner belonged to continue cohabitation. It should be emphasized that she was charged not with adultery, nor were she and her partner charged with concubinage. Rather they were administratively accused of immorality. This triggered the interesting question: How far does the freedom of religion go to justify one’s actions in the face of public policy and morality?
Jefferson’s “wall of separation” became, throughout the history of American constitutional theory, a wall of antipathy, sufficient to cause the removal of a state supreme court chief justice who refused to evict Moses and the Ten Commandments from his court premises! True, the “non-establishment” and “free exercise” clauses in our Constitution echo the amendments to the American Constitution that guarantee these freedoms, but every constitution must be read as a whole.
Reading our Constitution in its entirety -- with its numerous references to religion, its acknowledgement of its role, its concessions to religious beliefs that distinguish it sufficiently from the American Constitution -- Puno arrived at the conclusion, with which most of the Court agreed, that the proper characterization of the relation between the State and religion in the Philippines is benevolent neutrality, meaning that the State will accommodate religion provided such accommodation does not offend law and public policy.
Accommodation can be mandatory when the accommodation is necessary to render effect to the free exercise clause. It is permissive when the State may, but is not required, to accommodate. I take it that such is the permissibility of celebrating Masses in Halls of Justice when such an accommodation does not interfere with the business of the court at a time that the court is not in session.
When will the State bar the practice of religion, or interfere with action pursuant to religious convictions? The Court rules the “compelling state interest” test to be the applicable measure. To apply this test, one goes through three steps: first, one inquires into the “sincerity” of the belief (in contrast to a claim of piety or religiosity merely to escape mandatory regulation); second, one determines what compelling State interest there is, if any, to interfere with the practice of religion; third, one accords sanction to those means that intrude least into the free exercise of religion and that are proportionate to the attainment of a public and legal goal.
Long before Estrada v. Escritor, we have had live-in unions. They came with the dawning of post-conventional times. The Family Code has provisions on the property regime of partners cohabiting without benefit of marriage. It is certainly misleading -- a misrepresentation, in fact -- to say that the Court has given its nod to live-in unions. What it has done is recognize the reaches of religion and courageously draw the line between free exercise and state action for Philippine constitutional law, severing our jurisprudential dependence on American constitutional doctrine.
In Estrada v. Escritor, both in 2003 and in 2006, we address the knotty problem of State-religion relations, and we enunciate a doctrine that acknowledges its American progeny, but does not hesitate to be distinct from it and to propose a response that springs from the Constitution, the history and the culture of a people who cherish democracy but do not in the least hesitate to invoke, with sincerity, the blessings and the guidance of Divine Providence, or Almighty God, or the Lord of History!
Published on Page A13 of the July 5, 2006 issue of the Philippine Daily Inquirer
Fr. Ranhilio Callangan Aquino is dean of the Graduate School of Law of San Beda College.
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