Friday, November 11, 2005
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Blog Lecture No. 50: Separation of Church and State

Before I start, I like to state, for the record, that this is my 50th blog-lecture. And to think, I have been blogging for less than a year. I have already give lectures on 50 politically, socially and culturally relevant topics as they do become relevant. And I do not foresee any end to this, given the richness of the law and the dynamics of Philippine society, culture and politics.

It just goes to show that 2005 will go down in Philippine history as one of the more significant years. We truly live in interesting times...

So let us begin...

What does the 1987 Constitution provide under the principle of separation of church and state?

Section 6, Article II of the 1987 Constitution provides:

Section 6. The separation of Church and State shall be inviolable.

While Section 5, Article III thereof provides the clarification:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

What is the popular misconception about separation of church and state?

People mistakenly believe that the principle entails each instution minding its own business. Church does not interfere with the affairs of the State while the State does not meddle with matters of religion.

Why is it a misconception?

Because it is not accurate by constitutional standards. It is not complete.

What is the more accurate constitutional principle of such separation?

Bear in mind that the bill of rights define a person, an entity or a groups' powers as against the state. The more accurate concept is that the bill of rights are the guarantees of the such persons entities or groups that the all powerful state, the entity that has power over life, liberty and property, will not touch and just respect. The rights under the constitution are, in a sense, the limits to such power.

With this principle of mind, separation of church and state entails two principles, namely:

1. The non-establishment clause; and
2. The free expression clause.

What is the principle of non-establishment?

It simply prohibits the establishment of any religion by law (or simply put, there should be no state-espoused, official or sanctioned religion). More simply, the goverment cannot set up a church (Board of Education vs. Everson, 330 U.S. 15 [1946]). The government cannot pass laws which aid one religion, aid all religions or prefer one religion over another.

It cannot, openly or secretly participate in the affairs of any religious organization and vice-versa.

For example, the state cannot, by law establish Roman Catholicism as the state official religion. The state, on the contrary, should encourage plurality and voluntarism, respecting the people's right to choose their paths to salvation.

So there is a wall of separation of church and state? But why are religious leaders "interfering" with state affairs?

Yes there is but to be technical or apologetic about it, the church (or other religious groups) are not "directly meddling with state affairs. Indirecty is more accurate because they attempt to guide their flock in their exercise of sovereignty (remember, it resides in the people and all authority emanates from them).

Are there constitutionally created exemptions to this non-establishment principle?

Yes. Section 28(2), Article VI of the 1987 Constitution states:

(3)Charitable institutions, churches and parsonages or covenants appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.
This is an exemption because instead of demanding taxes from all, the State favors all religions by lifting some tax burden from their shoulders.

Also, Section 29 (2) of the same article states:

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

Here, religion is assisted or espoused merely as secondary to governmental functions.

What is the principle of free religious expression?

It the state's guarantee the the people shall be free to exercise their chosen religion.

According to Cantwell vs. Connecticut, 310 U.S. 296 (1940), it has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. On the other hand, it safeguards the free exercise of the chosen form of religion.

Such safeguards include non-discrimination on the basis of religion. No religious test shall be required for the exercise of civil or political rights.

Does that mean, arguing from the extreme, that the government cannot stop me from practicing Satanism?

Yes, but every right has a limit, as every right has a corresponding obligation. You are free to exercise your religion as long as you do not hurt others or violate the law... As long as your religious practice does not require you to sacrifice virgins... (they're meant to be loved, not sacrificed...)

Ok class, ponder on those concepts for a while... I may lecture on this further later on...

6 Objection(s):

At 9:10 AM, Blogger categorically imperative said...

A few years back, when she was still at the height of her career, one of your oogle girls, Joyce Jimenez, was a guest on Boy Abunda's talk show. She was asked, How do you feel about the separation of the church and the state? She flashed 'em pearly whites and answered, I think it's unfair, because not everyone's Catholic naman eh!

 
At 12:21 PM, Blogger Rizalist said...

I think your definition of non-establishment is too narrow. I agree it means that the actual establishment of a full blown STATE RELIGION is forbidden, but it prohibits many things short of a theocracy. Let me explain...

Look at the sentence:
"No law shall be made respecting an establishment of RELIGION, or prohibiting the free exercise THEREOF."
(Bill of Rights, Sec.5)

I read somewhere once that the word RELIGION and the word THEREOF refer to one and exactly the same thing. And that is the key to understanding non-establishment because it clearly prohibits two things: (1) an "establishment of religion" OR (2) prohibiting its free exercise.

Nonestablishment is therefore a principle of absolute neutrality that forbids the STATE from doing anything that either promotes "RELIGION" or curtails ITS free exercise.

A common sense example: Most people would probably agree that if the praying aloud of the Our Father were FORBIDDEN by law in any government office, that would be curtailing the free exercise of the Christian religion. But conversely, if a law were passed REQUIRING everyone to pray aloud the Our Father in government offices, that too would be a prohibited act of the State.

In other words, a good way to TEST hypothetically whether something falls under the rubric of being an "establishmnent or promotion of religion", ask if REQUIRING that same thing would be a suppression of religious freedom.

The 2000 Centennial Prayer of the Courts established by Hilario Davide and written by Art Panganiban FAILS this test. So does the presence in almost all national government offices of CRAVEN IMAGES and IDOLATROUS SCULPTURE. The Sto. Nino in the Office of the Speaker of the House is bigger than him.

One last point: the greatest misconception is that there is ANY kind of prohibition on churches and religious persons from participating in politics. But just look at the rest of Sec. 5:

"The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."

HAH! The CBCP is getting restless...

 
At 4:02 PM, Blogger Rizalist said...

PS. Hope you don't mind my obsessing on that small point. Your essay covers a lot more ground which I just looked at again. There's a lot here worth thinking about. Congrats.

 
At 4:02 PM, Blogger Punzi said...

Dear Dean Jorge,

Actually, I did not want to go into these more detailed matters for they are very complicated to understand. But since you discussed some of them just the same, I will blog about the complications (such as putting a "belen" in public schools, flag-burning, wearing religion-sanctioned costumes in public schools, etc. in some future blog.

regards

 
At 12:42 AM, Blogger mynym said...

Nonestablishment is therefore a principle of absolute neutrality that forbids the STATE from doing anything that either promotes "RELIGION" or curtails ITS free exercise.

No, it was that Congress shall not make such laws. So the same man that wrote about the separation of Church and State also attended church in the capital building and wrote and said:
________
On March 4, 1805, in his Second Inaugural address, President Thomas Jefferson declared:
In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it; but have left them, as the Constitution found them, under the direction and discipline of state and church authorities by the several religious societies.

I shall now enter on the duties to which my fellow-citizens have again called me, and shall proceed in the spirit of those principles which they have approved….

I shall need, therefore, all the indulgence I have heretofore experienced. ..I shall need, too, the favor of that Being in whose hands we are, who led our forefathers, as Israel of old, from their native land and planted them in a country flowing with all the necessities and comforts of life, who has covered our infancy with His Providence and our riper years with His wisdom and power, and to whose goodness I ask you to join with me in supplications that He will so enlighten the minds of your servants, guide their councils and prosper their measures, that whatever they do shall result in your good, and shall secure to you the peace, friendship and approbation of all nations.

President Thomas Jefferson, March 4, 1805, offered A National Prayer for Peace:

Almighty God, Who has given us this good land for our heritage; We humbly beseech Thee that we may always prove ourselves a people mindful of Thy favor and glad to do Thy will. Bless our land with honorable ministry, sound learning, and pure manners.
Save us from violence, discord, and confusion, from pride and arrogance, and from every evil way. Defend our liberties, and fashion into one united people the multitude brought hither out of many kindreds and tongues.

Endow with Thy spirit of wisdom those to whom in Thy Name we entrust the authority of government, that there may be justice and peace at home, and that through obedience to Thy law, we may show forth Thy praise among the nations of the earth.
In time of prosperity fill our hearts with thankfulness, and in the day of trouble, suffer not our trust in Thee to fail; all of which we ask through Jesus Christ our Lord, Amen.

As President, Thomas Jefferson not only signed bills which appropriated financial support for chaplains in Congress and the armed services, but he also signed the Articles of War, April 10, 1806, in which he:

Earnestly recommended to all officers and soldiers, diligently to attend divine services.

On January 23, 1808, Thomas Jefferson wrote to Samuel Miller:

I consider the government of the U.S. as interdicted [ by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. [Amendment].
Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states as far as it can be in any human authority.
______
(America’s God and Country
By William Federer :327-328)

What the existentialists and modern textual degenerates of the American Judiciary have worked for is to change the separation of church and state into a separation of religion and all government, then that into a separation of a philosophic idea like theism and state, finally working into a totalitarian form of the State establishing atheism or agnosticism. . There is a lot of historical evidence that atheism/agnosticism is the guiding philosophy of government that the Left will always work for. If it were actually true that "Congress shall make no law..." was elastic enough to cover all the laws that the states ought to be "allowed" to make under the absolute government of an oligarchic Judiciary, then both the Constitution and the Declaration would have to be declared "unconstitutional" because they both mention God yet are the founding and governing documents of the Republic.

This is how far the American Judiciary has come, unto supporting principles that would make the Constitution "unconstitutional."

Jefferson, on why they would reject all limitation:
"You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem, and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that to whatever hands confided, that with the corruptions of time and party, its members would become despots."
(Letter from Thomas Jefferson to William C. Jarvis (Sept. 28, 1820), in 15 Writings of Thomas Jefferson 276, 277-78 (Andrew A. Lipscomb & Albert E. Bergh eds., 1903)

Some related posts on the topic: Benjamin Franklin

The Separation of Church and State

 
At 8:53 PM, Blogger Rizalist said...

Punzi, there's a big discussion of this over at Ricky Carandang's. I think they could use an expert's opinion like yours...

 

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