Blog Lecture No. 50: Separation of Church and State
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 ). 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...