The
concept of separation of church and state
All rights reserved
The
short answer is no. The 1987 Constitution itself provides for
exceptions to Section 6, Article II in Section 28(3) and 29(2),
Article VI, and Section 3(3), Article XIV.
You
are not satisfied with the answer? Well, we could arrive at a more
detailed answer if we examine and differentiate the schools of
thought involved in Church-State separation.
The
first is strict separation
which believes that the Establishment Clause was meant to protect the
state from the church, and the state's hostility towards religion
allows no interaction between the two. According to this Jeffersonian
view, an absolute barrier to formal interdependence of religion and
state needs to be erected. Religious institutions could not receive
aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed
on believers.
The
second is strict neutrality
wherein the state must be neutral in its relations with groups
of religious believers and non-believers. "State power is no
more to be used so as to handicap religions than it is to favor
them." The strict neutrality approach is not
hostile to religion, but it is strict in holding that religion may
not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges
or imposes duties or obligations. Only secular criteria may be the
basis of government action.
However,
there is a problem with the separationist approach, whether in
the form of strict separation or strict neutrality.
Although it "captures the spirit of the American ideal
of church-state separation," in real life, church and state
are not and cannot be totally separate. This is all the more
true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many
points.
The
third is benevolent neutrality
wherein religion is looked upon with benevolence and not hostility,
it allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion
specifically into account not to promote the government’s favored
form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore
is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion.
From
our discussion, it is obvious that the 1987 Constitution adheres to
the principle of benevolent
neutrality
because it accommodates religion.
Religion
and law
Under
the principle of benevolent neutrality, can religious beliefs be used
as a base for law or government policy? Again, yes.
It
must be understood that that the constitutional
protection of religious freedom gave religious equality, not
civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious
dogma.
Notwithstanding
the principle of separation of church and state, if the state
regulates conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the state's secular goals,
the statute is valid despite its indirect burden on religious
observance, unless the state can accomplish its purpose without
imposing such burden.
In
a case the Court ruled that the Government should not be embarrassed
in its activities simply because of incidental results, more or less
religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordination to mere
incidental results not contemplated. This is because not every
governmental activity which involves the expenditure of public funds
and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of
worship and banning the use of public money or property.
Thus,
as a rule, certain religious beliefs may be used as a base for a
general law which aims to advance the state's secular goals, or any
government act or policy that take religion specifically into account
in order to remove a burden on, or facilitate the exercise of, a
person’s or institution’s religion. After all, certain religious
beliefs may also be motivated by secular, moral, and ethical
considerations.
Objectively and to non-believers, the belief in question may have no
religious bearing at all.
Case
in point are laws that define marriage; the rights, obligations, and
duties attached to marriage; when and how to dissolve the marriage;
and penal laws related to the protection of marriage. Another
example is the town fiesta, a socio-religious event which primarily
aims to hold the fiesta and celebrate the town's devotion to a
patron saint, if there is one.
Finally,
and to those who insist that the separation clause forbids religion
from the sphere of law and government policy, can you explain why we
have the Family Code and the Code of Muslim Personal Laws?
Think about it.
Caveat:
Most of the what you have read are lifted directly from jurisprudence
with some edits.
Sources:
1) Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015;
2) Estrada v. Escritor, 455 Phil. 411;
Link: Part Two
Link: Part Two
No comments:
Post a Comment