G.R. No.

L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE COURT OF
APPEALS, respondents.

Montesa, Albon, & Associates for petitioners.

De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:

Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving behind real and
personal properties here in the Philippines worth P300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of letters of
administration docketed as Special Proceedings Case No. C-699 of the then Court of First Instance of Rizal Branch XXXIII,
Caloocan City. In said petition they alleged among others that (a) they are the children of the deceased with Asuncion Gillego; (b)
to their knowledge Sy Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children
to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of the deceased
[Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful
wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors are the legitimate children of the
deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become the
administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding
among others that:

(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with Sy Mat
[CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged illegitimate
offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of the intestate estate of the
deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive portion of which reads:
 IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE
and a new judgment rendered as follows:

(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy
acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried woman with
whom he lived as husband and wife without benefit of marriage for many years:

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural
children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the legality
of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to be valid to the laws of the
Chinese People's Republic of China (sic);

(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy (Exhibit
"G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply to be valid and
accordingly, said property should be excluded from the estate of the deceased Sy Kiat; and

(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of the estate of
the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]

From said decision both parties moved for partial reconsideration, which was however denied by respondent court. They thus
interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita
Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning
paragraphs (3) and (4) of the dispositive portion of the Court of Appeals' decision. The Supreme Court however resolved to deny
the petition and the motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No. 56045. **

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of the decision of the Court of
Appeals. This petition was initially denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the Court in a
resolution dated September 16, 1981 reconsidered the denial and decided to give due course to this petition. Herein petitioners
assign the following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF SY

KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWS OF
THE PEOPLE'S REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SY-GONZALES,

MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT
WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was conclusively proven.
To buttress this argument they rely on the following testimonial and documentary evidence.

First, the testimony of Yao Kee summarized by the trial court as follows:

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that she does
not have a marriage certificate because the practice during that time was for elders to agree upon the
betrothal of their children, and in her case, her elder brother was the one who contracted or entered into
[an] agreement with the parents of her husband; that the agreement was that she and Sy Mat would be
married, the wedding date was set, and invitations were sent out; that the said agreement was complied
with; that she has five children with Sy Kiat, but two of them died; that those who are alive are Sze Sook
 Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is already 38 years old; that
Sze Sook Wah was born on November 7, 1939; that she and her husband, Sy Mat, have been living in
FooKien, China before he went to the Philippines on several occasions; that the practice during the time
of her marriage was a written document [is exchanged] just between the parents of the bride and the
parents of the groom, or any elder for that matter; that in China, the custom is that there is a go- between,
a sort of marriage broker who is known to both parties who would talk to the parents of the bride-to-be;
that if the parents of the bride-to-be agree to have the groom-to-be their son in-law, then they agree on a
date as an engagement day; that on engagement day, the parents of the groom would bring some pieces
of jewelry to the parents of the bride-to-be, and then one month after that, a date would be set for the
wedding, which in her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the
wedding the bridegroom brings with him a couch (sic) where the bride would ride and on that same day,
the parents of the bride would give the dowry for her daughter and then the document would be signed by
the parties but there is no solemnizing officer as is known in the Philippines; that during the wedding day,
the document is signed only by the parents of the bridegroom as well as by the parents of the bride; that
the parties themselves do not sign the document; that the bride would then be placed in a carriage where
she would be brought to the town of the bridegroom and before departure the bride would be covered with
a sort of a veil; that upon reaching the town of the bridegroom, the bridegroom takes away the veil; that
during her wedding to Sy Kiat (according to said Chinese custom), there were many persons present; that
after Sy Kiat opened the door of the carriage, two old ladies helped her go down the carriage and brought
her inside the house of Sy Mat; that during her wedding, Sy Chick, the eldest brother of Sy Kiat, signed
the document with her mother; that as to the whereabouts of that document, she and Sy Mat were
married for 46 years already and the document was left in China and she doubt if that document can still
be found now; that it was left in the possession of Sy Kiat's family; that right now, she does not know the
whereabouts of that document because of the lapse of many years and because they left it in a certain
place and it was already eaten by the termites; that after her wedding with Sy Kiat, they lived immediately
together as husband and wife, and from then on, they lived together; that Sy Kiat went to the Philippines
sometime in March or April in the same year they were married; that she went to the Philippines in 1970,
and then came back to China; that again she went back to the Philippines and lived with Sy Mat as
husband and wife; that she begot her children with Sy Kiat during the several trips by Sy Kiat made back
to China. [CFI decision, pp. 13-15; Rollo, pp. 50-52.]

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the many people who
attended the wedding of his sister with Sy Kiat and that no marriage certificate is issued by the Chinese government, a document
signed by the parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]

Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect that (a) Sy Mat was married
to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission to her that he has a Chinese wife whom he married
according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.]

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the following entries are
found: "Marital status—Married"; "If married give name of spouses—Yao Kee"; "Address-China; "Date of marriage—1931"; and
"Place of marriage—China" [Exhibit "SS-1".]

Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following entries are likewise
found: "Civil status—Married"; and, 'If married, state name and address of spouse—Yao Kee Chingkang, China" [Exhibit "4".]

And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's Republic of China to the effect
that "according to the information available at the Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also
Chinese were married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to
establish the validity of said marriage in accordance with Chinese law or custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally
binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon,
Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.]
The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this
score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless
such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The
same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country
where they were performed and valid there as such, shall also be valid in this country, except bigamous,
Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis supplied.) ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely:
(1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v.
Cheong Seng Gee, 43 Phil. 43, 49 (1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign law, Rule 130
section 45 states that:

SEC. 45. Unwritten law.—The oral testimony of witnesses, skilled therein, is admissible as evidence of
the unwritten law of a foreign country, as are also printed and published books of reports of decisions of
the courts of the foreign country, if proved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

SEC. 25. Proof of public or official record.—An official record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove the existence of a
written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works
v. Muzzal, 61 Phil. 471 (1935).]

In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The
testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they
are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For
failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom,
the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese law on marriage as
judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot take judicial notice
of foreign laws. They must be alleged and proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915);
Fluemer v. Hix, 54 Phil. 610 (1930).]

Moreover a reading of said case would show that the party alleging the foreign marriage presented a witness, one Li Ung Bieng,
to prove that matrimonial letters mutually exchanged by the contracting parties constitute the essential requisite for a marriage to
be considered duly solemnized in China. Based on his testimony, which as found by the Court is uniformly corroborated by
authors on the subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of marriage in
accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the law of China on marriage
in the aforecited case, petitioners however have not shown any proof that the Chinese law or custom obtaining at the time the Sy
Joc Lieng marriage was celebrated in 1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931
or eighty-four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the instant case. They aver
that the judicial pronouncement in the Memoracion case, that the testimony of one of the contracting parties is competent
evidence to show the fact of marriage, holds true in this case.

The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign marriage and the issue
posed was whether or not the oral testimony of a spouse is competent evidence to prove the fact of marriage in a complaint for
adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the same as ours *** [Wong Woo
Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the
Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even
if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give
number of children—Four"; and, "Name—All living in China" [Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only three of
whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977, pp. 9-
11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil Registrar of
Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated
that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters with his Chinese wife,
two of whom—Sook Wah and Sze Kai Cho—she knows, and one adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws of China, they cannot be
accorded the status of legitimate children but only that of acknowledged natural children. Petitioners are natural children, it
appearing that at the time of their conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another
[See Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze Sook
Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil
Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with Asuncion Gillego, a Filipina
with whom he lived for twenty-five (25) years without the benefit of marriage. They have in their favor their father's
acknowledgment, evidenced by a compromise agreement entered into by and between their parents and approved by the Court
of First Instance on February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego but
likewise made provisions for their support and future inheritance, thus:

xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife and that out of such
relationship, which they have likewise decided to definitely and finally terminate effective immediately,
they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties mutually agree
and covenant that—

(a) The stocks and merchandize and the furniture and equipments ..., shall be divided into
two equal shares between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall transfer the same to
their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy Kiat. However, it shall be
his obligation to give to the aforenamed children an amount of One Thousand Pesos (
Pl,000.00 ) monthly out of the rental of the two doors of the same building now occupied
by Everett Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the

common-law husband-and-wife relationship between the parties, of the real estates and properties
registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually agree and covenant
that the said real estates and properties shall be transferred in equal shares to their children, namely,
Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her
lifetime ... [Exhibit "D".] (Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may be voluntarily acknowledged
[See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the paternity and filiation of the
parties should have been ventilated in the Juvenile and Domestic Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act Revising Rep. Act No. 3278,
otherwise known as the Charter of the City of Caloocan', with regard to the Juvenile and Domestic Relations Court:
 SEC. 91-A. Creation and Jurisdiction of the Court.—

xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original
jurisdiction to hear and decide the following cases:

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and
acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and actions for
support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one to three of the civil
code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira [G.R.
No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, the Juvenile and
Domestic Relations Courts were abolished. Their functions and jurisdiction are now vested with the Regional Trial Courts [See
Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is
no longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last paragraph that:

xxx xxx xxx

If any question involving any of the above matters should arise as an incident in any case pending in the
ordinary court, said incident shall be determined in the main case.

xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:

xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving paternity and
acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See Baluyot vs. Ines
Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an administration proceeding
is pending or existing and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

xxx xxx xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by the Court of First Instance
and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63]
but more importantly to prevent multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent
court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes

* The petition for review in G.R. No. 56045 was denied for lack of merit on March 9, 1981, Counsel for the
petitioners then filed a Motion for Consolidation and for Extension of Time to File Motion for
Reconsideration which was granted on July 8, 1981. On February 17, 1982, however, petitioners' motion
for reconsideration of the resolution of March 9, 1981 was denied.

** Other than the exceptions contained in this article, this provision of law is derived from Section 19, Act
No. 3613 and Section IV, General Order No. 68.

*** The presumption that, in the absence of proof, the foreign law is the same as the law of the forum, is
known as processual presumption which has been applied by this Court in the cases of Lim v. The Insular
Collector of Customs, 36 Phil, 472 (1917); International Harvester Co. in Russia v. Hamburg-American
Line, 42 Phil. 845 (1918); Miciano v. Brimo, 60 Phil, 867 (1924); and Rayray v. Chae Kyung Lee, G.R. No.
L-18176, October 26, 1966,18 SCRA 450.

**** Rep. Act 4834 created the Juvenile and Domestic Relations Court of Iloilo. Section 1 of said Act is the
exact copy of section 19-A of Rep. Act 5502.

The Lawphil Project - Arellano Law Foundation

FIRST DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 154380

Petitioner,
 Present:
Davide, Jr., C.J.,
- versus - (Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
CIPRIANO ORBECIDO III,
Respondent. Promulgated:

October 5, 2005
x--------------------------------------------------x

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him
or her to remarry, can the Filipino spouse likewise remarry under Philippine law?

Before us is a case of first impression that behooves the Court to make a

definite ruling on this apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision[1] dated

May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch
23 and its Resolution[2] dated July 4, 2002 denying the motion for reconsideration.
The court a quo had declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:
 WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the
Family Code and by reason of the divorce decree obtained against him by his
American wife, the petitioner is given the capacity to remarry under the Philippine
Law.

IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the

United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage
was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady
Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son
Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized
as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a
divorce decree and then married a certain Innocent Stanley. She, Stanley and her
child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel,
California.

Cipriano thereafter filed with the trial court a petition for authority to remarry
invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed.
Finding merit in the petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG), sought reconsideration
but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26
OF THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not

applicable to the instant case because it only applies to a valid mixed marriage; that
is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy,
according to the OSG, is to file a petition for annulment or for legal

separation.[5] Furthermore, the OSG argues there is no law that governs respondents
situation. The OSG posits that this is a matter of legislation and not of judicial
determination.[6]

For his part, respondent admits that Article 26 is not directly applicable to his case
but insists that when his naturalized alien wife obtained a divorce decree which
capacitated her to remarry, he is likewise capacitated by operation of law pursuant
to Section 12, Article II of the Constitution.[7]

At the outset, we note that the petition for authority to remarry filed before the trial
court actually constituted a petition for declaratory relief. In this connection, Section

1, Rule 63 of the Rules of Court provides:

RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will, contract
or other written instrument, or whose rights are affected by a statute, executive
order or regulation, ordinance, or other governmental regulation may, before breach
or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are

adverse; (3) that the party seeking the relief has a legal interest in the controversy;
and (4) that the issue is ripe for judicial determination.[8]

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage

between two Filipino citizens where one later acquired alien citizenship, obtained a
divorce decree, and remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists on a declaration of
his capacity to remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial determination inasmuch as

when respondent remarries, litigation ensues and puts into question the validity of
his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family

Code apply to the case of respondent? Necessarily, we must dwell on how this
provision had come about in the first place, and what was the intent of the legislators
in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive
Order No. 209, otherwise known as the Family Code, which took effect on August
3, 1988. Article 26 thereof states:
 All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35, 37,
and 38.

On July 17, 1987, shortly after the signing of the original Family Code,
Executive Order No. 227 was likewise signed into law, amending Articles 26, 36,

and 39 of the Family Code. A second paragraph was added to Article 26. As so
amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation
presented by the case at hand. It seems to apply only to cases where at the time of
the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was solemnized, the parties were
two Filipino citizens, but later on, the wife was naturalized as an American citizen
and subsequently obtained a divorce granting her capacity to remarry, and indeed
she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings [9] on the Family Code, the
Catholic Bishops Conference of the Philippines (CBCP) registered the following
objections to Paragraph 2 of Article 26:
 1. The rule is discriminatory. It discriminates against those whose spouses
are Filipinos who divorce them abroad. These spouses who are divorced
will not be able to re-marry, while the spouses of foreigners who validly
divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for
Filipino citizens. For those whose foreign spouses validly divorce them
abroad will also be considered to be validly divorced here and can re-marry.
We propose that this be deleted and made into law only after more
widespread consultation. (Emphasis supplied.)

Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the

intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member

of the Civil Code Revision Committee, is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case

of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a

Filipino citizen and a foreigner. The Court held therein that a divorce decree validly
obtained by the alien spouse is valid in the Philippines, and consequently, the
Filipino spouse is capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration
of the marriage, the parties were Filipino citizens, but later on, one of them obtains
a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got
married. The wife became a naturalized American citizen in 1954 and obtained a
divorce in the same year. The Court therein hinted, by way of obiter dictum, that a

Filipino divorced by his naturalized foreign spouse is no longer married under

Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of

reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases

involving parties who, at the time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry
as if the other party were a foreigner at the time of the solemnization of the marriage.
To rule otherwise would be to sanction absurdity and injustice. Where the

interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far as necessary the letter

of the law. A statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or intent. [12]

If we are to give meaning to the legislative intent to avoid the absurd situation

where the Filipino spouse remains married to the alien spouse who, after obtaining
a divorce is no longer married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of Article 26.
 In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino
citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or

her to remarry.

The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen,

there was still a valid marriage that has been celebrated between her and Cipriano.
As fate would have it, the naturalized alien wife subsequently obtained a valid

divorce capacitating her to remarry. Clearly, the twin requisites for the application
of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced
Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSGs theory that the proper remedy of the
Filipino spouse is to file either a petition for annulment or a petition for legal
separation. Annulment would be a long and tedious process, and in this particular

case, not even feasible, considering that the marriage of the parties appears to have
all the badges of validity. On the other hand, legal separation would not be a
sufficient remedy for it would not sever the marriage tie; hence, the legally separated
Filipino spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted
by respondent concerning the divorce decree and the naturalization of respondents

wife. It is settled rule that one who alleges a fact has the burden of proving it and
mere allegation is not evidence.[13]

Accordingly, for his plea to prosper, respondent herein must prove his allegation that

his wife was naturalized as an American citizen. Likewise, before a foreign divorce
decree can be recognized by our own courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing
it.[14] Such foreign law must also be proved as our courts cannot take judicial notice
of foreign laws. Like any other fact, such laws must be alleged and
proved.[15] Furthermore, respondent must also show that the divorce decree allows

his former wife to remarry as specifically required in Article 26. Otherwise, there
would be no evidence sufficient to declare that he is capacitated to enter into another
marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the

Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to
allow a Filipino citizen, who has been divorced by a spouse who had acquired

foreign citizenship and remarried, also to remarry. However, considering that in the
present petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondents bare allegations that his wife, who was

naturalized as an American citizen, had obtained a divorce decree and had remarried
an American, that respondent is now capacitated to remarry. Such declaration could
only be made properly upon respondents submission of the aforecited evidence in
his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED.

The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET

ASIDE.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice
Chairman

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA
Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

[1]
Rollo, pp. 20-22.
[2]
Id. at 27-29.
[3]
Id. at 21-22.
[4]
Id. at 105.
[5]
Id. at 106-110.
[6]
Id. at 110.
[7]
Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government.
[8]
Office of the Ombudsman v. Ibay, G.R. No. 137538, 3 September 2001, 364 SCRA 281, 286, citing Galarosa v.
Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA 729, 737.
[9]
Held on January 27 and 28, 1988 and February 3, 1988.
[10]
No. L-68470, 8 October 1985, 139 SCRA 139.
[11]
G.R. No. 124862, 22 December 1998, 300 SCRA 406.
[12]
Lopez & Sons, Inc. v. Court of Tax Appeals, No. L-9274, 1 February 1957, 100 Phil. 850, 855.
[13]
Cortes v. Court of Appeals, G.R. No. 121772, 13 January 2003, 395 SCRA 33, 38.
[14]
Garcia v. Recio, G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447.
[15]
Id. at 451.
G.R. No. L-26462 June 9, 1969

TERESITA C. YAPTINCHAY, petitioner,

vs.
HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY,
in her own behalf and in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y.
Yaptinchay and JESUS MONZON, MARY YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY,
ASUNCION YAPTINCHAY, JOSEFINA Y. YAPTINCHAY, ROSA Y. MONZON, ISABEL Y. VALERIANO, REMEDIOS Y.
YAPTINCHAY, FELICIDAD Y. ARGUELLES, MARY DOE and JOHN DOE,respondents.

V. E. del Rosario and Associates for petitioner.

Sycip, Salazar, Luna, Manalo and Feliciano for respondents.

SANCHEZ, J.:

The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory powers
should stake down as having been issued in excess of jurisdiction or with grave abuse of discretion, the respondent judge's order
of June 15, 1966 in Civil Case 8873 (Court of First Instance of Rizal) directing petitioner to deliver to Special Administratrix
Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay the North Forbes Park property hereinafter described,
and to refrain from disturbing or interfering in any manner whatsoever with the latter's possession thereof, such order having
been amended by said respondent judge's subsequent order of June, 28, 1966 in turn enjoining defendants in said case (private
respondents herein) and/or their duly authorized agents or representatives from selling, disposing, or otherwise encumbering
said property in any manner whatsoever pending the termination of said case. We granted the writ of preliminary mandatory
injunction prayed for and directed respondents to return the possession of the North Forbes Park property to petitioner upon a
P50,000-bond.

The controlling facts are the following:

On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch, her
appointment first as Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who died in
Hongkong on July 7, 1965. This is known in the record as Special Proceedings 1944-P. Petitioner there alleged that the
deceased Isidro Y. Yaptinchay had lived with her continuously, openly and publicly as husband and wife for nineteen (19) years:
from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel Avenue, Pasay City; that the
deceased who died without a will left an estate consisting of personal and real properties situated in the Philippines, Hongkong
and other places with an estimated value of about P500,000; that to petitioner's knowledge and information, the deceased left
three daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion Yaptinchay, all of age; that on July 7, 8 and 11, 1965,
certain parties carted away from the residences aforesaid personal properties belonging to the deceased together with others
exclusively owned by petitioner. It was averred that in these circumstances the appointment of a special administrator to take
custody and care of the interests of the deceased pending appointment of a regular administrator became an urgent necessity.

Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C. Yaptinchay
special administratrix of the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond.

To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate wife,
and Ernesto Y. Yaptinchay and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said Teresita C.
Yaptinchay, not being an heir of the decedent, had no right to institute the proceeding for the settlement of the latter's estate,
much less to procure appointment as administratrix thereof; and that having admittedly cohabited with the deceased for a number
of years said petitioner was not qualified to serve as administratrix for want of integrity. At the same time, oppositors counter-
petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the deceased, as special administratrix and of Josefina Y.
Yaptinchay, the alleged surviving spouse, as regular administratrix.

To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965 appointing
petitioner Teresita C. Yaptinchay special administratrix.

On July 30, 1965, after the parties were heard, the probate court granted counter-petitioners' prayer and named Virginia Y.
Yaptinchay special administratrix upon a P50,000-bond. 1awphil.nêt

On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the deceased
Isidro Y. Yaptinchay. Included amongst these was "[a] bungalow residential house with swimming pool, situated at Park corner
Talisay Road, North Forbes Park, Makati, Rizal" adverted to at the start of this opinion.

It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita C.
Yaptinchay made her second move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig Branch) of
the Court of First Instance of Rizal an action for replevin and for liquidation of the partnership supposedly formed during the
period of her cohabitation with Isidro Y. Yaptinchay and for damages. This case was docketed as Civil Case 8873. 1 Pending
hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed for, respondent judge Guillermo
E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein (private respondents here) and their
agents from disposing any of the properties listed in the complaint and from interfering with plaintiff's (herein petitioner's) rights to,
and possession over, amongst others, "the house now standing at North Forbes Park, Makati, Rizal."

On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of replevin
and preliminary injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of the estate of the
deceased Isidro Y. Yaptinchay was already vested in the Court of First Instance of Rizal, Pasay City Branch in the special
proceedings heretofore mentioned (Special Proceedings No. 1944-P); (2) that the present liquidation case was filed to oust said
probate court of jurisdiction over the properties enumerated in this, the second case (Civil Case 8873); and (3) that plaintiff was
not entitled to the remedy of injunction prayed for, her alleged right sought to be protected thereby being doubtful and still in
dispute.

Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to direct
plaintiff (petitioner here) and all others in her behalf to cease and desist from disturbing in any manner whatsoever defendant
Virginia Y. Yaptinchay's possession amongst others of the North Forbes Park house and to order the removal from the premises
of said North Forbes Park house of the guards, agents and employees installed therein by plaintiff; to enjoin plaintiff and her
agents from entering the aforesaid house and any other real property registered in the name of Isidro Y. Yaptinchay and from
interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and powers of administration over the
assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at the time of his death.

Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which
reads: "From the pleadings as well as the evidence already submitted and representations made to the court
during the arguments, it appears that one of the properties in dispute is the property located at the corner of Park
Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death of the deceased Isidro
Y. Yaptinchay was still under construction and it also appears that after his death said property was among the
properties of the deceased placed under the administration of the special administratrix, the defendant Virginia Y.
Yaptinchay. Information has been given that in the evening of August 14, 1965, the plaintiff was able to
dispossess the special administratrix from the premises in question and that since then she had been in custody
of said house.

While the Court is still considering the merits of the application and counter-application for provisional relief, the
Court believes that for the protection of the properties and considering the Forbes Park property is really under
 the responsibility of defendant Virginia Y. Yaptinchay, by virtue of her being appointed Special Administratrix of
the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the issuance of a writ of preliminary
injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by this Court is
lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner whatsoever the
defendant Virginia Y. Yaptinchay in the possession of said property.

WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is
requiring the plaintiff, her representatives and agents or other persons acting in her behalf to deliver the
possession of the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati,
Rizal to the Special Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing interfering in any manner
whatsoever defendant's possession thereof.

Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites:

Considering that the present case treats principally with the liquidation of an alleged partnership between the
plaintiff and the deceased Isidro Yaptinchay and considering further that said house in North Forbes Park is
included among the properties in dispute, the Court hereby clarifies its Order of June 15, 1966 by enjoining the
defendants and/or their duly authorized agents or representatives from selling, disposing or otherwise
encumbering said property in any manner whatsoever pending the termination of this case.

Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966, which
recites that:

Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said
properties which were formerly held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her
appointment and under her authority, as Special Administratrix of the estate of the deceased Isidro Yaptinchay,
the plaintiff's Motion for Reconsideration is hereby denied.2

The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court.

1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro
Yaptinchay, grave abuse of discretion attended respondent judge's order issuing an injunctive writ transferring possession of said
property to respondent Virginia Y. Yaptinchay.

A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of taking
property out of possession and/or control of a party and placing it in that of another whose title thereto has not been clearly
established. 3 With this as guidepost, petitioner would have been correct if she were lawfully in possession of the house in
controversy when Civil Case 8873 (where the injunctive writ was issued) was commenced in the Pasig court, and if respondent
special administratrix, to whom the possession thereof was transferred, were without right thereto. But the situation here is not as
petitioner pictures it to be. It is beyond debate that with the institution on July 13, 1965 of Special Proceedings 1944-P, properties
belonging not only to the deceased Isidro Y. Yaptinchay but also to the conjugal partnership of said deceased and his legitimate
wife, Josefina Y. Yaptinchay, 4 were brought under the jurisdiction of the probate court, properly to be placed under
administration.5 One such property is the lot at North Forbes Park. 6

With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court, petitioner avers
"that the construction of said North Forbes Park property was undertaken jointly by petitioner and the deceased, petitioner
even contributing her own exclusive funds therefor." 7 This is a reproduction of an allegation in petitioner's June 27, 1966
alternative motion for reconsideration or for clarification/amendment of the herein controverted order of June 15, 1966 in Civil
Case 8873. 8 And again, in the affidavit of Teresita C. Yaptinchay dated August 3, 1965, she spoke of the acquisition of
properties, real and personal, in her own words, "through our joint efforts and capital, among which properties are those situated"
in "North Forbes Park." 9 All of which contradict her averment in the amended complaint dated October 25, 1965 — also verified
— in said Case 8873 to the effect that she "acquired through her own personal funds and efforts real properties such as ... the
house now standing at North Forbes Park, Makati, Rizal." 10

But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house. They
maintain that the construction of that house was undertaken by the deceased Isidro Y. Yaptinchay without her (petitioner's)
intervention and the deceased paid with his own personal funds all expenses incurred in connection with the construction
thereof. 11

It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y. Yaptinchay the
Forbes Park house "was among the properties of the deceased placed under the administration of" respondent Virginia Y.
Yaptinchay, that respondent judge issued the injunction order of June 15, 1966 herein complained of. Worth repeating at this
point is that respondent judge, in his order of August 8, 1966, declared that defendants (private respondents herein), "principally
Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of the North Forbes Park house — "by virtue of her
appointment and under her authority, as Special Administratrix."

On this score, petitioner herein is not entitled to the injunction she prayed for below.

2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in the
exercise of which appellate courts will not interfere except in a clear case of abuse. 12

A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the disputed
order of June 15, 1966 with the vice of grave abuse of discretion. It is quite true that, in support of the allegation that the house in
North Forbes Park was her exclusive property, petitioner presented proof in the form of loans that she had contracted during the
period when said house was under construction. But evidence is wanting which would correlate such loans to the construction
work. On the contrary, there is much to the documentary proof presented by petitioner which would tend to indicate that the loans
she obtained from the Republic Bank were for purposes other than the construction of the North Forbes Park home. And this, we
gather from pages 17 to 18 of petitioner's memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A
thereof, which states in its paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account"
and that the proceeds thereof "were also used by affiant both for her business and for the construction, completion and furnishing
of the said house at North Forbes Park", and which cites her seven promissory notes in favor of Republic Bank, Appendices 1 to
7 of said affidavit. Not one of the promissory notes mentioned reveals use of the proceeds for the construction of the North
Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000 which says that the purpose of the
loan for "Fishpond development"; Appendix 3 for P100,000 for the same purpose; Appendix 5 for P50,000, "To augment working
capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For Agricultural Development". In plain
terms, the fact alone of petitioner's indebtedness to the Republic Bank does not establish that said house was built with her own
funds.

It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive property
may not be permitted to override the prima facie presumption that house, having been constructed on the lot of Isidro Y.
Yaptinchay (or of the conjugal partnership) at his instance, and during the existence of his marriage with respondent Josefina Y.
Yaptinchay, is part of the estate that should be under the control of the special administratrix.

3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be decisive. Said
Article 144 says that: "When man and a woman live together as husband and wife, but they are not married, or their marriage is
void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership." .

But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by
conditions, the existence of which must first be shown before rights provided thereunder may be deemed to accrue. 13 One such
condition is that there must be a clear showing that the petitioner had, during cohabitation, really contributed to the acquisition of
the property involved. Until such right to co-ownership is duly established, petitioner's interests in the property in controversy
cannot be considered the "present right" or title that would make available the protection or aid afforded by a writ of
injunction. 14 For, the existence of a clear positive right especially calling for judicial protection is wanting. Injunction indeed, is not
to protect contingent or future rights; 15 nor is it a remedy to enforce an abstract right. 16

At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North Forbes
Park property be in the hands of the bonded administratrix in the estate proceedings. For then, her acts would be subject to the
control of the probate court.

Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the writ of
preliminary mandatory injunction 17 issued by this Court is hereby dissolved and set aside.

Costs against petitioner. So ordered.

Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistrano, JJ., concur.

Makalintal, Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.

Footnotes

Entitled "Teresita C. Yaptinchay, Plaintiff, versus Virginia Y. Yaptinchay, in her own behalf and in her capacity as
1

Special Administratrix in the Inestate Estate of the deceased Isidro Y. Yaptinchay; and Jesus Monzon, Mary
Yaptinchay Eligir, Antonio Yaptinchay, Ernesto Yaptinchay, Asuncion Yaptinchay, Josefina Y. Yaptinchay, Rosa
Y. Monson, Isabel Y. Valeriano, Remedios Y. Yaptinchay, Felicidad Y. Arguelles, Mary Doe and John Doe,
Defendants." This complaint was amended on October 25, 1965 to include a claim over some other properties.

2 Emphasis supplied.

3Devesa vs Arbes, 13 Phil. 273, 278; Evangelista vs. Pedreños, 27 Phil. 648, 650-651; Asombra vs. Dorado, 36
Phil. 883, 885-886; Kabankalan Sugar Co. vs. Rubin, 54 Phil. 645, 654; Rodulfa vs. Alfonso, 76 Phil. 225, 231;
Calo vs. Roldan, 76 Phil. 445, 452; Iman Sahim vs. Montejo (June 29, 1963), 8 SCRA 333, 335; Emilia vs. Bado
(April 25, 1968), 23 SCRA 183, 188-190.

4 See Certificado de Matrimonio dated September 6, 1920; Annex 1 of the Answer herein filed by respondents.

5Picardal vs. Lladas (December 29, 1967), 21 SCRA 1483, 1491, citing Roxas vs. Pecson, 82 Phil. 407 and
Fernandez vs. Maravilla, L-18799, March 31, 1964.

6 In a pleading filed in Special Proceedings 1944-P, petitioner herself alleged that this Forbes Park lot was
acquired by her and the deceased during the period of their cohabitation (Rollo, p. 155), although she also states
that title thereto is in the name of one Jose (or Erlinda) Oledan (Rollo, p. 15).

7 Emphasis supplied.

8 See Rollo, pp. 16, 79.

9 Rollo, p. 160; emphasis supplied.

10 See Rollo, pp. 26, 31.

 See Verified Opposition, Motion to Dismiss, and Counter Petition for Issuance of Preliminary Injunction dated
11

August 25, 1965 filed by defendants in Civil Case 8873. Rollo, pp. 38-67.

12 Rodulfa vs. Alfonso, supra, at p. 232; Gregorio vs. Mencias (September 29, 1962), 6 SCRA 114, 119.

13 See Lesaca vs. Lesaca, 91 Phil. 135, 140; Aznar vs. Garcia, 102 Phil. 1055, 1068.

Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc. (July 26, 1966), 17 SCRA 731, 736-737; Angela
14

Estate, Inc. vs. CFI of Negros Occidental (July 31, 1968), 24 SCRA 500, 509.

15 Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc., supra, at p. 736.

16 Id. at p. 737; North Negros Sugar Co. vs. Hidalgo, 63 Phil. 664, 671.

17 Rollo, pp. 176-177.

The Lawphil Project - Arellano Law Foundation

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY
SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private
Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ,
SANTOS and NARCISA VARGAS-BENTULAN, respondents.

G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA
VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS,
LUDIVINA VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner.

Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:

On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or injunction (docketed as G.R. No. 85140)
seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from
enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution
issued on 11 October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order.

The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters, herein
private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpusbefore the RTC of Misamis
Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and
confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was
allegedly deprived of her liberty without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25
years of age, single, and living with petitioner Tomas Eugenio.

The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned
unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent sheriff,
reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner, he had already
obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at the palace quadrangle of
the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he (petitioner) is the Supreme
President and Founder.

Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August 1988. As her
common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an explanation filed
before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court, directing
delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy.

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein, claiming lack
of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of
Court.1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all
cases of illegal confinement or detention of a live person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their
petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of the habeas
corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana
was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases
contended that, as the next of kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An
exchange of pleadings followed. The motion to dismiss was finally submitted for resolution on 21 October 1988.

In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was placed in
a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent
court, and examined by a duly authorized government pathologist. 4

Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that:

It should be noted from the original petition, to the first amended petition, up to the second amended
petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then this
Court is being prayed to declare the petitioners as the persons entitled to the custody, interment and/or
burial of the body of said deceased. The Court, considering the circumstance that Vitaliana Vargas was
already dead on August 28, 1988 but only revealed to the Court on September 29, 1988 by respondent's
counsel, did not lose jurisdiction over the nature and subject matter of this case because it may entertain
this case thru the allegations in the body of the petition on the determination as to who is entitled to the
custody of the dead body of the late Vitaliana Vargas as well as the burial or interment thereof, for the
reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows:
 Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;

xxx xxx xxx

(5) In all actions involving the contract of marriage and marital relations;

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions:

xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The authority
to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this Court because
of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this case, which are
enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129.

Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17 January
1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action for
custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the Court first
dismissing the original petition for habeas corpus.

Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of Rule
135 of the Rules of Court8 Articles 305 and 308 in relation to Article 294 of the Civil Code and Section 1104 of the Revised
Administrative Code, 9 the decision stated:

. . . . By a mere reading of the petition the court observed that the allegations in the original petition as
well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty and if
she were dead then relief was prayed for the custody and burial of said dead person. The amendments to
the petition were but elaborations but the ultimate facts remained the same, hence, this court strongly
finds that this court has ample jurisdiction to entertain and sit on this case as an action for custody and
burial of the dead body because the body of the petition controls and is binding and since this case was
raffled to this court to the exclusion of all other courts, it is the primary duty of this court to decide and
dispose of this case. . . . . 10

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body, (for
purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the award. Since
there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who was
merely a common law spouse, the latter being himself legally married to another woman. 11

On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary injunction was
filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically Identical to those raised in the earlier
petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the
issuance of an injunction to maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989
stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body of
Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without further pleadings.

Between the two (2) consolidated petitions, the following issues are raised:
 1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of the
dead body of a 25 year old female, single, whose nearest surviving claimants are full blood brothers and
sisters and a common law husband.

2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for
custody/possession/authority to bury the deceased/recovery of the dead.

3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family Code)
which states:

Art. 294. The claim for support, when proper and two or more persons are obliged to give
it, shall be made in the following order:

(1) From the spouse;

xxx xxx xxx

Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil cases.
Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance (now
Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or petition; but
the allegations therein determine the nature of the action, and even without the prayer for a specific remedy, proper relief may
nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. 13

When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or alive.
While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfimetory operation on the filing of the
petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition
is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may refuse to grant the writ if the
petition is insufficient in form and substance, the writ should issue if the petition complies with the legal requirements and its
averments make a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very
critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make full inquiry
into the cause of commitment or detention will enable him to correct any errors or defects in the petition. 15

In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother to obtain
custody of a minor sister, stating:

All these circumstances notwithstanding, we believe that the case should not have been dismissed. The
court below should not have overlooked that by dismissing the petition, it was virtually sanctioning the
continuance of an adulterous and scandalous relation between the minor and her married employer,
respondent Benildo Nunez against all principles of law and morality. It is no excuse that the minor has
expressed preference for remaining with said respondent, because the minor may not chose to continue
an illicit relation that morals and law repudiate.

xxx xxx xxx

The minor's welfare being the paramount consideration, the court below should not allow the technicality,
that Teofilo Macazo was not originally made a party, to stand in the way of its giving the child full
protection. Even in a habeas corpus proceeding the court had power to award temporary custody to the
petitioner herein, or some other suitable person, after summoning and hearing all parties concerned.
What matters is that the immoral situation disclosed by the records be not allowed to continue. 17
After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings, amendment of the
petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are generally
favored and should be liberally allowed in furtherance of justice in order that every case may so far as possible be determined on
its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are
circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify a refusal of
permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became moot and academic
due to the death of the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo had to
resolve.

Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being
preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's body.
Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man
and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as
husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally
mauled in common law jurisdictions but not in the Philippines. 19

While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and that they
produce a community of properties and interests which is governed by law, 20 authority exists in case law to the effect that such
form of co-ownership requires that the man and woman living together must not in any way be incapacitated to contract
marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a legal impediment which disqualified
him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of
the Civil Code (Support of Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted
however that with respect to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation for purposes
of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or caused mutually by spouses.
The Penal Code article, it is said, makes no distinction between a couple whose cohabitation is sanctioned by a sacrament or
legal tie and another who are husband and wife de facto.23 But this view cannot even apply to the facts of the case at bar. We
hold that the provisions of the Civil Code, unless expressly providing to the contrary as in Article 144, when referring to a
"spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact,
he was not legally capacitated to marry her in her lifetime.

Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the Vargases). Section 1103
of the Revised Administrative Code provides:

Sec. 1103. Persons charged with duty of burial. — The immediate duty of burying the body of a deceased
person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons
hereinbelow specified:

xxx xxx xxx

(b) If the deceased was an unmarried man or woman, or a child, and left any kin, the duty
of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within
the Philippines and in possession of sufficient means to defray the necessary expenses.

WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs.

SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea and
Regalado, JJ., concur.

Gancayco and Grino-Aquino, JJ., are on leave.

Footnotes

* Hon. Alejandro Velez, presiding.

1 Rule 16 (Motion to Dismiss):

Sec. 1. Grounds. — Within the time for pleading a motion to dismiss the action may be made on any of
the following grounds:

(a) . . .

(b) That the court has no jurisdiction over the nature of the action or suit;

Rule 72 (Subject Matter and Applicability of General Rules)

xxx xxx xxx

Sec. 2. Applicability of rules of civil actions. — In the absence of special provisions, the rules provided for
in ordinary actions shall be, as far as practicable, applicable in special proceedings.

2 3 and 11 October 1988 orders, Record of Regional Trial Court Proceedings, pp. 74, 75 & 102.

3 Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order established for support, under article 294. In case of descendants of the same
degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall
have a better right.

Art. 308. No human remains shall be retained, interred disposed of or exhumed without the consent of the
persons mentioned in Articles 294 and 305.

4 Record of RTC Proceedings, pp. 296-297.

5 Ibid., p. 338.

6 Record of RTC Proceedings, p. 577.

7 Supra.

8 Sec. 5 — Inherent power of courts; Sec. 6 — means to carry jurisdiction into effect.

9 Sec. 1104. Right of custody to body — Any person charged by law with the duty of burying the body of a
deceased person is entitled to the custody of such body for the purpose of burying it, except when an
inquest is required by law for the purpose of determining the cause of death; and, in case of death due to
 or accompanied by a dangerous communicable disease, such body shall until buried remain in the
custody of the local board of health or local health officer, or if there be no such, then in the custody of the
municipal council.

10 G.R. No. 86470, Rollo at 34.

11 Annexes 7 & 8, Petition, G.R. No. 85140, Rollo at 85 and 86.

12 Resolution of 26 January 1989, G.R. No. 85140, Rollo at 114.

13 Ras v. Sua, G.R. No. L-23302, September 25, 1968, 25 SCRA 158-159; Nactor v. IAC, G.R. No.
74122, March 15, 1988, 158 SCRA 635.

14 39 Am. Jur., 2d, Habeas corpus §129.

15 Ibid., §130.

16 G.R. No. L-12772, 24 January 1959, 105 Phil. 55.

17 Ibid.

18 PNB vs. CA, G.R. No. L-45770, 30 March 1988, 159 SCRA 933.

19 Fiel vs. Banawa, No. 56284-R, March 26, 1979, 76 OG 619.

20 Article 144 of the Civil Code provides:

When a man and a woman live together as husband and wife, but they are not married, or their marriage
is void from the beginning, the property acquired by either or both of them through their work or industry
or their wages and salaries shall be governed by the rules on co-ownership.

21 Aznar, et al. vs. Garcia, et al., G.R. Nos. L-11483-84, 14 February 1958, 102 Phil. 1055.

22 G.R. Nos. 61700-03, September 24, 1987, 153 SCRA 728.

23 People vs. Constantino, No. 01897-CR, September 6, 1963, 60 O.G. 3603.

The Lawphil Project - Arellano Law Foundation

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.
ESCRITOR, respondent.

DECISION
PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man
stands accountable to an authority higher than the state. To be held on balance are the
states interest and the respondents religious freedom. In this highly sensitive area of law,
the task of balancing between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only temporal. The task
is not made easier by the American origin of our religion clauses and the wealth of U.S.
jurisprudence on these clauses for in the United States, there is probably no more
intensely controverted area of constitutional interpretation than the religion clauses.[1] The
U.S. Supreme Court itself has acknowledged that in this constitutional area, there is
considerable internal inconsistency in the opinions of the Court.[2] As stated by a professor
of law, (i)t is by now notorious that legal doctrines and judicial decisions in the area of
religious freedom are in serious disarray. In perhaps no other area of constitutional law
have confusion and inconsistency achieved such undisputed sovereignty. [3] Nevertheless,
this thicket is the only path to take to conquer the mountain of a legal problem the case
at bar presents. Both the penetrating and panoramic view this climb would provide will
largely chart the course of religious freedom in Philippine jurisdiction. That the religious
freedom question arose in an administrative case involving only one person does not alter
the paramount importance of the question for the constitution commands the positive
protection by government of religious freedom -not only for a minority, however small- not
only for a majority, however large- but for each of us.[4]

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of
religious freedom. It is necessary therefore to lay down the facts in detail, careful not to
omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote
to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las
Pias City, requesting for an investigation of rumors that respondent Soledad Escritor,
court interpreter in said court, is living with a man not her husband. They allegedly have
a child of eighteen to twenty years old. Estrada is not personally related either to Escritor
or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless,
he filed the charge against Escritor as he believes that she is committing an immoral act
that tarnishes the image of the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her act. [5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to
the veracity of the allegation and challenged Estrada to appear in the open and prove his
allegation in the proper forum.[6] Judge Caoibes set a preliminary conference on October
12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to
avoid suspicion and bias as she previously filed an administrative complaint against him
and said case was still pending in the Office of the Court Administrator (OCA). Escritors
motion was denied. The preliminary conference proceeded with both Estrada and Escritor
in attendance. Estrada confirmed that he filed the letter-complaint for immorality against
Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned
from conversations therein that Escritor was living with a man not her husband and that
she had an eighteen to twenty-year old son by this man. This prompted him to write to
Judge Caoibes as he believed that employees of the judiciary should be respectable and
Escritors live-in arrangement did not command respect.[7]
Respondent Escritor testified that when she entered the judiciary in 1999, [8] she was
already a widow, her husband having died in 1998.[9] She admitted that she has been
living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that
they have a son. But as a member of the religious sect known as the Jehovahs Witnesses
and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity
with their religious beliefs. In fact, after ten years of living together, she executed on July
28, 1991 a Declaration of Pledging Faithfulness, viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr.,
as my mate in marital relationship; that I have done all within my ability to obtain
legal recognition of this relationship by the proper public authorities and that it is
because of having been unable to do so that I therefore make this public declaration
pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before Jehovah God and before all
persons to be held to and honored in full accord with the principles of Gods Word. I
will continue to seek the means to obtain legal recognition of this relationship by the
civil authorities and if at any future time a change in circumstances make this
possible, I promise to legalize this union.

Signed this 28th day of July 1991. [10]

Escritors partner, Quilapio, executed a similar pledge on the same day. [11] Both pledges
were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor
executed her pledge, her husband was still alive but living with another woman. Quilapio
was likewise married at that time, but had been separated in fact from his wife. During
her testimony, Escritor volunteered to present members of her congregation to confirm
the truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes deemed
it unnecessary and considered her identification of her signature and the signature of
Quilapio sufficient authentication of the documents.[12]
 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez,
Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July
17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N.
Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor
reiterated her religious congregations approval of her conjugal arrangement with
Quilapio, viz:

Herein respondent does not ignore alleged accusation but she reiterates to state with
candor that there is no truth as to the veracity of same allegation. Included herewith
are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and
Exhibit 2) duly signed by both respondent and her mate in marital relationship with
the witnesses concurring their acceptance to the arrangement as approved by the
WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before JEHOVAH God and
before all persons to be held to and honored in full accord with the principles of Gods
Word.

xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch . . . to which undersigned believes to be a high authority in relation to her
case.[13]

Deputy Court Administrator Christopher O. Lock recommended that the case be

referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for
investigation, report and recommendation. In the course of Judge Macedas investigation,
Escritor again testified that her congregation allows her conjugal arrangement with
Quilapio and it does not consider it immoral. She offered to supply the investigating judge
some clippings which explain the basis of her congregations belief and practice regarding
her conjugal arrangement.Escritor started living with Quilapio twenty years ago when her
husband was still alive but living with another woman. She met this woman who confirmed
to her that she was living with her (Escritors) husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He
had been a presiding minister since 1991 and in such capacity is aware of the rules and
regulations of their congregation. He explained the import of and procedure for executing
a Declaration of Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some
particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved
and then we request them to execute a Public Declaration of Pledge of
faithfulness.
 Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who
are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized
member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put
themselves on record before God and man that they are faithful to each other. As
if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document between
the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of
faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted
with the opposite member of my congregation, opposite sex, and that this
document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a
preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the
same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties
have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we
Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five,
Verse Twenty-two. So, in that verse of the Bible, Jesus said that everyone
divorcing his wife, except on account of fornication, makes her a subject for
adultery, and whoever marries a divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza
Congregation in Las Pias, in May 2001. The declarations having been executed in
Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal
circumstances of Escritor and Quilapio when they executed their declarations. However,
when the two transferred to Almanza, Salazar inquired about their status from the
Atimonan Congregation, gathered comments of the elders therein, and requested a copy
of their declarations. The Almanza Congregation assumed that the personal
circumstances of the couple had been considered by the Atimonan Congregation when
they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower Central
office. They were executed in the usual and approved form prescribed by the Watch
Tower Bible and Tract Society which was lifted from the article, Maintaining Marriage in
Honor Before God and Men, [16] in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses
congregation and is binding within the congregation all over the world except in countries
where divorce is allowed. The Jehovahs congregation requires that at the time the
declarations are executed, the couple cannot secure the civil authorities approval of the
marital relationship because of legal impediments. It is thus standard practice of the
congregation to check the couples marital status before giving imprimatur to the conjugal
arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that
when the spouse commits adultery, the offended spouse can remarry. The marital status
of the declarants and their respective spouses commission of adultery are investigated
before the declarations are executed. Thus, in the case of Escritor, it is presumed that the
Atimonan Congregation conducted an investigation on her marital status before the
declaration was approved and the declaration is valid everywhere, including the Almanza
Congregation. That Escritors and Quilapios declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan Congregation. Salazar
confirmed from the congregations branch office that these three witnesses are elders in
the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus,
their declarations remain valid. Once all legal impediments for both are lifted, the couple
can already register their marriage with the civil authorities and the validity of the
declarations ceases. The elders in the congregations can then solemnize their marriage
as authorized by Philippine law. In sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the conjugal arrangement between Escritor
and Quilapio and they remain members in good standing in the congregation. [17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of
the Jehovahs Witnesses since 1974 and member of the headquarters of the Watch Tower
Bible and Tract Society of the Philippines, Inc., presented the original copy of the
magazine article entitled, Maintaining Marriage Before God and Men to which Escritor
and Minister Salazar referred in their testimonies. The article appeared in the March 15,
1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S.
Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
authorized Reyes to represent him in authenticating the article. The article is distributed
to the Jehovahs Witnesses congregations which also distribute them to the public.[18]
The parties submitted their respective memoranda to the investigating judge. Both
stated that the issue for resolution is whether or not the relationship between respondent
Escritor and Quilapio is valid and binding in their own religious congregation, the
Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the
relationship to Escritors administrative liability must likewise be determined. Estrada
argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the
supremacy of the proper public authorities such that she bound herself to seek means to
. . . legalize their union. Thus, even assuming arguendo that the declaration is valid and
binding in her congregation, it is binding only to her co-members in the congregation and
serves only the internal purpose of displaying to the rest of the congregation that she and
her mate are a respectable and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law for government
employees. To rule otherwise would create a dangerous precedent as those who cannot
legalize their live-in relationship can simply join the Jehovahs Witnesses congregation
and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion, the Jehovahs
Witnesses. She quoted portions of the magazine article entitled, Maintaining Marriage
Before God and Men, in her memorandum signed by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the

respondent and her mate greatly affect the administrative liability of
respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of the
proper public authorities in the marriage arrangement. However, it is helpful to
understand the relative nature of Caesars authority regarding marriage. From country
to country, marriage and divorce legislation presents a multitude of different angles
and aspects. Rather than becoming entangled in a confusion of technicalities, the
Christian, or the one desiring to become a disciple of Gods Son, can be guided by
basic Scriptural principles that hold true in all cases.

Gods view is of first concern. So, first of all the person must consider whether that
ones present relationship, or the relationship into which he or she contemplates
entering, is one that could meet with Gods approval, or whether in itself, it violates the
standards of Gods Word. Take, for example, the situation where a man lives with a
wife but also spends time living with another woman as a concubine. As long as such
a state of concubinage prevails, the relationship of the second woman can never be
harmonized with Christian principles, nor could any declaration on the part of the
woman or the man make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a member of ones
immediate family, or a homosexual relationship or other such situation condemned by
Gods Word. It is not the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a
person involved in such a situation could not make any kind of Declaration of
Faithfulness, since it would have no merit in Gods eyes.

If the relationship is such that it can have Gods approval, then, a second principle to
consider is that one should do all one can to establish the honorableness of ones
marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step
should now be taken so that, having obtained the divorce (on whatever legal grounds
may be available), the present union can receive civil validation as a recognized
marriage.

Finally, if the marital relationship is not one out of harmony with the principles of
Gods Word, and if one has done all that can reasonably be done to have it recognized
by civil authorities and has been blocked in doing so, then, a Declaration Pledging
Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of
official action may make accomplishing of legal steps a matter of many, many years
of effort. Or it may be that the costs represent a crushingly heavy burden that the
individual would need years to be able to meet. In such cases, the declaration pledging
faithfulness will provide the congregation with the basis for viewing the existing
union as honorable while the individual continues conscientiously to work out the
legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of

Jehovah God, should be able to approach the matter in a balanced way, neither
underestimating nor overestimating the validation offered by the political state. She
always gives primary concern to Gods view of the union. Along with this, every effort
should be made to set a fine example of faithfulness and devotion to ones mate, thus,
keeping the marriage honorable among all. Such course will bring Gods blessing and
result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-
33)[20]

Respondent also brought to the attention of the investigating judge that complainants
Memorandum came from Judge Caoibes chambers[21] whom she claims was merely using
petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors
factual allegations credible as they were supported by testimonial and documentary
evidence. He also noted that (b)y strict Catholic standards, the live-in relationship of
respondent with her mate should fall within the definition of immoral conduct, to wit: that
which is willful, flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community (7 C.J.S. 959) (Delos
Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more relevant
question is whether or not to exact from respondent Escritor, a member of Jehovahs
Witnesses, the strict moral standards of the Catholic faith in determining her
administrative responsibility in the case at bar.[22] The investigating judge acknowledged
that religious freedom is a fundamental right which is entitled to the highest priority and
the amplest protection among human rights, for it involves the relationship of man to his
Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby
recommended the dismissal of the complaint against Escritor.[23]
 After considering the Report and Recommendation of Executive Judge Maceda, the
Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and
with the approval of Court Administrator Presbitero Velasco, concurred with the factual
findings of Judge Maceda but departed from his recommendation to dismiss the
complaint. DCA Lock stressed that although Escritor had become capacitated to marry
by the time she joined the judiciary as her husband had died a year before, it is due to
her relationship with a married man, voluntarily carried on, that respondent may still be
subject to disciplinary action.[24] Considering the ruling of the Court in Dicdican v. Fernan,
et al.[25] that court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of the court of justice, DCA Lock found Escritors defense of
freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of immorality
and that she be penalized with suspension of six months and one day without pay with a
warning that a repetition of a similar act will be dealt with more severely in accordance
with the Civil Service Rules.[26]

II. Issue

Whether or not respondent should be found guilty of the administrative charge of

gross and immoral conduct. To resolve this issue, it is necessary to determine the sub-
issue of whether or not respondents right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.

III. Applicable Laws

Respondent is charged with committing gross and immoral conduct under Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law and after
due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in laymans terms, invokes the religious

beliefs and practices and moral standards of her religion, the Jehovahs Witnesses, in
asserting that her conjugal arrangement with a man not her legal husband does not
constitute disgraceful and immoral conduct for which she should be held administratively
liable. While not articulated by respondent, she invokes religious freedom under Article
III, Section 5 of the Constitution, which provides, viz:

Sec. 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.

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the Old World. One
cannot understand, much less intelligently criticize the approaches of the courts and the
political branches to religious freedom in the recent past in the United States without a
deep appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience.[27] This fresh look at the religion clauses is proper in
deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every significant event
in the primitive mans life, from birth to death, was marked by religious ceremonies. Tribal
society survived because religious sanctions effectively elicited adherence to social
customs. A person who broke a custom violated a taboo which would then bring upon
him the wrathful vengeance of a superhuman mysterious power.[28] Distinction between
the religious and non-religious would thus have been meaningless to him. He sought
protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind
- from the same person. The head of the clan or the Old Man of the tribe or the king
protected his wards against both human and superhuman enemies. In time, the king not
only interceded for his people with the divine powers, but he himself was looked upon as
a divine being and his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary between human
and spiritual powers became sufficiently differentiated from the responsibility of leading
the tribe in war and policing it in peace as to require the full-time services of a special
priest class. This saw the birth of the social and communal problem of the competing
claims of the king and priest.Nevertheless, from the beginning, the king and not the priest
was superior. The head of the tribe was the warrior, and although he also performed
priestly functions, he carried out these functions because he was the head and
representative of the community.[30]
There being no distinction between the religious and the secular, the same authority
that promulgated laws regulating relations between man and man promulgated laws
concerning mans obligations to the supernatural. This authority was the king who was the
head of the state and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed
penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons
and the wages of masons and tailors and prescribed rules for inheritance of
property;[31] and also catalogued the gods and assigned them their places in the divine
hierarchy so as to put Hammurabis own god to a position of equality with existing
gods.[32] In sum, the relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the dominant
partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe the relation
of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the
state was ascribed to God.[34] The Mosaic creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch,
prophet, and priest preceded king and prince. As man of God, Moses decided when the
people should travel and when to pitch camp, when they should make war and when
peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the
priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious
mandates, but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and all-embracing:
sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or
using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine
to advance the purposes of the state. Hammurabi unified Mesopotamia and established
Babylon as its capital by elevating its city-god to a primary position over the previous
reigning gods.[35] Moses, on the other hand, capitalized on the natural yearnings of the
Hebrew slaves for freedom and independence to further Gods purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan
was a preparation for the building of the temple and the full worship of God. [36]
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion in western
civilization, but equally, the future of the relationship between religion and state in the
west. This fact is acknowledged by many writers, among whom is Northcott who pointed
out, viz:

Historically it was the Hebrew and Christian conception of a single and universal
God that introduced a religious exclusivism leading to compulsion and
persecution in the realm of religion.Ancient religions were regarded as confined
to each separate people believing in them, and the question of change from one
religious belief to another did not arise. It was not until an exclusive fellowship,
that the questions of proselytism, change of belief and liberty
of religion arose. (emphasis supplied)
[37]

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period,
religion was not only superior to the state, but it was all of the state. The Law of God as
transmitted through Moses and his successors was the whole of government.
 With Saul, however, the state rose to be the rival and ultimately, the master, of
religion. Saul and David each received their kingdom from Samuel the prophet and
disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed
and even sought to slay Samuel the prophet of God.[38] Under Solomon, the subordination
of religion to state became complete; he used religion as an engine to further the states
purposes. He reformed the order of priesthood established by Moses because the high
priest under that order endorsed the claim of his rival to the throne. [39]
The subordination of religion to the state was also true in pre-Christian Rome which
engaged in emperor-worship. When Augustus became head of the Roman state and the
priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish
the real religion of pre-Christian Rome - the worship of the head of the state. He set his
great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius
should not be less than worship of Apollo, Jupiter and other gods. When Augustus died,
he also joined the ranks of the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the Christians
dogmatic exclusiveness prevented them from paying homage to publicly accepted
gods. In the first two centuries after the death of Jesus, Christians were subjected to
persecution. By the time of the emperor Trajan, Christians were considered
outlaws. Their crime was hatred of the human race, placing them in the same category
as pirates and brigands and other enemies of mankind who were subject to summary
punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire and make
its administration more efficient. But the closely-knit hierarchically controlled church
presented a serious problem, being a state within a state over which he had no control. He
had two options: either to force it into submission and break its power or enter into an
alliance with it and procure political control over it. He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy
and by torture forced them to sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine
joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of
toleration to Christians on condition that nothing is done by them contrary to discipline.[43] A
year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history of religious
liberty. It provided that liberty of worship shall not be denied to any, but that the mind
and will of every individual shall be free to manage divine affairs according to his own
choice. (emphasis supplied) Thus, all restrictive statutes were abrogated and it was
enacted that every person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or
hindrance. Furthermore, it was provided that the same free and open power to follow their
own religion or worship is granted also to others, in accordance with the tranquillity of our
times, in order that every person may have free opportunity to worship the object of
his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired privilege, then
prestige, and eventually, exclusive power. Religion became an engine of state policy as
Constantine considered Christianity a means of unifying his complex empire. Within
seven years after the Edict of Milan, under the emperors command, great Christian
edifices were erected, the clergy were freed from public burdens others had to bear, and
private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed church councils,
and enforced unity of belief and practice. Until recently the church had been the victim of
persecution and repression, but this time it welcomed the states persecution and
repression of the nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not
easy. It was a constant struggle of one claiming dominance over the other. In time,
however, after the collapse and disintegration of the Roman Empire, and while
monarchical states were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and universal power. Not
surprisingly, therefore, it claimed not merely equality but superiority over the
secular states. This claim, symbolized by Pope Leos crowning of Charlemagne, became
the churchs accepted principle of its relationship to the state in the Middle Ages. As
viewed by the church, the union of church and state was now a union of the state in the
church. The rulers of the states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy.[45] The whole history of medieval
Europe was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the second
quarter of the 13th century, the Inquisition was established, the purpose of which was the
discovery and extermination of heresy. Accused heretics were tortured with the approval
of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at
reforming the Catholic Church and resulting in the establishment of Protestant
churches. While Protestants are accustomed to ascribe to the Reformation the rise of
religious liberty and its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate to say that the
same causes that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the principle of separation
of church and state.[46] Pleas for tolerance and freedom of conscience can without doubt
be found in the writings of leaders of the Reformation.But just as Protestants living in the
countries of papists pleaded for toleration of religion, so did the papists that lived where
Protestants were dominant.[47] Papist and Protestant governments alike accepted the idea
of cooperation between church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion. [48]Certainly, Luther, leader of
the Reformation, stated that neither pope, nor bishop, nor any man whatever has the right
of making one syllable binding on a Christian man, unless it be done with his own
consent.[49] But when the tables had turned and he was no longer the hunted heretic, he
likewise stated when he made an alliance with the secular powers that (h)eretics are not
to be disputed with, but to be condemned unheard, and whilst they perish by fire, the
faithful ought to pursue the evil to its source, and bathe their hands in the blood of the
Catholic bishops, and of the Pope, who is a devil in disguise. [50] To Luther, unity among
the peoples in the interests of the state was an important consideration. Other
personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly
espoused theocracy or the use of the state as an engine to further religion. In establishing
theocracy in Geneva, Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious liberty. Erasmus, who
belonged to the Renaissance than the Reformation, wrote that (t)he terrible papal edict,
the more terrible imperial edict, the imprisonments, the confiscations, the recantations,
the fagots and burnings, all these things I can see accomplish nothing except to make the
evil more widespread.[52] The minority or dissident sects also ardently advocated
religious liberty. The Anabaptists, persecuted and despised, along with the Socinians
(Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century,
endorsed the supremacy and freedom of the individual conscience. They regarded
religion as outside the realm of political governments. [53] The English Baptists proclaimed
that the magistrate is not to meddle with religion or matters of conscience, nor compel
men to this or that form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state relations may be
distinguished: the Erastian (after the German doctor Erastus), the theocratic, and
the separatist.The first assumed state superiority in ecclesiastical affairs and the use of
religion as an engine of state policy as demonstrated by Luthers belief that civic cohesion
could not exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use of state
machinery to further religious interests as promoted by Calvin. The third, which was yet
to achieve ultimate and complete expression in the New World, was discernibly in
its incipient form in the arguments of some dissident minorities that the magistrate
should not intermeddle in religious affairs.[55] After the Reformation, Erastianism
pervaded all Europe except for Calvins theocratic Geneva. In England, perhaps more
than in any other country, Erastianism was at its height. To illustrate, a statute was
enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all
clergymen the duty of seeing to it that no person was buried in a shroud made of any
substance other than wool.[56] Under Elizabeth, supremacy of the crown over the church
was complete: ecclesiastical offices were regulated by her proclamations, recusants were
fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason,
the thirty-nine Articles of the Church of England were adopted and English Protestantism
attained its present doctrinal status.[57] Elizabeth was to be recognized as the only
Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or
causes as temporal. She and her successors were vested, in their dominions, with all
manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning
any spiritual or ecclesiastical jurisdiction.[58] Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.[59] In 1689, William III issued the Act of Toleration which
established a de facto toleration for all except Catholics. The Catholics
achieved religious liberty in the 19th century when the Roman Catholic Relief Act of
1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to
sit in Parliament.[60]
When the representatives of the American states met in Philadelphia in 1787 to
draft the constitutional foundation of the new republic, the theocratic state which had
flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely gone. The prevailing church-state relationship in Europe was Erastianism
embodied in the system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with freedom in various
degrees. No nation had yet adopted as the basis of its church-state relations the
principle of the mutual independence of religion and government and the
concomitant principle that neither might be used as an engine to further the
policies of the other, although the principle was in its seminal form in the
arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the
past by the time America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as expressed by
the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of

America had been filled with turmoil, civil strife, and persecution generated in large
part by established sects determined to maintain their absolute political and religious
supremacy. With the power of government supporting them, at various times and
places, Catholics had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of these had from time to
time persecuted Jews. In efforts to force loyalty to whatever religious group happened
to be on top and in league with the government of a particular time and place, men
and women had been fined, cast in jail, cruelly tortured, and killed. Among the
offenses for which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established churches, non-
attendance at those churches, expressions of non-belief in their doctrines, and failure
to pay taxes and tithes to support them.[61]

In 1784, James Madison captured in this statement the entire history of church-state
relations in Europe up to the time the United States Constitution was adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.[62]

In sum, this history shows two salient features: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression,
hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and
emperors in exchange for religions invaluable service. This was the context in
which the unique experiment of the principle of religious freedom and separation
of church and state saw its birth in American constitutional democracy and in
human history.[63]

V. Factors Contributing to the Adoption

of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated

England, established many of the American colonies. British thought pervaded these
colonies as the immigrants brought with them their religious and political ideas from
England and English books and pamphlets largely provided their cultural fare. [64] But
although these settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some of these
settlers themselves transplanted into American soil the oppressive practices they
escaped from. The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether believers or not,
were required to support or attend.[65] At one time, six of the colonies established a state
religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high
degree of religious diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths.[66]
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the experiment
cannot be attributed to a single cause or event. Rather, a number of interdependent
practical and ideological factors contributed in bringing it forth. Among these were the
English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on
the part of most Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their experiments, the
writings of Locke, the social contract theory, the Great Awakening, and the influence of
European rationalism and deism.[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the American
colonies to different faiths resulted in the multiplicity of sects in the colonies. With an
Erastian justification, English lords chose to forego protecting what was considered to be
the true and eternal church of a particular time in order to encourage trade and
commerce. The colonies were large financial investments which would be profitable only
if people would settle there. It would be difficult to engage in trade with persons one seeks
to destroy for religious belief, thus tolerance was a necessity. This tended to distract the
colonies from their preoccupations over their religion and its exclusiveness, encouraging
them to think less of the Church and more of the State and of commerce. [68] The diversity
brought about by the colonies open gates encouraged religious freedom and non-
establishment in several ways. First, as there were too many dissenting sects to abolish,
there was no alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive rightness of
ones religion, which impels persecution for the sake of ones religion, waned. Finally,
because of the great diversity of the sects, religious uniformity was not possible, and
without such uniformity, establishment could not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there was a scarcity
of adherents. Only about four percent of the entire population of the country had a church
affiliation at the time the republic was founded.[70] This might be attributed to the drifting to
the American colonies of the skepticism that characterized European
Enlightenment.[71] Economic considerations might have also been a factor. The
individualism of the American colonist, manifested in the multiplicity of sects, also resulted
in much unaffiliated religion which treated religion as a personal non-institutional
matter. The prevalence of lack of church affiliation contributed to religious liberty and
disestablishment as persons who were not connected with any church were not likely to
persecute others for similar independence nor accede to compulsory taxation to support
a church to which they did not belong.[72]
However, for those who were affiliated to churches, the colonial policy regarding their
worship generally followed the tenor of the English Act of Toleration of 1689. In England,
this Act conferred on Protestant dissenters the right to hold public services subject to
registration of their ministers and places of worship.[73] Although the toleration accorded to
Protestant dissenters who qualified under its terms was only a modest advance in
religious freedom, it nevertheless was of some influence to the American
experiment.[74] Even then, for practical considerations, concessions had to be made to
other dissenting churches to ensure their cooperation in the War of Independence which
thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an
evangelical religious revival originating in New England, caused a break with formal
church religion and a resistance to coercion by established churches. This movement
emphasized an emotional, personal religion that appealed directly to the individual,
putting emphasis on the rights and duties of the individual conscience and its
answerability exclusively to God. Thus, although they had no quarrel with orthodox
Christian theology as in fact they were fundamentalists, this group became staunch
advocates of separation of church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the founder of
the colony of Rhode Island where he established a community of Baptists, Quakers and
other nonconformists. In this colony, religious freedom was not based on practical
considerations but on the concept of mutual independence of religion and government. In
1663, Rhode Island obtained a charter from the British crown which declared that settlers
have it much on their heart to hold forth a livelie experiment that a most flourishing civil
state may best be maintained . . . with full libertie in religious concernments. [76] In Williams
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a
Conference between Truth and Peace,[77]he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of church and state
did not constitute two but only one principle. Religious persecution is wrong because it
confounds the Civil and Religious and because States . . . are proved essentially
Civil. The power of true discerning the true fear of God is not one of the powers that the
people have transferred to Civil Authority.[78] Williams Bloudy Tenet is considered an
epochal milestone in the history of religious freedom and the separation of church and
state.[79]
William Penn, proprietor of the land that became Pennsylvania, was also an ardent
advocate of toleration, having been imprisoned for his religious convictions as a member
of the despised Quakers. He opposed coercion in matters of conscience because
imposition, restraint and persecution for conscience sake, highly invade the Divine
prerogative. Aside from his idealism, proprietary interests made toleration in
Pennsylvania necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At the end of
the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was
responsible in large part for the Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America, a monumental document in the
history of civil liberty which provided among others, for liberty of conscience.[80] The Baptist
followers of Williams and the Quakers who came after Penn continued the tradition
started by the leaders of their denominations. Aside from the Baptists and the Quakers,
the Presbyterians likewise greatly contributed to the evolution of separation and
freedom.[81] The Constitutional fathers who convened in Philadelphia in 1787, and
Congress and the states that adopted the First Amendment in 1791 were very familiar
with and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was so widely
accepted as to be deemed self-evident truth in Americas Declaration of
Independence. With the doctrine of natural rights and equality set forth in the Declaration
of Independence, there was no room for religious discrimination. It was difficult to justify
inequality in religious treatment by a new nation that severed its political bonds with the
English crown which violated the self-evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in arguing against
establishment, putting emphasis on religion as a natural right that is entirely personal and
not within the scope of the powers of a political body. That Locke and the social contract
theory were influential in the development of religious freedom and separation is evident
from the memorial presented by the Baptists to the Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an intention in every one
the better to preserve himself, his liberty and property. The power of the society, or
Legislature constituted by them, can never be supposed to extend any further than the
common good, but is obliged to secure every ones property. To give laws, to receive
obedience, to compel with the sword, belong to none but the civil magistrate; and on
this ground we affirm that the magistrates power extends not to establishing any
articles of faith or forms of worship, by force of laws; for laws are of no force without
penalties. The care of souls cannot belong to the civil magistrate, because his
power consists only in outward force; but pure and saving religion consists in the
inward persuasion of the mind, without which nothing can be acceptable to
God. (emphasis supplied)
[84]

The idea that religion was outside the jurisdiction of civil government was acceptable to
both the religionist and rationalist. To the religionist, God or Christ did not desire that
government have that jurisdiction (render unto Caesar that which is Caesars; my kingdom
is not of this world) and to the rationalist, the power to act in the realm of religion was not
one of the powers conferred on government as part of the social contract. [85]
Not only the social contract theory drifted to the colonies from Europe. Many of the
leaders of the Revolutionary and post-revolutionary period were also influenced by
European deism and rationalism,[86] in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized religion. Jefferson,
Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be
among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis
on secular interests and the relegation of historic theology to the background. [87] For these
men of the enlightenment, religion should be allowed to rise and fall on its own, and the
state must be protected from the clutches of the church whose entanglements has caused
intolerance and corruption as witnessed throughout history.[88] Not only the leaders but
also the masses embraced rationalism at the end of the eighteenth century, accounting
for the popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in Virginia contributed
significantly to the American experiment of the First Amendment. Virginia was the first
state in the history of the world to proclaim the decree of absolute divorce between
church and state.[90] Many factors contributed to this, among which were that half to two-
thirds of the population were organized dissenting sects, the Great Awakening had won
many converts, the established Anglican Church of Virginia found themselves on the
losing side of the Revolution and had alienated many influential laymen with its
identification with the Crowns tyranny, and above all, present in Virginia was a group of
political leaders who were devoted to liberty generally, [91] who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick Henry, George
Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following
provision in the Bill of Rights of the states first constitution:

That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and therefore, all men are equally entitled to the free exercise of
religion according to the dictates of conscience; and that it is the mutual duty of all
to practice Christian forbearance, love, and charity towards each other. (emphasis
[92]

supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first legislative
assembly with petitions for abolition of establishment. While the majority of the population
were dissenters, a majority of the legislature were churchmen. The legislature
compromised and enacted a bill in 1776 abolishing the more oppressive features of
establishment and granting exemptions to the dissenters, but not guaranteeing
separation. It repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the establishment. [93] But the
dissenters were not satisfied; they not only wanted abolition of support for the
establishment, they opposed the compulsory support of their own religion as others. As
members of the established church would not allow that only they would pay taxes while
the rest did not, the legislature enacted in 1779 a bill making permanent the
establishments loss of its exclusive status and its power to tax its members; but those
who voted for it did so in the hope that a general assessment bill would be
passed. Without the latter, the establishment would not survive. Thus, a bill was
introduced in 1779 requiring every person to enroll his name with the county clerk and
indicate which society for the purpose of Religious Worship he wished to support. On the
basis of this list, collections were to be made by the sheriff and turned over to the
clergymen and teachers designated by the religious congregation. The assessment of
any person who failed to enroll in any society was to be divided proportionately among
the societies.[94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian
Religion was introduced requiring all persons to pay a moderate tax or contribution
annually for the support of the Christian religion, or of some Christian church,
denomination or communion of Christians, or for some form of Christian worship. [95] This
likewise aroused the same opposition to the 1779 bill. The most telling blow against the
1784 bill was the monumental Memorial and Remonstrance against Religious
Assessments written by Madison and widely distributed before the reconvening of
legislature in the fall of 1785.[96] It stressed natural rights, the governments lack of
jurisdiction over the domain of religion, and the social contract as the ideological
basis of separation while also citing practical considerations such as loss of population
through migration. He wrote, viz:

Because we hold it for a fundamental and undeniable truth, that religion, or the
duty which we owe to our creator, and the manner of discharging it, can be directed
only by reason and conviction, not by force or violence. The religion, then, of every
man, must be left to the conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate. This right is, in its nature,
an unalienable right. It is unalienable, because the opinions of men, depending only
on the evidence contemplated in their own minds, cannot follow the dictates of other
men; it is unalienable, also, because what is here a right towards men, is a duty
towards the creator. It is the duty of every man to render the creator such homage,
and such only as he believes to be acceptable to him; this duty is precedent, both
in order of time and degree of obligation, to the claims of civil society. Before any
man can be considered as a member of civil society, he must be considered as a
subject of the governor of the universe; and if a member of civil society, who enters
into any subordinate association, must always do it with a reservation of his duty to
the general authority, much more must every man who becomes a member of any
particular civil society do it with the saving his allegiance to the universal
sovereign. (emphases supplied)
[97]

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the
great number of signatures appended to the Memorial. The assessment bill was speedily
defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of
Jefferson which had not been voted on, the Bill for Establishing Religious Freedom, and
it was finally passed in January 1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to
influence it by temporal punishments or burdens, or by civil incapacitations, tend not
only to beget habits of hypocrisy and meanness, and are a departure from the plan of
the Holy Author of our religion, who being Lord both of body and mind, yet chose not
to propagate it by coercions on either, as was in his Almighty power to do;

xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to

frequent or support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of religion, and
that the same shall in no wise diminish, enlarge or affect their civil
capacities. (emphases supplied)
[98]

This statute forbade any kind of taxation in support of religion and effectually ended any
thought of a general or particular establishment in Virginia. [99] But the passage of this law
was obtained not only because of the influence of the great leaders in Virginia but also
because of substantial popular support coming mainly from the two great dissenting
sects, namely the Presbyterians and the Baptists. The former were never established in
Virginia and an underprivileged minority of the population. This made them anxious to pull
down the existing state church as they realized that it was impossible for them to be
elevated to that privileged position. Apart from these expediential considerations,
however, many of the Presbyterians were sincere advocates of separation [100] grounded
on rational, secular arguments and to the language of natural religion.[101] Influenced by
Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a
matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural,
having no relation with the social order.[102] To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported
religion was contrary ti the spirit of the Gospel.[103] Thus, separation was
necessary.[104] Jeffersons religious freedom statute was a milestone in the history of
religious freedom. The United States Supreme Court has not just once
acknowledged that the provisions of the First Amendment of the U.S. Constitution
had the same objectives and intended to afford the same protection against
government interference with religious liberty as the Virginia Statute of Religious
Liberty.
Even in the absence of the religion clauses, the principle that government had no
power to legislate in the area of religion by restricting its free exercise or establishing it
was implicit in the Constitution of 1787. This could be deduced from the prohibition of any
religious test for federal office in Article VI of the Constitution and the assumed lack of
power of Congress to act on any subject not expressly mentioned in the
Constitution.[105] However, omission of an express guaranty of religious freedom and other
natural rights nearly prevented the ratification of the Constitution. [106] In the ratifying
conventions of almost every state, some objection was expressed to the absence of a
restriction on the Federal Government as regards legislation on religion.[107] Thus, in 1791,
this restriction was made explicit with the adoption of the religion clauses in the First
Amendment as they are worded to this day, with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause, viz:

Congress shall make no law respecting an establishment of religion or prohibiting the

free exercise thereof.

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion
clauses comes an equally broad disagreement as to what these clauses specifically
require, permit and forbid. No agreement has been reached by those who have studied
the religion clauses as regards its exact meaning and the paucity of records in Congress
renders it difficult to ascertain its meaning.[108] Consequently, the jurisprudence in this
area is volatile and fraught with inconsistencies whether within a Court decision or
across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s, religion played a
primary role in social life - i.e., family responsibilities, education, health care, poor relief,
and other aspects of social life with significant moral dimension - while government played
a supportive and indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today, government plays
this primary role and religion plays the supportive role.[109] Government runs even family
planning, sex education, adoption and foster care programs.[110] Stated otherwise and with
some exaggeration, (w)hereas two centuries ago, in matters of social life which have a
significant moral dimension, government was the handmaid of religion, today religion, in
its social responsibilities, as contrasted with personal faith and collective worship, is the
handmaid of government.[111] With government regulation of individual conduct having
become more pervasive, inevitably some of those regulations would reach conduct that
for some individuals are religious. As a result, increasingly, there may be inadvertent
collisions between purely secular government actions and religion clause values.[112]
Parallel to this expansion of government has been the expansion of religious
organizations in population, physical institutions, types of activities undertaken, and sheer
variety of denominations, sects and cults. Churches run day-care centers, retirement
homes, hospitals, schools at all levels, research centers, settlement houses, halfway
houses for prisoners, sports facilities, theme parks, publishing houses and mass media
programs. In these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches have also concerned
themselves with social and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and human life, or in
ringing affirmations for racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has significantly changed
the environment in which religious organizations and activities exist and the laws affecting
them are made. It is no longer easy for individuals to live solely among their own kind or
to shelter their children from exposure to competing values. The result is disagreement
over what laws should require, permit or prohibit; [113] and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just due, a rigid,
wooden interpretation of the religion clauses that is blind to societal and political realities
must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones arise from
a government action which purposely aids or inhibits religion. These cases are easier to
resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases
poses difficulty in ascertaining proof of intent to aid or inhibit religion.[115] The more difficult
religion clause cases involve government action with a secular purpose and general
applicability which incidentally or inadvertently aids or burdens religious exercise. In Free
Exercise Clause cases, these government actions are referred to as those with
burdensome effect on religious exercise even if the government action is not religiously
motivated.[116] Ideally, the legislature would recognize the religions and their practices and
would consider them, when practical, in enacting laws of general application. But when
the legislature fails to do so, religions that are threatened and burdened turn to the courts
for protection.[117] Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a burdensome effect. [118]
With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for purposes of
interpreting the religion clauses has also been modified to suit current
realities. Defining religion is a difficult task for even theologians, philosophers and
moralists cannot agree on a comprehensive definition. Nevertheless, courts must define
religion for constitutional and other legal purposes.[119] It was in the 1890 case of Davis v.
Beason[120] that the United States Supreme Court first had occasion to define
religion, viz:

The term religion has reference to ones views of his relations to his Creator, and
to the obligations they impose of reverence for his being and character, and of
obedience to his will. It is often confounded with the cultus or form of worship of a
particular sect, but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law respecting the
establishment of religion, or forbidding the free exercise thereof, was intended to
allow everyone under the jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose as may be approved
by his judgment and conscience, and to exhibit his sentiments in such form of worship
as he may think proper, not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of worship of any
sect.
[121]

The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free exercise of
religion embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths. [123] By the 1960s,
American pluralism in religion had flourished to include non-theistic creeds from Asia
such as Buddhism and Taoism.[124]In 1961, the Court, in Torcaso v. Watkins,[125] expanded
the term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and
Secular Humanism. Four years later, the Court faced a definitional problem in United
States v. Seeger[126] which involved four men who claimed conscientious objector status
in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of
any organized religion opposed to war, but when specifically asked about his belief in a
Supreme Being, Seeger stated that you could call (it) a belief in a Supreme Being or
God. These just do not happen to be the words that I use. Forest Peter, another one of
the four claimed that after considerable meditation and reflection on values derived from
the Western religious and philosophical tradition, he determined that it would be a
violation of his moral code to take human life and that he considered this belief superior
to any obligation to the state. The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion in the
Universal Military Training and Service Act of 1940 which exempt from combat anyone
who, by reason of religious training and belief, is conscientiously opposed to participation
in war in any form. Speaking for the Court, Justice Clark ruled, viz:

Congress, in using the expression Supreme Being rather than the designation God,
was merely clarifying the meaning of religious tradition and belief so as to embrace
all religions and to exclude essentially political, sociological, or philosophical views
(and) the test of belief in relation to a Supreme Being is whether a given belief
that is sincere and meaningful occupies a place in the life of its possessor parallel
to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious objectors
possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to
include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been proposed
that basically, a creed must meet four criteria to qualify as religion under the First
Amendment. First, there must be belief in God or some parallel belief that occupies a
central place in the believers life.Second, the religion must involve a moral code
transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.[127] Fourth, there must be some associational
ties,[128] although there is also a view that religious beliefs held by a single person rather
than being part of the teachings of any kind of group or sect are entitled to the protection
of the Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding religion clause
cases. Having hurdled the issue of definition, the court then has to draw lines to
determine what is or is not permissible under the religion clauses. In this task,
the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides
of the same coin.[130] In devoting two clauses to religion, the Founders were stating not two
opposing thoughts that would cancel each other out, but two complementary thoughts
that apply in different ways in different circumstances. [131] The purpose of the religion
clauses - both in the restriction it imposes on the power of the government to interfere
with the free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of religious
liberty.[132] The end, the goal, and the rationale of the religion clauses is this liberty.[133] Both
clauses were adopted to prevent government imposition of religious orthodoxy; the great
evil against which they are directed is government-induced homogeneity.[134] The Free
Exercise Clause directly articulates the common objective of the two clauses and
the Establishment Clause specifically addresses a form of interference with religious
liberty with which the Framers were most familiar and for which government historically
had demonstrated a propensity.[135] In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of those who might
dissent from whatever religion is established.[136] It has even been suggested that the
sense of the First Amendment is captured if it were to read as Congress shall make no
law respecting an establishment of religion or otherwise prohibiting the free exercise
thereof because the fundamental and single purpose of the two religious clauses is to
avoid any infringement on the free exercise of religions[137] Thus, the Establishment Clause
mandates separation of church and state to protect each from the other, in service of the
larger goal of preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the disadvantage
of those of other faiths, or of no faith at all[138] because history has shown that religious
fervor conjoined with state power is likely to tolerate far less religious disagreement and
disobedience from those who hold different beliefs than an enlightened secular state. [139] In
the words of the U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure
of our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured religious liberty
from the invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause cases, the line
the court draws to ensure that government does not establish and instead remains
neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight

line; rigidity could well defeat the basic purpose of these provisions, which is to
insure that no religion be sponsored or favored, none commanded and none
inhibited. (emphasis supplied)
[141]

Consequently, U.S. jurisprudence has produced two identifiably different, [142] even
opposing, strains of jurisprudence on the religion clauses: separation (in the form of
strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. A view of the landscape of
U.S. religion clause cases would be useful in understanding these two strains, the scope
of protection of each clause, and the tests used in religious clause cases. Most of these
cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v.
United States.[143] This landmark case involved Reynolds, a Mormon who proved that it
was his religious duty to have several wives and that the failure to practice polygamy by
male members of his religion when circumstances would permit would be punished with
damnation in the life to come. Reynolds act of contracting a second marriage violated
Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in jurisprudence would be
called the belief-action test which allows absolute protection to belief but not to action. It
cited Jeffersons Bill Establishing Religious Freedom which, according to the Court,
declares the true distinction between what properly belongs to the Church and what to
the State.[144] The bill, making a distinction between belief and action, states in relevant
part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers
to interfere when principles break out into overt acts against peace and good
order. (emphasis supplied)
[145]

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left
free to reach actions which were in violation of social duties or subversive of good
order. . .

Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices. Suppose one
believed that human sacrifice were a necessary part of religious worship, would it be
seriously contended that the civil government under which he lived could not interfere
to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself
upon the funeral pile of her dead husband, would it be beyond the power of the civil
government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the
United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law of the
land, and in effect to permit every citizen to become a law unto himself.Government
could exist only in name under such circumstances. [146]

The construct was thus simple: the state was absolutely prohibited by the Free Exercise
Clause from regulating individual religious beliefs, but placed no restriction on the ability
of the state to regulate religiously motivated conduct. It was logical for belief to be
accorded absolute protection because any statute designed to prohibit a particular
religious belief unaccompanied by any conduct would most certainly be motivated only
by the legislatures preference of a competing religious belief. Thus, all cases of regulation
of belief would amount to regulation of religion for religious reasons violative of the Free
Exercise Clause. On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislatures religious preferences. Any
burden on religion that results from state regulation of conduct arises only when particular
individuals are engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not figure in
the belief-action test. As long as the Court found that regulation address action rather
than belief, the Free Exercise Clause did not pose any problem. [147] The Free Exercise
Clause thus gave no protection against the proscription of actions even if considered
central to a religion unless the legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown by
cases where the Court upheld other laws which burdened the practice of the Mormon
religion by imposing various penalties on polygamy such as the Davis case and Church
of Latter Day Saints v. United States.[149] However, more than a century
since Reynolds was decided, the Court has expanded the scope of protection from
belief to speech and conduct. But while the belief-action test has been abandoned, the
rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.[150]
 The Free Exercise Clause accords absolute protection to individual religious
convictions and beliefs[151] and proscribes government from questioning a persons beliefs
or imposing penalties or disabilities based solely on those beliefs. The Clause extends
protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous
Court struck down a state law requiring as a qualification for public office an oath declaring
belief in the existence of God. The protection also allows courts to look into the good faith
of a person in his belief, but prohibits inquiry into the truth of a persons religious
beliefs. As held in United States v. Ballard,[153] (h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech and
expressive religious conduct are accorded the highest degree of protection. Thus,
in the 1940 case of Cantwell v. Connecticut,[154] the Court struck down a state law
prohibiting door-to-door solicitation for any religious or charitable cause without prior
approval of a state agency. The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The Court invalidated the
state statute as the prior approval necessary was held to be a censorship of religion
prohibited by the Free Exercise Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields the tenets of one may seem the rankest error to his neighbor. To persuade
others to his point of view, the pleader, as we know, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or state, and even to
false statement. But the people of this nation have ordained in the light of history, that,
in spite of the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens of a
democracy. [155]

Cantwell took a step forward from the protection afforded by the Reynolds case in that
it not only affirmed protection of belief but also freedom to act for the propagation of that
belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society. . . In every case, the
power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom. (emphasis supplied) [156]

The Court stated, however, that government had the power to regulate the times, places,
and manner of solicitation on the streets and assure the peace and safety of the
community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that
police could not prohibit members of the Jehovahs Witnesses from peaceably and orderly
proselytizing on Sundays merely because other citizens complained. In another case
likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the Court
unanimously held unconstitutional a city councils denial of a permit to the Jehovahs
Witnesses to use the city park for a public meeting. The city councils refusal was because
of the unsatisfactory answers of the Jehovahs Witnesses to questions about Catholicism,
military service, and other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain areas to maintain
the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron
v. International Society for Krishna Consciousness.[159]
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this realm
depends on the character of the action and the government rationale for regulating the
action.[160] The Mormons religious conduct of polygamy is an example of unconventional
religious practice. As discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case of Davis again
involving Mormons, where the Court held, viz: (c)rime is not the less odious because
sanctioned by what any particular sect may designate as religion.[161]
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this
test, regulation of religiously dictated conduct would be upheld no matter how central the
conduct was to the exercise of religion and no matter how insignificant was the
governments non-religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic belief-action distinction
and instead recognized the deliberate-inadvertent distinction, i.e., the distinction
between deliberate state interference of religious exercise for religious reasons which
was plainly unconstitutional and governments inadvertent interference with religion in
pursuing some secular objective.[162] In the 1940 case of Minersville School District v.
Gobitis,[163] the Court upheld a local school board requirement that all public school
students participate in a daily flag salute program, including the Jehovahs Witnesses who
were forced to salute the American flag in violation of their religious training, which
considered flag salute to be worship of a graven image. The Court recognized that the
general requirement of compulsory flag salute inadvertently burdened the Jehovah
Witnesses practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the basis of national
security. Thus, although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to hold that the Free
Exercise Clause presented no problem to interference with religion that was inadvertent
no matter how serious the interference, no matter how trivial the states non-religious
objectives, and no matter how many alternative approaches were available to the state
to pursue its objectives with less impact on religion, so long as government was acting in
pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette[164] which involved a similar set of facts and issue. The Court recognized that
saluting the flag, in connection with the pledges, was a form of utterance and the flag
salute program was a compulsion of students to declare a belief. The Court ruled that
compulsory unification of opinions leads only to the unanimity of the graveyard and
exempt the students who were members of the Jehovahs Witnesses from saluting the
flag. A close scrutiny of the case, however, would show that it was decided not on the
issue of religious conduct as the Court said, (n)or does the issue as we see it turn on
ones possession of particular religious views or the sincerity with which they are
held. While religion supplies appellees motive for enduring the discomforts of making the
issue in this case, many citizens who do not share these religious views hold such a
compulsory rite to infringe constitutional liberty of the individual. (emphasis
supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully protect. [166] The Court
seemed to recognize the extent to which its approach in Gobitis subordinated the
religious liberty of political minorities - a specially protected constitutional value - to the
common everyday economic and public welfare objectives of the majority in the
legislature. This time, even inadvertent interference with religion must pass judicial
scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing
to override religious liberty. But the seeds of this heightened scrutiny would only grow to
a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren Court
began the modern free exercise jurisprudence.[168] A two-part balancing test was
established in Braunfeld v. Brown[169] where the Court considered the constitutionality of
applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe
another day as the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the indirect effect of
a law with a secular purpose, it would violate the Free Exercise Clause only if there were
alternative ways of achieving the states interest. He employed a two-part balancing
test of validity where the first step was for plaintiff to show that the regulation placed a
real burden on his religious exercise. Next, the burden would be upheld only if the state
showed that it was pursuing an overriding secular goal by the means which imposed the
least burden on religious practices.[170] The Court found that the state had an overriding
secular interest in setting aside a single day for rest, recreation and tranquility and there
was no alternative means of pursuing this interest but to require Sunday as a uniform rest
day.
Two years after came the stricter compelling state interest test in the 1963 case
of Sherbert v. Verner.[171] This test was similar to the two-part balancing test in
Braunfeld,[172] but this latter test stressed that the state interest was not merely any
colorable state interest, but must be paramount and compelling to override the free
exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work on
Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is to
withstand appellants constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her
constitutional rights of free exercise, or because any incidental burden on the
free exercise of appellants religion may be justified by a compelling state interest
in the regulation of a subject within the States constitutional power to regulate. .
. NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. (emphasis[173]

supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement to
the religious right and a colorable state interest. (I)n this highly sensitive constitutional
area, [o]nly the gravest abuses, endangering paramount interests, give occasion for
permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315.[174] The Court found that there was no such compelling state interest to override
Sherberts religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing religious
liberty. The state, however, did not discharge this burden. The Court thus carved out for
Sherbert an exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court reasoned that
upholding the denial of Sherberts benefits would force her to choose between receiving
benefits and following her religion. This choice placed the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday
worship. This germinal case of Sherbert firmly established the exemption doctrine, [175] viz:

It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early
as Braunfeld), the Court moved from the doctrine that inadvertent or incidental
interferences with religion raise no problem under the Free Exercise Clause to the
doctrine that such interferences violate the Free Exercise Clause in the absence of a
compelling state interest - the highest level of constitutional scrutiny short of a holding of
a per se violation. Thus, the problem posed by the belief-action test and the deliberate-
inadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger
Court, the rationale in Sherbert continued to be applied. In Thomas v. Review
Board[177] and Hobbie v. Unemployment Appeals Division,[178] for example, the Court
reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an employee
who resigned or was discharged due to unwillingness to depart from religious practices
and beliefs that conflicted with job requirements.But not every governmental refusal to
allow an exemption from a regulation which burdens a sincerely held religious belief has
been invalidated, even though strict or heightened scrutiny is applied. In United States
v. Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas, upheld the
federal governments refusal to exempt Amish employers who requested for exemption
from paying social security taxes on wages on the ground of religious beliefs. The Court
held that (b)ecause the broad public interest in maintaining a sound tax system is of such
a high order, religious belief in conflict with the payment of taxes affords no basis for
resisting the tax.[180] It reasoned that unlike in Sherbert, an exemption would significantly
impair governments achievement of its objective - the fiscal vitality of the social security
system; mandatory participation is indispensable to attain this objective. The Court noted
that if an exemption were made, it would be hard to justify not allowing a similar exemption
from general federal taxes where the taxpayer argues that his religious beliefs require
him to reduce or eliminate his payments so that he will not contribute to the governments
war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased the
degree of protection afforded to religiously motivated conduct. While not affording
absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of
the Court often disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free
exercise of religion.[181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where
the Court upheld the religious practice of the Old Order Amish faith over the states
compulsory high school attendance law. The Amish parents in this case did not permit
secular education of their children beyond the eighth grade. Chief Justice Burger, writing
for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a legitimate
religious belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of
free exercise of religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that activities of
individuals, even when religiously based, are often subject to regulation by the States
in the exercise of their undoubted power to promote the health, safety, and general
welfare, or the Federal government in the exercise of its delegated powers . . . But to
agree that religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct protected by the
Free Exercise Clause of the First Amendment and thus beyond the power of the
State to control, even under regulations of general applicability. . . .This case,
therefore, does not become easier because respondents were convicted for their
actions in refusing to send their children to the public high school; in this context
belief and action cannot be neatly confined in logic-tight compartments. . . [183]

The onset of the 1990s, however, saw a major setback in the protection afforded
by the Free Exercise Clause. In Employment Division, Oregon Department of
Human Resources v. Smith,[184] the sharply
divided Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope of protection
of religious freedom afforded by the First Amendment. In this case, the well-established
practice of the Native American Church, a sect outside the Judeo-Christian mainstream
of American religion, came in conflict with the states interest in prohibiting the use of illicit
drugs. Oregons controlled substances statute made the possession of peyote a criminal
offense. Two members of the church, Smith and Black, worked as drug rehabilitation
counselors for a private social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental
ceremony practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as job-related misconduct. They
applied for unemployment compensation, but the Oregon Employment Appeals Board
denied their application as they were discharged for job-related misconduct. Justice
Scalia, writing for the majority, ruled that if prohibiting the exercise of religion . . . is .
. . merely the incidental effect of a generally applicable and otherwise valid law, the
First Amendment has not been offended. In other words, the Free Exercise Clause
would be offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in effect,
equated Oregons drug prohibition law with the anti-polygamy statute in Reynolds. The
relevant portion of the majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test
except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally
applicable criminal law. . .

We conclude today that the sounder approach, and the approach in accord with
the vast majority of our precedents, is to hold the test inapplicable to such
challenges. The governments ability to enforce generally applicable prohibitions of
socially harmful conduct, like its ability to carry out other aspects of public policy,
cannot depend on measuring the effects of a governmental action on a religious
objectors spiritual development. . . .To make an individuals obligation to obey such
a law contingent upon the laws coincidence with his religious beliefs except where
the States interest is compelling - permitting him, by virtue of his beliefs, to
become a law unto himself, . . . - contradicts both constitutional tradition and
common sense.

Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection
of the compelling governmental interest test was the most controversial part of the
decision.Although she concurred in the result that the Free Exercise Clause had not been
offended, she sharply criticized the majority opinion as a dramatic departure from well-
settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations
fundamental commitment to religious liberty. This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from the Courts
decision. Justice OConnor asserted that (t)he compelling state interest test
effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will
not permit encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest of the highest order. Justice
Blackmun registered a separate dissenting opinion, joined by Justices Brennan and
Marshall. He charged the majority with mischaracterizing precedents and overturning. . .
settled law concerning the Religion Clauses of our Constitution. He pointed out that the
Native American Church restricted and supervised the sacramental use of peyote. Thus,
the state had no significant health or safety justification for regulating the sacramental
drug use.He also observed that Oregon had not attempted to prosecute Smith or Black,
or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion,
he said that Oregons interest in enforcing its drug laws against religious use of peyote
(was) not sufficiently compelling to outweigh respondents right to the free exercise of their
religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts
standard in Smith virtually eliminated the requirement that the government justify with a
compelling state interest the burdens on religious exercise imposed by laws neutral
toward religion. The Smith doctrine is highly unsatisfactory in several respects and has
been criticized as exhibiting a shallow understanding of free exercise
jurisprudence.[185] First, the First amendment was intended to protect minority religions
from the tyranny of the religious and political majority. A deliberate regulatory interference
with minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of the religious
and political majority is no less an interference with the minoritys religious freedom. If the
regulation had instead restricted the majoritys religious practice, the majoritarian
legislative process would in all probability have modified or rejected the regulation. Thus,
the imposition of the political majoritys non-religious objectives at the expense of the
minoritys religious interests implements the majoritys religious viewpoint at the expense
of the minoritys. Second, government impairment of religious liberty would most often be
of the inadvertent kind as in Smith considering the political culture where direct and
deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free
Exercise Clause could not afford protection to inadvertent interference, it would be left
almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common
sense. The state should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are alternative approaches for
the state to effectively pursue its objective without serious inadvertent impact on
religion.[186]
Thus, the Smith decision has been criticized not only for increasing the power of the
state over religion but as discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,[187] contrary to the original
theory of the First Amendment.[188] Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions and Smith virtually
wiped out their judicial recourse for exemption.[189] Thus, the Smith decision elicited much
negative public reaction especially from the religious community, and commentaries
insisted that the Court was allowing the Free Exercise Clause to disappear.[190] So much
was the uproar that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from
substantially burdening a persons free exercise of religion, even if such burden resulted
from a generally applicable rule, unless the government could demonstrate a compelling
state interest and the rule constituted the least restrictive means of furthering that
interest.[191] RFRA, in effect, sought to overturn the substance of the Smith ruling and
restore the status quo prior to Smith. Three years after the RFRA was enacted, however,
the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v.
Flores.[192] The Court ruled that RFRA contradicts vital principles necessary to maintain
separation of powers and the federal balance. It emphasized the primacy of its role as
interpreter of the Constitution and unequivocally rejected, on broad institutional grounds,
a direct congressional challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah[193] which was ruled consistent with the Smith doctrine. This case involved animal
sacrifice of the Santeria, a blend of Roman Catholicism and West African religions
brought to the Carribean by East African slaves. An ordinance made it a crime to
unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food consumption. The ordinance came as a
response to the local concern over the sacrificial practices of the Santeria. Justice
Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was
not a generally applicable criminal prohibition, but instead singled out practitioners of the
Santeria in that it forbade animal slaughter only insofar as it took place within the context
of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are highly
protected but subject to restraints applicable to non-religious speech, and unconventional
religious practice receives less protection; nevertheless conduct, even if its violates a law,
could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause

The Courts first encounter with the Establishment Clause was in the 1947 case
of Everson v. Board of Education.[195] Prior cases had made passing reference to the
Establishment Clause[196] and raised establishment questions but were decided on other
grounds.[197] It was in the Everson case that the U.S. Supreme Court adopted Jeffersons
metaphor of a wall of separation between church and state as encapsulating the meaning
of the Establishment Clause. The often and loosely used phrase separation of church and
state does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when
the Court in the 1878 case of Reynolds v. United States[198] quoted Jeffersons famous
letter of 1802 to the Danbury Baptist Association in narrating the history of the religion
clauses, viz:

Believing with you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions, I
contemplate with sovereign reverence that act of the whole American people which
declared that their Legislature should make no law respecting an establishment of
religion or prohibiting the free exercise thereof, thus building a wall of separation
between Church and State. (emphasis supplied)
[199]

Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in cases
involving education, notably state aid to private religious schools and prayer in public
schools.[201] In Everson v. Board of Education, for example, the issue was whether a
New Jersey local school board could reimburse parents for expenses incurred in
transporting their children to and from Catholic schools. The reimbursement was part of
a general program under which all parents of children in public schools and nonprofit
private schools, regardless of religion, were entitled to reimbursement for transportation
costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was merely
furthering the states legitimate interest in getting children regardless of their religion,
safely and expeditiously to and from accredited schools. The Court, after narrating the
history of the First Amendment in Virginia, interpreted the Establishment Clause, viz:

The establishment of religion clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one religion over
another. Neither can force nor influence a person to go to or remain away from
church against his will or force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect a wall of separation
between Church and State. [202]

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must be
kept high and impregnable. We could not approve the slightest breach. New Jersey
has not breached it here.[203]

By 1971, the Court integrated the different elements of the Courts Establishment
Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged
test in Lemon v. Kurtzman[204] in determining the constitutionality of policies challenged
under the Establishment Clause. This case involved a Pennsylvania statutory program
providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island statute providing salary
supplements to teachers in parochial schools. The Lemon test requires a challenged
policy to meet the following criteria to pass scrutiny under the Establishment
Clause. First, the statute must have a secular legislative purpose; second, its
primary or principal effect must be one that neither advances nor inhibits religion
(Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923
[1968]); finally, the statute must not foster an excessive entanglement with religion.
(Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970]) (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania
statutory program and Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the Establishment Clause
are the school prayer decisions. Few decisions of the modern Supreme Court have been
criticized more intensely than the school prayer decisions of the early 1960s. [206] In the
1962 case of Engel v. Vitale,[207] the Court invalidated a New York Board of Regents policy
that established the voluntary recitation of a brief generic prayer by children in the public
schools at the start of each school day. The majority opinion written by Justice Black
stated that in this country it is no part of the business of government to compose official
prayers for any group of the American people to recite as part of a religious program
carried on by government. In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons that
caused many of the early colonists to leave England and seek religious freedom in
America. The Court called to mind that the first and most immediate purpose of the
Establishment Clause rested on the belief that a union of government and religion tends
to destroy government and to degrade religion. The following year, the Engel
decision was reinforced in Abington School District v. Schempp[208] and Murray v.
Curlett[209] where the Court struck down the practice of Bible reading and the recitation of
the Lords prayer in the Pennsylvania and Maryland schools. The Court held that to
withstand the strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits religion. It
reiterated, viz:

The wholesome neutrality of which this Courts cases speak thus stems from a
recognition of the teachings of history that powerful sects or groups might bring about
a fusion of governmental and religious functions or a concert or dependency of one
upon the other to the end that official support of the State of Federal Government
would be placed behind the tenets of one or of all orthodoxies. This the Establishment
Clause prohibits. And a further reason for neutrality is found in the Free Exercise
Clause, which recognizes the value of religious training, teaching and observance and,
more particularly, the right of every person to freely choose his own course with
reference thereto, free of any compulsion from the state. [210]

The school prayer decisions drew furious reactions. Religious leaders and conservative
members of Congress and resolutions passed by several state legislatures condemned
these decisions.[211] On several occasions, constitutional amendments have been
introduced in Congress to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case of Wallace v.
Jaffree[212] where the Court struck down an Alabama law that required public school
students to observe a moment of silence for the purpose of meditation or voluntary prayer
at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the
Establishment Clause. Optional religious instruction within public school premises and
instructional time were declared offensive of the Establishment Clause in the 1948 case
of McCollum v. Board of Education,[213] decided just a year after the seminal Everson
case. In this case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer classes in
religious instruction to public school students in grades four to nine. Religion classes were
attended by pupils whose parents signed printed cards requesting that their children be
permitted to attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty
minutes during regular class hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school authorities but they were
subject to the approval and supervision of the superintendent of schools.Students who
did not choose to take religious instruction were required to leave their classrooms and
go to some other place in the school building for their secular studies while those who
were released from their secular study for religious instruction were required to attend the
religious classes. The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school authorities and the religious
council in promoting religious education amounted to a prohibited use of tax-established
and tax-supported public school system to aid religious groups spread their faith. The
Court rejected the claim that the Establishment Clause only prohibited government
preference of one religion over another and not an impartial governmental assistance of
all religions. In Zorach v. Clauson,[214] however, the Court upheld released time programs
allowing students in public schools to leave campus upon parental permission to attend
religious services while other students attended study hall. Justice Douglas, the writer of
the opinion, stressed that (t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State. The Court
distinguished Zorach from McCollum, viz:

In the McCollum case the classrooms were used for religious instruction and the force
of the public school was used to promote that instruction. . . We follow the McCollum
case. But we cannot expand it to cover the present released time program unless
separation of Church and State means that public institutions can make no adjustments
of their schedules to accommodate the religious needs of the people. We cannot read
into the Bill of Rights such a philosophy of hostility to religion.[215]

In the area of government displays or affirmations of belief, the Court has given
leeway to religious beliefs and practices which have acquired a secular meaning and have
become deeply entrenched in history. For instance, in McGowan v. Maryland,[216] the
Court upheld laws that prohibited certain businesses from operating on Sunday despite
the obvious religious underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this day of rest happened to
be the day of worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to have special
significance as a rest day in this country. People of all religions and people with no
religion regard Sunday as a time for family activity, for visiting friends and relatives,
for later sleeping, for passive and active entertainments, for dining out, and the like.[217]

In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas
policy of beginning legislative sessions with prayers offered by a Protestant chaplain
retained at the taxpayers expense. The majority opinion did not rely on the Lemon test
and instead drew heavily from history and the need for accommodation of popular
religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be
no doubt that the practice of opening legislative sessions with prayer has become the
fabric of our society. To invoke Divine guidance on a public body entrusted with
making the laws is not, in these circumstances, an establishment of religion or a step
toward establishment; it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. As Justice Douglas observed, (w)e are a
religious people whose institutions presuppose a Supreme Being. (Zorach c.
Clauson, 343 US 306, 313 [1952]) (emphasis supplied)
[219]

Some view the Marsh ruling as a mere aberration as the Court would inevitably be
embarrassed if it were to attempt to strike down a practice that occurs in nearly every
legislature in the United States, including the U.S. Congress.[220] That Marsh was not an
aberration is suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4
decision, the majority opinion hardly employed the Lemon test and again relied on
history and the fact that the creche had become a neutral harbinger of the holiday
season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By
tradition, church and charitable institutions have been exempt from local property taxes
and their income exempt from federal and state income taxes. In the 1970 case of Walz
v. Tax Commission,[222] the New York City Tax Commissions grant of property tax
exemptions to churches as allowed by state law was challenged by Walz on the theory
that this required him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as
such; rather, it has granted exemptions to all houses of religious worship within a
broad class of property owned by non-profit, quasi-public corporations . . . The State
has an affirmative policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the
public interest. [223]

The Court added that the exemption was not establishing religion but sparing the exercise
of religion from the burden of property taxation levied on private profit institutions [224] and
preventing excessive entanglement between state and religion. At the same time, the
Court acknowledged the long-standing practice of religious tax exemption and the Courts
traditional deference to legislative bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life, beginning
with pre-Revolutionary colonial times, than for the government to exercise . . .
this kind of benevolent neutrality toward churches and religious exercise
generally so long as none was favored over others and none suffered
interference. (emphasis supplied)
[225]
 C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the
religious clauses area, are but a small fraction of the hundreds of religion clauses cases
that the U.S. Supreme Court has passed upon. Court rulings contrary to or making
nuances of the above cases may be cited. Professor McConnell poignantly recognizes
this, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead

the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the schools for children
to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
unconstitutional for a state to require employers to accommodate their employees
work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472
US 703, 709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency between
work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4
[1963]). It is constitutional for the government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick,
487 US 589, 611 [1988]), but not to teach them science or history (Lemon v.
Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to
provide religious school pupils with books (Board of Education v. Allen, 392 US 236,
238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with
bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]),
but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-
55 [1977]); with cash to pay for state-mandated standardized tests (Committee for
Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to
pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756,
774-80 [1973]). It is a mess. [226]

But the purpose of the overview is not to review the entirety of the U.S. religion clause
jurisprudence nor to extract the prevailing case law regarding particular religious beliefs
or conduct colliding with particular government regulations. Rather, the cases discussed
above suffice to show that, as legal scholars observe, this area of jurisprudence
has demonstrated two main standards used by the Court in deciding religion clause
cases: separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. The weight
of current authority, judicial and in terms of sheer volume, appears to lie with the
separationists, strict or tame.[227] But the accommodationists have also attracted a number
of influential scholars and jurists.[228] The two standards producing two streams of
jurisprudence branch out respectively from the history of the First Amendment in England
and the American colonies and climaxing in Virginia as narrated in this opinion and
officially acknowledged by the Court in Everson, and from American societal life which
reveres religion and practices age-old religious traditions. Stated otherwise, separation -
strict or tame - protects the principle of church-state separation with a rigid reading of the
principle while benevolent neutrality protects religious realities, tradition and
established practice with a flexible reading of the principle. [229] The latter also appeals to
history in support of its position, viz:

The opposing school of thought argues that the First Congress intended to allow
government support of religion, at least as long as that support did not
discriminate in favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for example, was on the
congressional committee that appointed a chaplain, he declared several national days
of prayer and fasting during his presidency, and he sponsored Jeffersons bill for
punishing Sabbath breakers; moreover, while president, Jefferson allowed federal
support of religious missions to the Indians. . . And so, concludes one recent book,
there is no support in the Congressional records that either the First Congress, which
framed the First Amendment, or its principal author and sponsor, James Madison,
intended that Amendment to create a state of complete independence between religion
and government. In fact, the evidence in the public documents goes the other
way. (emphasis supplied)
[230]

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that
gives room for accommodation, less than twenty-four hours after Congress adopted the
First Amendments prohibition on laws respecting an establishment of religion, Congress
decided to express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one
on the ground that the move was a mimicking of European customs, where they made a
mere mockery of thanksgivings, the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history
was acknowledged and the motion was passed without further recorded
discussion.[231] Thus, accommodationists also go back to the framers to ascertain the
meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary
to the claim of separationists that rationalism pervaded America in the late 19 thcentury
and that America was less specifically Christian during those years than at any other time
before or since,[232] accommodationaists claim that American citizens at the time of the
Constitutions origins were a remarkably religious people in particularly Christian terms. [233]
The two streams of jurisprudence - separationist or accommodationist - are
anchored on a different reading of the wall of separation. The strict
separtionist view holds that Jefferson meant the wall of separation to protect the state
from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century,
characterized by the rationalism and anticlericalism of that philosophic bent. [234] He has
often been regarded as espousing Deism or the rationalistic belief in a natural religion
and natural law divorced from its medieval connection with divine law, and instead
adhering to a secular belief in a universal harmony.[235] Thus, according to this Jeffersonian
view, the Establishment Clause being meant to protect the state from the church, the
states hostility towards religion allows no interaction between the two. [236] In fact, when
Jefferson became President, he refused to proclaim fast or thanksgiving days on the
ground that these are religious exercises and the Constitution prohibited the government
from intermeddling with religion.[237] This approach erects an absolute barrier to formal
interdependence of religion and state. 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.[238] Only the complete separation of
religion from politics would eliminate the formal influence of religious institutions and
provide for a free choice among political views thus a strict wall of separation is
necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in
history and contemporary practice that enormous amounts of aid, both direct and indirect,
flow to religion from government in return for huge amounts of mostly indirect aid from
religion. Thus, strict separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to. [240]
A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court, showing the Courts
tendency to press relentlessly towards a more secular society.[241] It finds basis in
the Everson case where the Court declared that Jeffersons wall of separation
encapsulated the meaning of the First Amendment but at the same time held that the First
Amendment requires the state to be neutral in its relations with groups of religious
believers and non-believers; it does not require the state to be their adversary.State
power is no more to be used so as to handicap religions than it is to favor
them. (emphasis supplied)[242] While the strict neutrality approach is not hostile to religion,
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. It does not
permit, much less require, accommodation of secular programs to religious
belief.[243] Professor Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first
amendment is that the freedom and separation clauses should be read as a single
precept that government cannot utilize religion as a standard for action or inaction
because these clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden. [244]

The Court has repeatedly declared that religious freedom means government neutrality
in religious matters and the Court has also repeatedly interpreted this policy of neutrality
to prohibit government from acting except for secular purposes and in ways that have
primarily secular effects.[245]
Prayer in public schools is an area where the Court has applied strict neutrality and
refused to allow any form of prayer, spoken or silent, in the public schools as
in Engel and Schempp.[246] The McCollum case prohibiting optional religious instruction
within public school premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the government action
as they were based not on a secular but on a religious purpose. Strict neutrality was also
used in Reynolds and Smith which both held that if government acts in pursuit of a
generally applicable law with a secular purpose that merely incidentally burdens religious
exercise, the First Amendment has not been offended.However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de facto void
religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in
his concurring opinion in Schempp, strict neutrality could lead to a brooding and
pervasive devotion to the secular and a passive, or even active, hostility to the religious
which is prohibited by the Constitution.[247] Professor Laurence Tribe commented in his
authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say, of philosophy or
science. The strict neutrality approach all but erases this distinction. Thus it is not
surprising that the Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications. [248]

The separationist approach, whether strict or tame, is caught in a dilemma because

while the Jeffersonian wall of separation captures the spirit of the American ideal of
church-state separation, in real life church and state are not and cannot be totally
separate.[249] 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.[250]
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is buttressed
by a different view of the wall of separation associated with Williams, founder of the Rhode
Island colony. In Mark DeWolfe Howes classic, The Garden and the Wilderness, he
asserts that to the extent the Founders had a wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the state from the church; instead, the wall is
meant to protect the church from the state,[251] i.e., the garden of the church must be walled
in for its own protection from the wilderness of the world[252] with its potential for corrupting
those values so necessary to religious commitment.[253] Howe called this the theological or
evangelical rationale for church-state separation while the wall espoused by enlightened
statesmen such as Jefferson and Madison, was a political rationale seeking to protect
politics from intrusions by the church.[254] But it has been asserted that this contrast
between the Williams and Jeffersonian positions is more accurately described as a
difference in kinds or styles of religious thinking, not as a conflict between religious and
secular (political); the religious style was biblical and evangelical in character while the
secular style was grounded in natural religion, more generic and philosophical in its
religious orientation.[255]
The Williams wall is, however, breached for the church is in the state and so the
remaining purpose of the wall is to safeguard religious liberty. Williams view would
therefore allow for interaction between church and state, but is strict with regard to state
action which would threaten the integrity of religious commitment.[256] His conception of
separation is not total such that it provides basis for certain interactions between church
and state dictated by apparent necessity or practicality.[257] This theological view of
separation is found in Williams writings, viz:

. . . when they have opened a gap in the hedge or wall of separation between the
garden of the church and the wilderness of the world, God hath ever broke down the
wall itself, removed the candlestick, and made his garden a wilderness, as this
day. And that therefore if He will eer please to restore His garden and paradise again,
it must of necessity be walled in peculiarly unto Himself from the world. . . [258]

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all that has been said
by the Court is this: that we will not tolerate either governmentally established
religion or governmental interference with religion. Short of those expressly
proscribed governmental acts there is room for play in the joints productive of a
benevolent neutrality which will permit religious exercise to exist without
sponsorship and without interference. (emphasis supplied)
[259]

The Zorach case expressed the doctrine of accommodation,[260] viz:

The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter. Otherwise,
the state and religion would be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property taxes. Municipalities
would not be permitted to render police or fire protection to religious
groups. Policemen who helped parishioners into their places of worship would violate
the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations making Thanksgiving Day a
holiday; so help me God in our courtroom oaths- these and all other references to the
Almighty that run through our laws, our public rituals, our ceremonies would be
flouting the First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United States and
this Honorable Court.

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We

guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the
schedule of public events, it follows the best of our traditions. For it then respects
the religious nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups.
. . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen
their effective scope of religious influence. (emphases supplied)
[261]

Benevolent neutrality is congruent with the sociological proposition that religion serves
a function essential to the survival of society itself, thus there is no human society without
one or more ways of performing the essential function of religion. Although for some
individuals there may be no felt need for religion and thus it is optional or even
dispensable, for society it is not, which is why there is no human society without one or
more ways of performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate religion(s) in their
ideology.[262] As one sociologist wrote:

It is widely held by students of society that there are certain functional prerequisites
without which society would not continue to exist. At first glance, this seems to be
obvious - scarcely more than to say that an automobile could not exist, as a going
system, without a carburetor. . . Most writers list religion among the functional
prerequisites.[263]

Another noted sociologist, Talcott Parsons, wrote: There is no known human society
without something which modern social scientists would classify as a religionReligion is
as much a human universal as language.[264]
Benevolent neutrality thus recognizes that religion plays an important role in the
public life of the United States as shown by many traditional government practices which,
to strict neutrality, pose Establishment Clause questions. Among these are the
inscription of In God We Trust on American currency, the recognition of America as one
nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-
honored practice of opening oral argument with the invocation God save the United States
and this honorable Court, and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination to lead representatives
in prayer.[265] These practices clearly show the preference for one theological viewpoint -
the existence of and potential for intervention by a god - over the contrary theological
viewpoint of atheism. Church and government agencies also cooperate in the building of
low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral
dimension.[266] The persistence of these de facto establishments are in large part
explained by the fact that throughout history, the evangelical theory of separation, i.e.,
Williams wall, has demanded respect for these de facto establishments.[267] But the
separationists have a different explanation. To characterize these as de
jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme
Court, the many dissenting and concurring opinions explain some of these practices as de
minimis instances of government endorsement or as historic governmental practices that
have largely lost their religious significance or at least have proven not to lead the
government into further involvement with religion.[268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion specifically
into account not to promote the governments 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 persons or
institutions religion. As Justice Brennan explained, the government [may] take religion
into accountto exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish.[269] (emphasis supplied) Accommodation is forbearance
and not alliance. it does not reflect agreement with the minority, but respect for the
conflict between the temporal and spiritual authority in which the minority finds itself. [270]
Accommodation is distinguished from strict neutrality in that the latter holds
that government should base public policy solely on secular considerations,
without regard to the religious consequences of its actions. The debate between
accommodation and strict neutrality is at base a question of means: Is the freedom of
religion best achieved when the government is conscious of the effects of its action on
the various religious practices of its people, and seeks to minimize interferences with
those practices? Or is it best advanced through a policy of religious blindness - keeping
government aloof from religious practices and issues? An accommodationist holds that it
is good public policy, and sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with religious freedom. On the other
hand, the strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy even at the
cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take
the accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the First
Amendment. The religion clauses contain two parallel provisions, both specifically
directed at religion. The government may not establish religion and neither may
government prohibit it. Taken together, the religion clauses can be read most plausibly
as warding off two equal and opposite threats to religious freedom - government action
that promotes the (political) majoritys favored brand of religion and government action
that impedes religious practices not favored by the majority. The substantive endin view
is the preservation of the autonomy of religious life and not just the formal process
value of ensuring that government does not act on the basis of religious bias. On the
other hand, strict neutrality interprets the religion clauses as allowing government to do
whatever it desires to or for religion, as long as it does the same to or for comparable
secular entities. Thus, for example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion. Paradoxically, this view
would make the religion clauses violate the religion clauses, so to speak, since the religion
clauses single out religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that freedom to carry out
ones duties to a Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Although inalienable, it is necessarily limited by the rights of others,
including the public right of peace and good order. Nevertheless it is a substantive right
and not merely a privilege against discriminatory legislation. The accomplishment of the
purpose of the First Amendment requires more than the religion blindness of strict
neutrality. With the pervasiveness of government regulation, conflicts with religious
practices become frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government must make special
provisions to preserve a degree of independence for religious entities for them to carry
out their religious missions according to their religious beliefs. Otherwise, religion will
become just like other secular entities subject to pervasive regulation by majoritarian
institutions. Third, the accommodationist interpretation is particularly necessary to
protect adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility to the
minority. In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter because some
laws are so necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could explain a
refusal to make exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury
to the religious consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations extends this
treatment to religious faiths that are less able to protect themselves in the political
arena. Fourth, the accommodationist position is practical as it is a commonsensical way
to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious
freedom. Aside from laws against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment anti-
discrimination laws can conflict with the Roman Catholic male priesthood, among
others. Exemptions from such laws are easy to craft and administer and contribute much
to promoting religious freedom at little cost to public policy. Without exemptions,
legislature would be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with legislation it
considers beneficial to society as a whole. Exemption seems manifestly more
reasonable than either of the alternative: no exemption or no law.[272]
 Benevolent neutrality gives room for different kinds of accommodation: those
which are constitutionally compelled, i.e., required by the Free Exercise Clause; and
those which are discretionary or legislative, i.e., and those not required by the Free
Exercise Clause but nonetheless permitted by the Establishment Clause. [273] Some
Justices of the Supreme Court have also used the term accommodation to describe
government actions that acknowledge or express prevailing religious sentiments of the
community such as display of a religious symbol on public property or the delivery of a
prayer at public ceremonial events.[274] Stated otherwise, using benevolent neutrality as
a standard could result to three situations of accommodation:those
where accommodation is required, those where it is permissible, and those where it
is prohibited. In the first situation, accommodation is required to preserve free exercise
protections and not unconstitutionally infringe on religious liberty or create penalties for
religious freedom. Contrary to the Smith declaration that free exercise exemptions are
intentional government advancement, these exemptions merely relieve the prohibition on
the free exercise thus allowing the burdened religious adherent to be left alone. The state
must create exceptions to laws of general applicability when these laws threaten religious
convictions or practices in the absence of a compelling state interest.[275] By allowing such
exemptions, the Free Exercise Clause does not give believers the right or privilege to
choose for themselves to override socially-prescribed decision; it allows them to obey
spiritual rather than temporal authority[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights
than duties; more precisely, it is a matter of rights derived from duties. To deny a person
or a community the right to act upon such a duty can be justified only by appeal to a yet
more compelling duty. Of course, those denied will usually not find the reason for the
denial compelling. Because they may turn out to be right about the duty in question, and
because, even if they are wrong, religion bears witness to that which transcends the
political order, such denials should be rare and painfully reluctant.[277]
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their children in
high school as required by law. The Sherbert case is another example where the Court
held that the state unemployment compensation plan must accommodate the religious
convictions of Sherbert.[278]In these cases of burdensome effect, the modern approach of
the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the
Court requires the state to demonstrate that the regulation which burdens the religious
exercise pursues a particularly important or compelling government goal through the least
restrictive means. If the states objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given.[279] This approach of the Court on burdensome effect
was only applied since the 1960s. Prior to this time, the Court took the separationist view
that as long as the state was acting in pursuit of non-religious ends and regulating conduct
rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such
as in Reynolds.[280] In the second situation where accommodation is permissible, the state
may, but is not required to, accommodate religious interests. The Walz case illustrates
this situation where the Court upheld the constitutionality of tax exemption given by New
York to church properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that (t)he limits of permissible state accommodation to
religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause.[281] The Court held that New York could have an interest in encouraging
religious values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public schools
and Marsh allowing payment of legislative chaplains from public funds. Finally, in the
situation where accommodation is prohibited, establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions buttressed by
the Free Exercise Clause does not mean that all claims for free exercise exemptions are
valid.[282] An example where accommodation was prohibited is McCollum where the Court
ruled against optional religious instruction in the public school premises. [283] In effect, the
last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic
framework:

If the plaintiff can show that a law or government practice inhibits the free exercise of
his religious beliefs, the burden shifts to the government to demonstrate that the law
or practice is necessary to the accomplishment of some important (or compelling)
secular objective and that it is the least restrictive means of achieving that objective. If
the plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimants
beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious denomination. Only
beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice. [284]

In other words, a three-step process (also referred to as the two-step balancing

process supra when the second and third steps are combined) as in Sherbert is
followed in weighing the states interest and religious freedom when these collide. Three
questions are answered in this process. First, (h)as the statute or government action
created a burden on the free exercise of religion? The courts often look into
the sincerity of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity,
the U.S. Supreme Court has considered historical evidence as in Wisconsin where the
Amish people had held a long-standing objection to enrolling their children in ninth and
tenth grades in public high schools. In another case, Dobkin v. District of
Columbia,[285] the Court denied the claim of a party who refused to appear in court on
Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted
business on Saturday. Although it is true that the Court might erroneously deny some
claims because of a misjudgment of sincerity, this is not as argument to reject all claims
by not allowing accommodation as a rule. There might be injury to the particular claimant
or to his religious community, but for the most part, the injustice is done only in the
particular case.[286] Aside from the sincerity, the court may look into the centrality of those
beliefs, assessing them not on an objective basis but in terms of the opinion and belief of
the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish
peoples convictions against becoming involved in public high schools were central to their
way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against
Saturday work was a cardinal principle.[287] Professor Lupu puts to task the person claiming
exemption, viz:

On the claimants side, the meaning and significance of the relevant religious practice
must be demonstrated. Religious command should outweigh custom, individual
conscience should count for more than personal convenience, and theological
principle should be of greater significance than institutional ease. Sincerity matters,
(footnote omitted) and longevity of practice - both by the individual and within the
individuals religious tradition - reinforces sincerity. Most importantly, the law of free
exercise must be inclusive and expansive, recognizing non-Christian religions -
eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of fundamentalist creed. [288]

Second, the court asks: (i)s there a sufficiently compelling state interest to justify this
infringement of religious liberty? In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must
do more than assert the objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined if exemptions are
granted.[289] The person claiming religious freedom, on the other hand, will endeavor to
show that the interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves balancing,
i.e., weighing the interest of the state against religious liberty to determine which is more
compelling under the particular set of facts. The greater the states interests, the more
central the religious belief would have to be to overcome it. In assessing the state interest,
the court will have to determine the importance of the secular interest and the extent to
which that interest will be impaired by an exemption for the religious practice. Should the
court find the interest truly compelling, there will be no requirement that the state diminish
the effectiveness of its regulation by granting the exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes used the
least intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state? [291] The analysis requires the state
to show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties. In Cantwell, for example, the Court invalidated
the license requirement for the door-to-door solicitation as it was a forbidden burden on
religious liberty, noting that less drastic means of insuring peace and tranquility
existed. As a whole, in carrying out the compelling state interest test, the Court should
give careful attention to context, both religious and regulatory, to achieve refined
judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing
values of secular government and religious freedom create tensions that make
constitutional law on the subject of religious liberty unsettled, mirroring the evolving views
of a dynamic society.[293]

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism covered the
archipelago. There was a union of church and state and Catholicism was the state religion
under the Spanish Constitution of 1876. Civil authorities exercised religious functions
and the friars exercised civil powers.[294] Catholics alone enjoyed the right of engaging in
public ceremonies of worship.[295] Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in our country
under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of
1884 which was in effect in the Philippines. Some of the offenses in chapter six of the
Penal Code entitled Crimes against Religion and Worship referred to crimes against the
state religion.[296] The coming of the Americans to our country, however, changed this
state-church scheme for with the advent of this regime, the unique American experiment
of separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States
and Spain on December 10, 1898, the American guarantee of religious freedom had been
extended to the Philippines. The Treaty provided that the inhabitants of the territories over
which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise
of religion.[297] Even the Filipinos themselves guaranteed religious freedom a month later
or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine
Republic under General Emilio Aguinaldo. It provided that the State recognizes the liberty
and equality of all religion (de todos los cultos) in the same manner as the separation of
the Church and State. But the Malolos Constitution and government was short-lived as
the Americans took over the reigns of government.[298]
With the Philippines under the American regime, President McKinley
issued Instructions to the Second Philippine Commission, the body created to take over
the civil government in the Philippines in 1900. The Instructions guaranteed religious
freedom, viz:

That no law shall be made respecting the establishment of religion or prohibiting the
free exercise thereof, and that the free exercise and enjoyment of religious profession
and worship without discrimination or preference shall forever be allowed ... that no
form of religion and no minister of religion shall be forced upon the community or
upon any citizen of the Islands, that, on the other hand, no minister of religion shall be
interfered with or molested in following his calling. [299]
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation between State and
Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on freedom of
religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of
1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free

exercise thereof, and that free exercise and enjoyment of religious worship, without
discrimination or preference, shall forever be allowed.

In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the
complete separation of church and state, and the abolition of all special privileges and all
restrictions theretofor conferred or imposed upon any particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with a restriction
against using public money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion or prohibiting the

free exercise thereof, and that the free exercise and enjoyment of religious profession
and worship without discrimination or preference, shall forever be allowed; and no
religious test shall be required for the exercise of civil or political rights. No public
money or property shall ever be appropriated, applied, donated, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of

1934 which guaranteed independence to the Philippines and authorized the drafting of a
Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law prescribed that (a)bsolute
toleration of religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious belief or mode
of worship.[303]
The Constitutional Convention then began working on the 1935 Constitution. In their
proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights
acknowledged that (i)t was the Treaty of Paris of December 10, 1898, which first
introduced religious toleration in our country. President McKinleys Instructions to the
Second Philippine Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law.[304] In accordance with the Tydings-McDuffie
Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:

Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting

the free exercise thereof, and 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.

This provision, borrowed from the Jones Law, was readily approved by the
Convention.[305] In his speech as Chairman of the Committee on Bill of Rights, Delegate
Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were
avoided whenever possible because the principles must remain couched in a language
expressive of their historical background, nature, extent and limitations as construed and
interpreted by the great statesmen and jurists that vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution contained an almost
identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:

Sec. 8. 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.

This time, however, the General Provisions in Article XV added in Section 15 that (t)he
separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious
clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III,
Section 5.[307]Likewise, the provision on separation of church and state was included
verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to
adopt the historical background, nature, extent and limitations of the First Amendment of
the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising
that nearly all the major Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and limitations of these clauses. However,
a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and benevolent
neutrality - the well-spring of Philippine jurisprudence on this subject is for the
most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we

begin with the definition of religion. Religion is derived from the Middle
English religioun, from Old French religion, from Latin religio, vaguely referring to a bond
between man and the gods.[308] This pre-Christian term for the cult and rituals of pagan
Rome was first Christianized in the Latin translation of the Bible. [309] While the U.S.
Supreme Court has had to take up the challenge of defining the parameters and contours
of religion to determine whether a non-theistic belief or act is covered by the religion
clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted
as theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310] involving the Establishment
Clause, defined religion as a profession of faith to an active power that binds and elevates
man to his Creator. Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,[311] a case involving the Free Exercise
clause. The latter also cited the American case of Davis in defining religion, viz: (i)t has
reference to ones views of his relations to His Creator and to the obligations they impose
of reverence to His being and character and obedience to His
Will. The Beason definition, however, has been expanded in U.S. jurisprudence to
include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits
any degree of compulsion or burden, whether direct or indirect, in the practice of ones
religion. The Free Exercise Clause principally guarantees voluntarism, although the
Establishment Clause also assures voluntarism by placing the burden of the
advancement of religious groups on their intrinsic merits and not on the support of the
state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The
early case of Gerona v. Secretary of Education[313] is instructive on the matter, viz:

The realm of belief and creed is infinite and limitless bounded only by ones
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when weighed
in the scales of orthodoxy or doctrinal standards. But between the freedom of belief
and the exercise of said belief, there is quite a stretch of road to travel.
[314]

The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated
in the American Bible Society case. In that case, plaintiff American Bible Society was a
foreign, non-stock, non-profit, religious missionary corporation which sold bibles and
gospel portions of the bible in the course of its ministry. The defendant City of Manila
required plaintiff to secure a mayors permit and a municipal license as ordinarily required
of those engaged in the business of general merchandise under the citys
ordinances. Plaintiff argued that this amounted to religious censorship and restrained the
free exercise and enjoyment of religious profession, to wit: the distribution and sale of
bibles and other religious literature to the people of the Philippines.
 After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any
restraint of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (Tanada and Fernando on
the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)

This was the Courts maiden unequivocal affirmation of the clear and present
danger rule in the religious freedom area, and in Philippine jurisprudence, for that
matter.[315] The case did not clearly show, however, whether the Court proceeded to apply
the test to the facts and issues of the case, i.e., it did not identify the secular value the
government regulation sought to protect, whether the religious speech posed a clear and
present danger to this or other secular value protected by government, or whether there
was danger but it could not be characterized as clear and present. It is one thing to apply
the test and find that there is no clear and present danger, and quite another not to apply
the test altogether.
Instead, the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of selling said
merchandise for profit. To add, the Court, citing Murdock v. Pennsylvania,[316] ruled that
applying the ordinance requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination
of religious beliefs as the power to tax the exercise of a privilege is the power to control
or suppress its enjoyment. Thus, in American Bible Society, the clear and present
danger rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also involving the
sale of religious books, the Court distinguished the American Bible Society case from
the facts and issues in Tolentino and did not apply the American Bible Society
ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held,
however, that the fixed amount of registration fee was not imposed for the exercise of a
privilege like a license tax which American Bible Society ruled was violative of religious
freedom. Rather, the registration fee was merely an administrative fee to defray part of
the cost of registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,[318] the Court also declared prefatorily that
the Free Exercise of Religion Clause does not prohibit imposing a generally applicable
sales and use tax on the sale of religious materials by a religious organization. In the
Courts resolution of the motion for reconsideration of the Tolentino decision, the Court
noted that the burden on religious freedom caused by the tax was just similar to any other
economic imposition that might make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,[319] this time involving conduct expressive of religious belief
colliding with a rule prescribed in accordance with law. In this case, petitioners were
members of the Jehovahs Witnesses. They challenged a Department Order issued by
the Secretary of Education implementing Republic Act No. 1265 which prescribed
compulsory flag ceremonies in all public schools. In violation of the Order, petitioners
children refused to salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking protection under the
Free Exercise Clause, petitioners claimed that their refusal was on account of their
religious belief that the Philippine flag is an image and saluting the same is contrary to
their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of

society and with the law, then the former must yield to the latter. The Government
steps in and either restrains said exercise or even prosecutes the one exercising
it. (emphasis supplied) [320]

The Court then proceeded to determine if the acts involved constituted a religious
ceremony in conflict with the beliefs of the petitioners with the following justification:

After all, the determination of whether a certain ritual is or is not a religious ceremony
must rest with the courts. It cannot be left to a religious group or sect, much less to a
follower of said group or sect; otherwise, there would be confusion and
misunderstanding for there might be as many interpretations and meaning to be given
to a certain ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and good faith, may
want to give to such ritual or ceremony. [321]

It was held that the flag was not an image, the flag salute was not a religious ceremony,
and there was nothing objectionable about the singing of the national anthem as it speaks
only of love of country, patriotism, liberty and the glory of suffering and dying for it. The
Court upheld the questioned Order and the expulsion of petitioners children, stressing
that:

Men may differ and do differ on religious beliefs and creeds, government policies, the
wisdom and legality of laws, even the correctness of judicial decisions and decrees;
but in the field of love of country, reverence for the flag, national unity and patriotism,
they can hardly afford to differ, for these are matters in which they are mutually and
vitally interested, for to them, they mean national existence and survival as a nation or
national extinction.[322]

In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette
case, viz:
The constitutional protection of religious freedom x x x 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. [323]

It stated in categorical terms, viz:

The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent authority. [324]

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is
incumbent upon the Court to determine whether a certain ritual is religious or not;
(2) religious freedom will not be upheld if it clashes with the established
institutions of society and with the law such that when a law of general applicability
(in this case the Department Order) incidentally burdens the exercise of ones
religion, ones right to religious freedom cannot justify exemption from compliance
with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope
Workers Union.[326] In this unanimously decided en banc case, Victoriano was a member
of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor
organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the
Elizalde Rope Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the application and coverage of a
closed shop agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned from the union
after Republic Act No. 3350 took effect. The union notified the company of Victorianos
resignation, which in turn notified Victoriano that unless he could make a satisfactory
arrangement with the union, the company would be constrained to dismiss him from the
service. Victoriano sought to enjoin the company and the union from dismissing him.The
court having granted the injunction, the union came to this Court on questions of law,
among which was whether Republic Act No. 3350 was unconstitutional for impairing the
obligation of contracts and for granting an exemption offensive of the Establishment
Clause. With respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and liberty
(Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of values. Contractual rights, therefore, must yield
to freedom of religion. It is only where unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest
extent necessary. (emphasis supplied)
[327]
As regards the Establishment Clause issue, the Court after citing the constitutional
provision on establishment and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by
law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones
chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. (footnote omitted). Any
legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose
and effect to advance the states secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L
ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449) (emphasis supplied)
[328]

Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from
pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect. It also cited Board of Education v. Allen,[330] which held
that in order to withstand the strictures of constitutional prohibition, a statute must have a
secular legislative purpose and a primary effect that neither advances nor inhibits
religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed
out, viz:

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be
refused work, or be dismissed from work, or be dispossessed of their right to work
and of being impeded to pursue a modest means of livelihood, by reason of union
security agreements. . . . The primary effects of the exemption from closed shop
agreements in favor of members of religious sects that prohibit their members from
affiliating with a labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain citizens
of a burden on their religious beliefs, and . . . eliminating to a certain extent economic
insecurity due to unemployment. [331]
 The Court stressed that (a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor unions, the
benefit upon the religious sects is merely incidental and indirect.[332] In enacting Republic
Act No. 3350, Congress merely relieved the exercise of religion by certain persons
of a burden imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded the issue of
exemption by citing Sherbert which laid down the rule that when general laws conflict
with scruples of conscience, exemptions ought to be granted unless some compelling
state interest intervenes. The Court then abruptly added that (i)n the instant case, We see
no compelling state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several tests in
determining when religious freedom may be validly limited. First, the Court mentioned
the test of immediate and grave danger to the security and welfare of the community and
infringement of religious freedom only to the smallest extent necessary to justify limitation
of religious freedom. Second, religious exercise may be indirectly burdened by a general
law which has for its purpose and effect the advancement of the states secular goals,
provided that there is no other means by which the state can accomplish this purpose
without imposing such burden. Third, the Court referred to the compelling state interest
test which grants exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose
of highlighting the importance of the protection of religious freedom as the secular
purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose
insofar as it relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts and issues of the
case. The third, the compelling state interest test was employed by the Court to determine
whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It
upheld the exemption, stating that there was no compelling state interest to strike it
down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the compelling state
interest test was not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption
from the provisions of the South Carolina Unemployment Compensation Act which
disqualified her from claiming unemployment benefits. It was the appellees, members of
the South Carolina Employment Commission, a government agency, who propounded
the state interest to justify overriding Sherberts claim of religious freedom. The U.S.
Supreme Court, considering Sherberts and the Commissions arguments, found that the
state interest was not sufficiently compelling to prevail over Sherberts free exercise
claim. This situation did not obtain in the Victoriano case where it was the government
itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow
Victorianos exercise of religion. Thus, the government could not argue against the
exemption on the basis of a compelling state interest as it would be arguing against itself;
while Victoriano would not seek exemption from the questioned law to allow the free
exercose of religion as the law in fact provides such an exemption. In sum,
although Victoriano involved a religious belief and conduct, it did not involve a free
exercise issue where the Free Exercise Clause is invoked to exempt him from the burden
imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinas,[334] Anucension v. National Labor Union, et
al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-administration
rallies. Petitioners were walking to St. Jude Church within the Malacanang security area
to pray for an end to violence when they were barred by the police. Invoking their
constitutional freedom of religious worship and locomotion, they came to the Court on a
petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The
Court was divided on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that they were using their
religious liberty to express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the second cannot
be.[337]

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or
choice of their religion, but only in the manner by which they had attempted to
translate the same to action. This curtailment is in accord with the pronouncement
of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)

The majority found that the restriction imposed upon petitioners was necessary to
maintain the smooth functioning of the executive branch of the government, which
petitioners mass action would certainly disrupt[338] and denied the petition. Thus, without
considering the tests mentioned in Victoriano, German went back to the Gerona rule
that religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent
jurisprudence would be cited as a test in religious freedom cases. His dissent stated in
relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the
landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us
in resolving the issues.

1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of
Rights. (footnote omitted) Freedom of worship, alongside with freedom of
expression and speech and peaceable assembly along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be
too strongly stressed that on the judiciary - even more so than on the other
departments - rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitously termed by Justice Holmes as the
sovereign prerogative of judgment. Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do
precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although
there may be subsequent punishment of any illegal acts committed during the exercise
of such basic rights. The sole justification for a prior restraint or limitation on the
exercise of these basic rights is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest, that the State has a
right (and duty) to prevent (Idem, at pp. 560-561). (emphasis supplied)
[339]

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees
dissent was taken involved the rights to free speech and assembly, and not the exercise
of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L.
Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful
march and rally from the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which
had overtones of petitioner German and his companions right to assemble and petition
the government for redress of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again
came before the Court in Ebralinag v. The Division Superintendent of Schools.[341] A
unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona,
this case involved several Jehovahs Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the grave and imminent danger test
laid down in Justice Teehankees dissent in German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified. (emphasis supplied)
[342]

The Court added, viz:

We are not persuaded that by exempting the Jehovahs Witnesses from saluting the
flag, singing the national anthem and reciting the patriotic pledge, this religious group
which admittedly comprises a small portion of the school population will shake up our
part of the globe and suddenly produce a nation untaught and uninculcated in and
unimbued with reverence for the flag, patriotism, love of country and admiration for
national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the
petitioners seek only is exemption from the flag ceremony, not exclusion from the
public schools where they may study the Constitution, the democratic way of life and
form of government, and learn not only the arts, sciences, Philippine history and
culture but also receive training for a vocation or profession and be taught the virtues
of patriotism, respect for human rights, appreciation of national heroes, the rights and
duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court has feared in
Gerona. Forcing a small religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs, will hardly be conducive
to love of country or respect for duly constituted authorities.
[343]

Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x-
assuming that such unity and loyalty can be attained through coercion- is not a goal
that is constitutionally obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L.
ed. 1042, 1046).[344]

Towards the end of the decision, the Court also cited the Victoriano case and its use of
the compelling state interest test in according exemption to the Jehovahs Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching
of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes. (Sherbert vs.
Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)

We hold that a similar exemption may be accorded to the Jehovahs Witnesses with
regard to the observance of the flag ceremony out of respect for their religious beliefs,
however bizarre those beliefs may seem to others. [345]

The Court annulled the orders expelling petitioners from school.

Thus, the grave and imminent danger test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones of the right
to free speech and assembly, was transported to Ebralinag which did not involve prior
restraint of religious worship, speech or assembly. Although, it might be observed that the
Court faintly implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to participate in the flag
ceremony is alien to the conscience of the present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship; the Court then stated in a footnote that the
flag salute, singing the national anthem and reciting the patriotic pledge are all forms of
utterances.[346]
The compelling state interest test was not fully applied by the Court in Ebralinag. In
the Solicitor Generals consolidated comment, one of the grounds cited to defend the
expulsion orders issued by the public respondents was that (t)he States compelling
interests being pursued by the DECs lawful regulations in question do not warrant
exemption of the school children of the Jehovahs Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions.[347] The Court,
however, referred to the test only towards the end of the decision and did not even
mention what the Solicitor General argued as the compelling state interest, much less did
the Court explain why the interest was not sufficiently compelling to override petitioners
religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v.
Court of Appeals, et al.[348] Although there was a dissent with respect to the applicability
of the clear and present danger test in this case, the majority opinion in unequivocal terms
applied the clear and present danger test to religious speech. This case involved the
television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon
petitioner Iglesia ni Cristos submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified these as X or
not for public viewing on the ground that they offend and constitute an attack against other
religions which is expressly prohibited by law.Invoking religious freedom, petitioner
alleged that the Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating them. While
upholding the Boards power to review the Iglesia television show, the Court was
emphatic about the preferred status of religious freedom. Quoting Justice Cruz
commentary on the constitution, the Court held that freedom to believe is absolute but
freedom to act on ones belief, where it affects the public, is subject to the authority of the
state. The commentary quoted Justice Frankfurters dissent in Barnette which was
quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom from conformity to
law because of religious dogma.[349]Nevertheless, the Court was quick to add the criteria
by which the state can regulate the exercise of religious freedom, that is, when the
exercise will bring about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more overriding interest of
public health, public morals, or public welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the Constitution is
hostile to all prior restraints on speech, including religious speech and the x-rating was a
suppression of petitioners freedom of speech as much as it was an interference with its
right to free exercise of religion. Citing Cantwell, the Court recognized that the different
religions may criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid down in
the American Bible Society case and the test of immediate and grave danger with
infringement only to the smallest extent necessary to avoid danger in Victoriano and
pointed out that the reviewing board failed to apply the clear and present danger
test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify the
conclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which has taken the
life of a reality already on ground.

Replying to the challenge on the applicability of the clear and present danger test to the
case, the Court acknowledged the permutations that the test has undergone, but stressed
that the test is still applied to four types of speech: speech that advocates dangerous
ideas, speech that provokes a hostile audience reaction, out of court contempt and
release of information that endangers a fair trial[351] and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the
clear and present danger test to the case at bar which concerns speech that attacks
other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly. [352]
 In Iglesia therefore, the Court went back to Gerona insofar as holding that religious
freedom cannot be invoked to seek exemption from compliance with a law that burdens
ones religious exercise. It also reiterated the clear and present danger test in American
Bible Society and the grave and imminent danger in Victoriano, but this time clearly
justifying its applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating
a law offensive to religious freedom, but carving out an exception or upholding an
exception to accommodate religious exercise where it is justified.[353]

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought

to be protected by the Establishment Clause, namely, voluntarism and insulation
of the political process from interfaith dissension. The first, voluntarism, has both a
personal and a social dimension. As a personal value, it refers to the inviolability of the
human conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism because compulsory
faith lacks religious efficacy. Compelled religion is a contradiction in terms.[354] As a social
value, it means that the growth of a religious sect as a social force must come from the
voluntary support of its members because of the belief that both spiritual and secular
society will benefit if religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from politics.[355] Non-
establishment thus calls for government neutrality in religious matters to uphold
voluntarism and avoid breeding interfaith dissension.[356]
The neutrality principle was applied in the first significant non-establishment case
under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine
Independent Church challenged the issuance and sale of postage stamps
commemorating the Thirty-Third International Eucharistic Congress of the Catholic
Church on the ground that the constitutional prohibition against the use of public money
for religious purposes has been violated. It appears that the Director of Posts issued the
questioned stamps under the provisions of Act No. 4052[358] which appropriated a sum for
the cost of plates and printing of postage stamps with new designs and authorized the
Director of Posts to dispose of the sum in a manner and frequency advantageous to the
Government. The printing and issuance of the postage stamps in question appears to
have been approved by authority of the President. Justice Laurel, speaking for the Court,
took pains explaining religious freedom and the role of religion in society, and in
conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz:

The prohibition herein expressed is a direct corollary of the principle of separation of

church and state. Without the necessity of adverting to the historical background of
this principle in our country, it is sufficient to say that our history, not to speak of
the history of mankind, has taught us that the union of church and state is
prejudicial to both, for occasions might arise when the state will use the church,
and the church the state, as a weapon in the furtherance of their respective ends
and aims . . . It is almost trite to say now that in this country we enjoy both religious
and civil freedom. All the officers of the Government, from the highest to the lowest,
in taking their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with its
inherent limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of

profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy, they
thereby manifested their intense religious nature and placed unfaltering reliance
upon Him who guides the destinies of men and nations. The elevating influence
of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and
denominations. . . [359]

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to
be inseparably linked with an event of a religious character, the resulting propaganda,
if any, received by the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion 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.
(Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168) (emphases supplied)
[360]

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a
law or government action with a legitimate secular purpose does not offend the
Establishment Clause even if it incidentally aids a particular religion.
 Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court
found that the separation of church and state was not at issue as the controversy was
over who should have custody of a saints image, it nevertheless made pronouncements
on the separation of church and state along the same line as the Aglipay ruling. The
Court held that there was nothing unconstitutional or illegal in holding a fiesta and having
a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved
in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which
is an ingrained tradition in rural communities that relieves the monotony and drudgery of
the lives of the masses. Corollarily, the Court found nothing illegal about any activity
intended to facilitate the worship of the patron saint such as the acquisition and display
of his image bought with funds obtained through solicitation from the barrio residents. The
Court pointed out that the image of the patron saint was purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for
the purpose of favoring any religion nor interfering with religious matters or the religious
beliefs of the barrio residents. Citing the Aglipay ruling, the Court declared, viz:

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.

Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel
issue involving the religion clauses. In this case, Section 2175 of the Revised
Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as
municipal officer was challenged. After protracted deliberation, the Court was sharply
divided on the issue. Seven members of the Court, one short of the number necessary to
declare a law unconstitutional, approached the problem from a free exercise perspective
and considered the law a religious test offensive of the constitution. They were Justices
Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and
Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to
any elective or appointive office, is, on its face, inconsistent with the religious freedom
guaranteed by the Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive

weight. What was there involved was the validity of a provision in the Maryland
Constitution prescribing that no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other than a declaration of
belief in the existence of God ***. Such a constitutional requirement was assailed as
contrary to the First Amendment of the United States Constitution by an appointee to
the office of notary public in Maryland, who was refused a commission as he would
not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed
in the United States Supreme Court, which reversed the state court decision. It could
not have been otherwise. As emphatically declared by Justice Black: this Maryland
religious test for public office unconstitutionally invades the appellants freedom of
belief and religion and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith
suffices to disqualify for a public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an express constitutional
mandate. [364]

On the other hand, the prevailing five other members of the Court - Chief Justice
Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a
non-establishment perspective and upheld the law as a safeguard against the constant
threat of union of church and state that has marked Philippine history. Justice Makasiar
stated: To allow an ecclesiastic to head the executive department of a municipality is to
permit the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect. Consequently, the Court upheld the validity of
Section 2175 of the Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural
religious disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein
was the right of control over certain properties of the Philippine Independent Church, the
resolution of which necessitated the determination of who was the legitimate bishop of
the church. The Court cited American Jurisprudence,[366] viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it

professes to administer, or is in conflict with the law of the land, it will not be
followed by the civil courts. . . In some instances, not only have the civil courts the
right to inquire into the jurisdiction of the religious tribunals and the regularity of their
procedure, but they have subjected their decisions to the test of fairness or to the test
furnished by the constitution and the law of the church. . . [367]

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de
los Reyes was the duly elected head of the Church, based on their internal laws. To finally
dispose of the property issue, the Court, citing Watson v. Jones,[368] declared that the rule
in property controversies within religious congregations strictly independent of any other
superior ecclesiastical association (such as the Philippine Independent Church) is that
the rules for resolving such controversies should be those of any voluntary association. If
the congregation adopts the majority rule then the majority should prevail; if it adopts
adherence to duly constituted authorities within the congregation, then that should be
followed. Applying these rules, Fonacier lost the case. While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary
differences raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church
and having reference to the power of excluding from the church those allegedly
unworthy of membership, are unquestionably ecclesiastical matters which are outside
the province of the civil courts.[369]

VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension

between the Free Exercise Clause and the Establishment Clause in their
application. There is a natural antagonism between a command not to establish religion
and a command not to inhibit its practice; this tension between the religion clauses often
leaves the courts with a choice between competing values in religion cases.[370]
One set of facts, for instance, can be differently viewed from the Establishment
Clause perspective and the Free Exercise Clause point of view, and decided in opposite
directions. In Pamil, the majority gave more weight to the religious liberty of the priest in
holding that the prohibition of ecclesiastics to assume elective or appointive government
positions was violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the principle of
separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause
and consequently exemptions from a law of general applicability are afforded by the Court
to the person claiming religious freedom; the question arises whether the exemption does
not amount to support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court
ruled, viz:

In holding as we do, plainly we are not fostering the establishment of the Seventh-
day Adventist religion in South Carolina, for the extension of unemployment benefits
to Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does
not represent that involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall. (emphasis supplied)
[371]

Tension also exists when a law of general application provides exemption in order to
uphold free exercise as in the Walz case where the appellant argued that the exemption
granted to religious organizations, in effect, required him to contribute to religious bodies
in violation of the Establishment Clause. But the Court held that the exemption was not a
case of establishing religion but merely upholding the Free Exercise Clause by sparing
the exercise of religion from the burden of property taxation levied on private profit
institutions. Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses,
both of which are cast in absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other. [372]

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption
afforded by law to religious sects who prohibit their members from joining unions did not
offend the Establishment Clause. We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with
the spirit of the constitutional provision. It acted merely to relieve the exercise of
religion, by certain persons, of a burden that is imposed by union security
agreements. (emphasis supplied)
[373]

Finally, in some cases, a practice is obviously violative of the Establishment Clause

but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: (t)here are
certain practices, conceivably violative of the Establishment Clause, the striking down of
which might seriously interfere with certain religious liberties also protected by the First
Amendment.
How the tension between the Establishment Clause and the Free Exercise Clause
will be resolved is a question for determination in the actual cases that come to the
Court. In cases involving both the Establishment Clause and the Free Exercise Clause,
the two clauses should be balanced against each other. The courts must review all the
relevant facts and determine whether there is a sufficiently strong free exercise right that
should prevail over the Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given an edge not only
because of abundant historical evidence in the colonial and early national period of the
United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizens free exercise of religion seems far less dangerous to the
republic than pure establishment cases. Each time the courts side with the Establishment
Clause in cases involving tension between the two religion clauses, the courts convey a
message of hostility to the religion that in that case cannot be freely
exercised.[374] American professor of constitutional law, Laurence Tribe, similarly suggests
that the free exercise principle should be dominant in any conflict with the anti-
establishment principle. This dominance would be the result of commitment to religious
tolerance instead of thwarting at all costs even the faintest appearance of
establishment.[375] In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern society is characterized by
the expanding regulatory arm of government that reaches a variety of areas of human
conduct and an expanding concept of religion. To adequately meet the demands of this
modern society, the societal values the religion clauses are intended to protect must be
considered in their interpretation and resolution of the tension. This, in fact, has been the
approach followed by the Philippine Court.[376]
 IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution. The religion
clauses in the First Amendment were contained in every organic Act of the Philippines
under the American regime. When the delegates of the 1934 Constitutional Convention
adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology
of the religion clauses in the First Amendment as contained in the Jones Law in order to
adopt its historical background, nature, extent and limitations. At that time, there were not
too many religion clause cases in the United States as the U.S. Supreme Court decided
an Establishment Clause issue only in the 1947 Everson case. The Free Exercise
Clause cases were also scarce then. Over the years, however, with the expanding reach
of government regulation to a whole gamut of human actions and the growing plurality
and activities of religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of the religion
clauses, at times reinforcing prevailing case law, at other times modifying it, and still at
other times creating contradictions so that two main streams of jurisprudence had become
identifiable. The first stream employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change in the landscape of
U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935
Constitution religion clauses in the 1973 Constitution and later, the 1987
Constitution.Philippine jurisprudence and commentaries on the religious clauses
also continued to borrow authorities from U.S. jurisprudence without articulating
the stark distinction between the two streams of U.S. jurisprudence. One might
simply conclude that the Philippine Constitutions and jurisprudence also inherited the
disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when
a religion clause case comes before the Court, a separationist approach or
a benevolent neutrality approach might be adopted and each will have U.S. authorities
to support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationistapproach, Philippine
jurisprudence should also follow this approach in light of the Philippine religion clauses
history. As a result, in a case where the party claims religious liberty in the face of a
general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions, however, are not
and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by
other provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a whole and
apparently conflicting provisions should be reconciled and harmonized in a manner that
will give to all of them full force and effect.[377] From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions, and
the enforcement of this intent is the goal of construing the constitution.[378]
 We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the
same time that the 1935 Constitution provided for an Establishment Clause, it also
provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all
lands, buildings, and improvements used exclusively for religious, charitable, or
educational purposes shall be exempt from taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code
provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained
a limitation on the taxing power of the Philippine government during the Commonwealth
period.[379] The original draft of the Constitution placed this provision in an ordinance to be
appended to the Constitution because this was among the provisions prescribed by the
Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was introduced in the
body of the Constitution on the rationale that if churches, convents [rectories or
parsonages] and their accessories are always necessary for facilitating the exercise of
such [religious] freedom, it would also be natural that their existence be also guaranteed
by exempting them from taxation.[380] The amendment was readily approved with 83
affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in the U.S.
Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption
to withstand Establishment Clause scrutiny by stating that church property was not
singled out but was exempt along with property owned by non-profit, quasi-public
corporations because the state upheld the secular policy that considers these groups as
beneficial and stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest. The Court also stated that the exemption was meant
to relieve the burden on free exercise imposed by property taxation. At the same time,
however, the Court acknowledged that the exemption was an exercise of benevolent
neutrality to accommodate a long-standing tradition of exemption. With the inclusion of
the church property tax exemption in the body of the 1935 Constitution and not merely as
an ordinance appended to the Constitution, the benevolent neutrality referred to in
the Walz case was given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an acknowledgment of the
necessity of the exempt institutions to the exercise of religious liberty, thereby evincing
benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly
or indirectly, for the use, benefit, or support of any sect, church, denomination,
sectarian institution or system of religion, for the use, benefit or support of any priest,
preacher, ministers 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, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3 of the Jones
Law which did not contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or

indirectly, for the use, benefit, or support of any sect, church denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or dignitary as such [382]

In the deliberations of this draft provision, an amendment was proposed to strike down
everything after church denomination.[383] The proposal intended to imitate the silence of
the U.S. Constitution on the subject of support for priests and ministers. It was also an
imitation of the silence of the Malolos Constitution to restore the situation under the
Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army
received pay from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations were made
to chaplains of the national penitentiary and the Auditor General upheld its validity on the
basis of a similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the Jones Law. [384] To
settle the question on the constitutionality of payment of salaries of religious officers in
certain government institutions and to avoid the feared situation where the enumerated
government institutions could not employ religious officials with compensation, the
exception in the 1935 provision was introduced and approved. The provision garnered 74
affirmative votes against 34 negative votes.[385] As pointed out in the deliberations, the U.S.
Constitution does not provide for this exemption. However, the U.S. Supreme Court
in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved
the state of Texas payment of prison chaplains salaries as reasonably necessary to
permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court
upheld the long-standing tradition of beginning legislative sessions with prayers offered
by legislative chaplains retained at taxpayers expense. The constitutional provision
exempting religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality
in Philippine jurisdiction.While the provision prohibiting aid to religion protects the wall of
separation between church and state, the provision at the same time gives constitutional
sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the
Philippine Establishment Clause, the 1935 Constitution provides for optional religious
instruction in public schools in Article XIII, Section 5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now

authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the
town where a public school is situated, either in person or by a designated teacher of
religion, to teach religion for one-half hour three times a week, in the school building,
to those public-school pupils whose parents or guardians desire it and express their
desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the
issue of religious instruction in public schools. The first held that the teaching of religion
in public schools should be prohibited as this was a violation of the principle of separation
of church and state and the prohibition against the use of public funds for religious
purposes. The second favored the proposed optional religious instruction as authorized
by the Administrative Code and recognized that the actual practice of allowing religious
instruction in the public schools was sufficient proof that religious instruction was not and
would not be a source of religious discord in the schools.[386] The third wanted religion to
be included as a course in the curriculum of the public schools but would only be taken
by pupils at the option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional teaching of
religion in public schools, despite the opposition to the provision on the ground of
separation of church and state.[387] As in the provisions on church property tax exemption
and compensation of religious officers in government institutions, the U.S. Constitution
does not provide for optional religious instruction in public schools. In fact, in
the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school
premises. The constitutional provision on optional religious instruction shows that
Philippine jurisdiction rejects the strict neutrality approach which does not allow such
accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino people
implored (ing) the aid of Divine Providence (,) in order to establish a government that shall
embody their ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution. A preamble is a key to open the mind of the authors of
the constitution as to the evil sought to be prevented and the objects sought to be
accomplished by the provisions thereof.[388] There was no debate on the inclusion of a
Divine Providence in the preamble. In Aglipay, Justice Laurel noted that when the
Filipino people implored the aid of Divine Providence, (t)hey thereby manifested their
intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations.[389] The 1935 Constitutions religion clauses, understood
alongside the other provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to
Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property
from taxation, with the modification that the property should not only be used directly, but
also actually and exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar
provision on salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction
was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification
that optional religious instruction shall be conducted as may be provided by law and not
as now authorized by law as stated in the 1935 Constitution. The 1973 counterpart,
however, made explicit in the constitution that the religious instruction in public
elementary and high schools shall be done (a)t the option expressed in writing by the
parents or guardians, and without cost to them and the government. With the adoption of
these provisions in the 1973 Constitution, the benevolent neutrality approach continued
to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the
1973 Constitution this provision made its maiden appearance: (t)he separation of church
and state shall be inviolable. The 1973 Constitution retained the portion of the preamble
imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the
Committee on Church and State of the 1971 Constitutional Convention, the question
arose as to whether the absolute separation of Church and State as enunciated in
the Everson case and reiterated in Schempp - i.e., neutrality not only as between one
religion and another but even as between religion and non-religion - is embodied in the
Philippine Constitution. The sub-committees answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the elevating influence of religion in
human society and the Filipinos imploring of Divine Providence in the 1935 Constitution,
the sub-committee asserted that the state may not prefer or aid one religion over another,
but may aid all religions equally or the cause of religion in general.[391] Among the position
papers submitted to the Committee on Church on State was a background paper for
reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated
therein that the Philippine Constitution is not hostile to religion and in fact recognizes the
value of religion and accommodates religious values.[392] Stated otherwise, the
Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While
the Committee introduced the provision on separation of church and state in the General
Provisions of the 1973 Constitution, this was nothing new as according to it, this principle
was implied in the 1935 Constitution even in the absence of a similar provision. [393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in Article VI, Section
28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use
of public money and property for religious purposes and the salaries of religious officers
serving in the enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing the
government to spend public money for purposes which might have religious connections
but which would benefit the public generally. Citing the Aglipay case, Commissioner
Rodrigo explained that if a public expenditure would benefit the government directly, such
expense would be constitutional even if it results to an incidental benefit to religion. With
that explanation, Commissioner Bacani no longer pursued his proposal. [394]
The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was expressly
provided that optional instruction shall be conducted within the regular class hours and
without additional cost to the government. There were protracted debates on what
additional cost meant, i.e., cost over and above what is needed for normal operations
such as wear and tear, electricity, janitorial services,[395] and when during the day
instruction would be conducted.[396] In deliberating on the phrase within the regular class
hours, Commissioner Aquino expressed her reservations to this proposal as this would
violate the time-honored principle of separation of church and state.She cited
the McCullom case where religious instruction during regular school hours was stricken
down as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson where the U.S.
Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on
non-establishment of religion, because if it were not necessary to make this
exception for purposes of allowing religious instruction, then we could just drop the
amendment. But, as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American practices. (emphasis [397]

supplied)

(W)ithin regular class hours was approved.

The provision on the separation of church and state was retained but placed under
the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In
opting to retain the wording of the provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence The separation of

Church and State is inviolable, is almost a useless statement; but at the same time it is
a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if
we look at the jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the non-establishment clause in the
Bill of Rights.[398]

The preamble changed Divine Providence in the 1935 and 1973 Constitutions to
Almighty God. There was considerable debate on whether to use Almighty God which
Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner
Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional
Convention objected to reference to a personal God. [399] God of History, Lord of History
and God were also proposed, but the phrase Almighty God prevailed. Similar to the 1935
and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent
to religion;[400] its wall of separation is not a wall of hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church
property, salary of religious officers in government institutions, optional religious
instruction and the preamble all reveal without doubt that the Filipino people, in adopting
these constitutions, did not intend to erect a high and impregnable wall of separation
between the church and state.[402]The strict neutrality approach which examines only
whether government action is for a secular purpose and does not consider inadvertent
burden on religious exercise protects such a rigid barrier. By adopting the above
constitutional provisions on religion, the Filipinos manifested their adherence to
the benevolent neutrality approach in interpreting the religion clauses, an approach that
looks further than the secular purposes of government action and examines the effect of
these actions on religious exercise. Benevolent neutrality recognizes the religious
nature of the Filipino people and the elevating influence of religion in society; at the same
time, it acknowledges that government must pursue its secular goals. In pursuing these
goals, however, government might adopt laws or actions of general applicability which
inadvertently burden religious exercise. Benevolent neutrality gives room
for accommodation of these religious exercises as required by the Free Exercise
Clause. It allows these breaches in the wall of separation to uphold religious liberty, which
after all is the integral purpose of the religion clauses. The case at bar involves this first
type of accommodation where an exemption is sought from a law of general applicability
that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean that
the Court will not look with hostility or act indifferently towards religious beliefs
and practices and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss a claim
under the Free Exercise Clause because the conduct in question offends a law or
the orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an exception
when the religion clauses justify it. While the Court cannot adopt a doctrinal
formulation that can eliminate the difficult questions of judgment in determining the degree
of burden on religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed. [403] We here lay
down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty not only for a minority, however small-
not only for a majority, however large- but for each of us to the greatest extent
possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been
recognized in Philippine jurisprudence, albeit not expressly called benevolent neutrality
or accommodation. In Aglipay, the Court not only stressed the elevating influence of
religion in human society but acknowledged the Constitutional provisions on exemption
from tax of church property, salary of religious officers in government institutions, and
optional religious instruction as well as the provisions of the Administrative Code making
Thursday and Friday of the Holy Week, Christmas Day and Sundays legal
holidays. In Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions which have
acquired a social character - the barrio fiesta is a socio-religious affair - does not offend
the Establishment Clause. In Victoriano, the Court upheld the exemption from closed
shop provisions of members of religious sects who prohibited their members from joining
unions upon the justification that the exemption was not a violation of the Establishment
Clause but was only meant to relieve the burden on free exercise of
religion. In Ebralinag,members of the Jehovahs Witnesses were exempt from saluting
the flag as required by law, on the basis not of a statute granting exemption but of the
Free Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine religion
clauses have taken a life of their own, breathing the air of benevolent
neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is
not as high and impregnable as the wall created by the U.S. Supreme Court
in Everson.[404] While the religion clauses are a unique American experiment which
understandably came about as a result of Americas English background and colonization,
the life that these clauses have taken in this jurisdiction is the Philippines own experiment,
reflective of the Filipinos own national soul, history and tradition. After all, the life of the
law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence unmistakably
show that benevolent neutrality is the lens with which the Court ought to view religion
clause cases, it must be stressed that the interest of the state should also be
afforded utmost protection. To do this, a test must be applied to draw the line between
permissible and forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious liberty, the law
must set a limit when their exercise offends the higher interest of the state. To do
otherwise is self-defeating for unlimited freedom would erode order in the state and
foment anarchy, eventually destroying the very state its members established to protect
their freedoms. The very purpose of the social contract by which people establish the
state is for the state to protect their liberties; for this purpose, they give up a portion of
these freedoms - including the natural right to free exercise - to the state. It was certainly
not the intention of the authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that guarantees free
exercise.[405]
The all important question then is the test that should be used in ascertaining the
limits of the exercise of religious freedom. Philippine jurisprudence articulates several
tests to determine these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the clear and present danger test
but did not employ it.Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the immediate and grave danger test as well as the
doctrine that a law of general applicability may burden religious exercise provided the law
is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the compelling state interest test. After Victoriano, German went back
to the Gerona rule. Ebralinag then employed the grave and immediate danger test and
overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
clear and present danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present danger or grave
and immediate danger test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand,
the Geronaand German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the grave and
immediate danger test. Victoriano was the only case that employed the compelling state
interest test, but as explained previously, the use of the test was inappropriate to the facts
of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the clear and present danger and grave and
immediate danger tests were appropriate as speech has easily discernible or immediate
effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The compelling state interest test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the states
interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights - the most
inalienable and sacred of all human rights, in the words of Jefferson.[406] This right is sacred
for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty,[407] thus the Filipinos implore the aid of Almighty God in order to
build a just and humane society and establish a government. As held in Sherbert, only
the gravest abuses, endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. [408] In determining which shall
prevail between the states interest and religious liberty, reasonableness shall be the
guide.[409] The compelling state interest serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the compelling state interest test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved.

X. Application of the Religion Clauses to the Case at Bar

 A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in
illicit relations are guilty of disgraceful and immoral conduct for which he/she may be held
administratively liable.[410] In these cases, there was not one dissent to the majoritys ruling
that their conduct was immoral. The respondents themselves did not foist the defense
that their conduct was not immoral, but instead sought to prove that they did not commit
the alleged act or have abated from committing the act. The facts of the 1975 case of De
Dios v. Alejo[411]and the 1999 case of Maguad v. De Guzman,[412] are similar to the case
at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any
objection to the illicit relation, there is no proof of scandal or offense to the moral
sensibilities of the community in which the respondent and the partner live and work, and
the government employee is capacitated to marry while the partner is not capacitated but
has long been separated in fact. Still, the Court found the government employees
administratively liable for disgraceful and immoral conduct and only considered the
foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that
there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and
immoral conduct for which a government employee is held liable. Nor is there an
allegation that the norms of morality with respect to illicit relations have shifted towards
leniency from the time these precedent cases were decided. The Court finds that there is
no such error or shift, thus we find no reason to deviate from these rulings that such illicit
relationship constitutes disgraceful and immoral conduct punishable under the Civil
Service Law. Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively liable. However,
there is a distinguishing factor that sets the case at bar apart from the cited precedents,
i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovahs
Witnesses, has, after thorough investigation, allowed her conjugal arrangement with
Quilapio based on the churchs religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the
dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr.
Justice Vitug dwell more on the standards of morality than on the religion clauses in
deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and why. Any
definition of morality beyond Socrates simple formulation is bound to offend one or
another of the many rival theories regarding what it means to live morally. [413] The answer
to the question of how we ought to live necessarily considers that man does not live in
isolation, but in society.Devlin posits that a society is held together by a community of
ideas, made up not only of political ideas but also of ideas about the manner its members
should behave and govern their lives. The latter are their morals; they constitute the public
morality. Each member of society has ideas about what is good and what is evil. If people
try to create a society wherein there is no fundamental agreement about good and evil,
they will fail; if having established the society on common agreement, the agreement
collapses, the society will disintegrate. Society is kept together by the invisible bonds of
common thought so that if the bonds are too loose, the members would drift apart. A
common morality is part of the bondage and the bondage is part of the price of society;
and mankind, which needs society, must pay its price. [414] This design is parallel with the
social contract in the realm of politics: people give up a portion of their liberties to the
state to allow the state to protect their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their liberties and embody
this agreement in a constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution destroys the old
order and creates a new one.[415] Similarly, in the realm of morality, the breakdown of the
fundamental agreement about the manner a societys members should behave and
govern their lives would disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and other essential
institutions.[416] From these propositions of Devlin, one cannot conclude that Devlin
negates diversity in society for he is merely saying that in the midst of this diversity, there
should nevertheless be a fundamental agreement about good and evil that will govern
how people in a society ought to live. His propositions, in fact, presuppose diversity hence
the need to come to an agreement; his position also allows for change of morality from
time to time which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in establishing
and maintaining their society, and these fundamental values and principles are translated
into legislation that governs the order of society, laws that may be amended from time to
time. Harts argument propounded in Mr. Justice Vitugs separate opinion that, Devlins
view of people living in a single society as having common moral foundation (is) overly
simplistic because societies have always been diverse fails to recognize the necessity of
Devlins proposition in a democracy. Without fundamental agreement on political and
moral ideas, society will fall into anarchy; the agreement is necessary to the existence
and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in
the public square. Where citizens are free, every opinion, every prejudice, every
aspiration, and every moral discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers of opinion, including
opinion shaped by, or espousing religious belief, and these citizens have equal access to
the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance.[417] Thus,
when public deliberation on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median
groups.[418] Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies -- including protection of religious freedom not only for a minority,
however small- not only for a majority, however large- but for each of us -- the majority
imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could
do: to ride roughshod over the dissenting minorities.[419] In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries out this
promise, provided the compelling interests of the state are not eroded for the preservation
of the state is necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States and the
Philippines to accommodate those minority religions which are politically powerless. It is
not surprising that Smith is much criticized for it blocks the judicial recourse of the
minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it,
(t)he law is the witness and deposit of our moral life. [420] In a liberal democracy, the law
reflects social morality over a period of time.[421] Occasionally though, a disproportionate
political influence might cause a law to be enacted at odds with public morality or
legislature might fail to repeal laws embodying outdated traditional moral views. [422] Law
has also been defined as something men create in their best moments to protect
themselves in their worst moments.[423] Even then, laws are subject to amendment or
repeal just as judicial pronouncements are subject to modification and reversal to better
reflect the public morals of a society at a given time. After all, the life of the law...has been
experience, in the words of Justice Holmes. This is not to say though that law is all of
morality. Law deals with the minimum standards of human conduct while morality is
concerned with the maximum. A person who regulates his conduct with the sole object of
avoiding punishment under the law does not meet the higher moral standards set by
society for him to be called a morally upright person.[424] Law also serves as a helpful
starting point for thinking about a proper or ideal public morality for a society [425] in pursuit
of moral progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law
and public morality. We held that under the utilitarian theory, the protective theory in
criminal law, criminal law is founded upon the moral disapprobation x x x of actions
which are immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This
disapprobation is inevitable to the extent that morality is generally founded and built
upon a certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation: the method
of punishment is in reality the amount of punishment.[427]Stated otherwise, there are certain
standards of behavior or moral principles which society requires to be observed and these
form the bases of criminal law. Their breach is an offense not only against the person
injured but against society as a whole.[428] Thus, even if all involved in the misdeed are
consenting parties, such as in the case at bar, the injury done is to the public morals and
the public interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point
in his separate opinion. He observes that certain immoral acts which appear private and
not harmful to society such as sexual congress between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country. His
opinion asks whether these laws on private morality are justified or they constitute
impingement on ones freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondents conduct, which constitutes
concubinage,[430] is private in the sense that there is no injured party or the offended
spouse consents to the concubinage, the inescapable fact is that the legislature has taken
concubinage out of the sphere of private morals. The legislature included concubinage
as a crime under the Revised Penal Code and the constitutionality of this law is not being
raised in the case at bar. In the definition of the crime of concubinage, consent of the
injured party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape[431] where consent of the supposed victim negates the crime. If at all, the consent or
pardon of the offended spouse in concubinage negates the prosecution of the
action,[432] but does not alter the legislatures characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that, (t)he ponencia has
taken pains to distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only concern itself
with secular morality. The Court does not draw this distinction in the case at bar. The
distinction relevant to the case is not, as averred and discussed by the separate opinion,
between secular and private morality, but between public and secular morality on the one
hand, and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We
recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et
al., where we explained that for those wrongs which are not punishable by law, Articles
19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human
Relations, provide for the recognition of the wrong and the concomitant punishment in the
form of damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage. (emphasis supplied)

We then cited in Velayo the Code Commissions comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers of
moral wrongs which is impossible for human foresight to provide for specifically
in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between
morality and law? The answer is that, in the last analysis, every good law draws its
breath of life from morals, from those principles which are written with words of
fire in the conscience of man. If this premise is admitted, then the proposed rule is a
prudent earnest of justice in the face of the impossibility of enumerating, one by one,
all wrongs which cause damages. When it is reflected that while codes of law and
statutes have changed from age to age, the conscience of man has remained fixed to
its ancient moorings, one can not but feel that it is safe and salutary to transmute,
as far as may be, moral norms into legal rules, thus imparting to every legal system
that enduring quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order
than that a person may with impunity cause damage to his fellow-men so long as he
does not break any law of the State, though he may be defying the most sacred
postulates of morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the
German Civil Code. (emphases supplied)
[433]

The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the
morality it sanctions. Religious morality proceeds from a persons views of his relations to
His Creator and to the obligations they impose of reverence to His being and character
and obedience to His Will, in accordance with this Courts definition of religion
in American Bible Society citing Davis. Religion also dictates how we ought to live for
the nature of religion is not just to know, but often, to act in accordance with mans views
of his relations to His Creator.[434] But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and implies the
affirmative establishment of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the war of all sects against all;
the establishment of a secular public moral order is the social contract produced by
religious truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the
Code of Professional Responsibility for lawyers[436], or public morals in the Revised Penal
Code,[437]or morals in the New Civil Code,[438] or moral character in the Constitution,[439] the
distinction between public and secular morality on the one hand, and religious morality,
on the other, should be kept in mind.[440] The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious
teachings as expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular
terms.[441] Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers would therefore
be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to
a compelled religion, anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby
also tacitly disapprove contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-class
citizens.Expansive religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.[442]
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That is, the
government proscribes this conduct because it is detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society and not
because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and
thus have religious opinions and moral codes with a compelling influence on them; the
human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. [443] Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination
shows a discriminatory and prohibitory religious purpose, the law will be struck down for
being offensive of the religion clauses as in Church of the Lukumi Babalu Aye,
Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice
of the Santeria.Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitutions religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes
that government must pursue its secular goals and interests but at the same time strives
to uphold religious liberty to the greatest extent possible within flexible constitutional
limits. Thus, although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it does
not offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach
when it states that in deciding the case at bar, the approach should consider that, (a)s a
rule . . . moral laws are justified only to the extent that they directly or indirectly serve to
protect the interests of the larger society. It is only where their rigid application would
serve to obliterate the value which society seeks to uphold, or defeat the purpose for
which they are enacted would, a departure be justified. In religion clause parlance, the
separate opinion holds that laws of general applicability governing morals should have a
secular purpose of directly or indirectly protecting the interests of the state. If the strict
application of these laws (which are the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law (which the separate opinion identifies as
upholding the sanctity of marriage and the family), then in a benevolent
neutrality framework, an accommodation of the unconventional religious belief and
practice (which the separate opinion holds should be respected on the ground of freedom
of belief) that would promote the very same secular purpose of upholding the sanctity of
marriage and family through the Declaration Pledging Faithfulness that makes the union
binding and honorable before God and men, is required by the Free Exercise Clause. The
separate opinion then makes a preliminary discussion of the values society seeks to
protect in adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and evidence in relation
thereto presented in the OCA. The accommodation approach in the case at bar would
also require a similar discussion of these values and presentation of evidence before the
OCA by the state that seeks to protect its interest on marriage and opposes
the accommodation of the unconventional religious belief and practice regarding
marriage.
 The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other, is
important because the jurisdiction of the Court extends only to public and secular
morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. More concretely, should the Court
declare respondents conduct as immoral and hold her administratively liable, the Court
will be holding that in the realm of public morality, her conduct is reprehensible or there
are state interests overriding her religious freedom. For as long as her conduct is being
judged within this realm, she will be accountable to the state. But in so ruling, the Court
does not and cannot say that her conduct should be made reprehensible in the realm of
her church where it is presently sanctioned and that she is answerable for her immorality
to her Jehovah God nor that other religions prohibiting her conduct are correct. On the
other hand, should the Court declare her conduct permissible, the Court will be holding
that under her unique circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality thus her conduct
should not be penalized. But the Court is not ruling that the tenets and practice of her
religion are correct nor that other churches which do not allow respondents conjugal
arrangement should likewise allow such conjugal arrangement or should not find anything
immoral about it and therefore members of these churches are not answerable for
immorality to their Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about
the truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters
dealing with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a churchare unquestionably ecclesiastical matters which are outside the province of
the civil courts.[444] But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious clauses, the social
contract and the constitutional order are designed in such a way that when religious belief
flows into speech and conduct that step out of the religious sphere and overlap with the
secular and public realm, the state has the power to regulate, prohibit and penalize these
expressions and embodiments of belief insofar as they affect the interests of the
state. The states inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American history narrated
above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious morality, the
more difficult task is determining which immoral acts under this public and secular morality
fall under the phrase disgraceful and immoral conduct for which a government employee
may be held administratively liable. The line is not easy to draw for it is like a line that
divides land and sea, a coastline of irregularities and indentations.[445] But the case at bar
does not require us to comprehensively delineate between those immoral acts for which
one may be held administratively liable and those to which administrative liability does
not attach. We need not concern ourselves in this case therefore whether laziness,
gluttony, vanity, selfishness, avarice and cowardice are immoral acts which constitute
grounds for administrative liability. Nor need we expend too much energy grappling with
the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or
different jurisdictions have different standards of morality as discussed by the dissents
and separate opinions, although these observations and propositions are true and
correct. It is certainly a fallacious argument that because there are exceptions to the
general rule that the law is the witness and deposit of our moral life, then the rule is not
true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the
observation that morality is relative in different jurisdictions only affirms the truth that there
is morality in a particular jurisdiction; without, however, discounting the truth that
underneath the moral relativism are certain moral absolutes such as respect for life and
truth-telling, without which no society will survive. Only one conduct is in question before
this Court, i.e., the conjugal arrangement of a government employee whose partner is
legally married to another which Philippine law and jurisprudence consider both immoral
and illegal. Lest the Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention upon the sole
conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme.
Justice Ynares-Santiago groped for standards of morality and stated that the
ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards but did not articulate how these standards are to be
ascertained. Instead, it held that, (f)or those in the service of the Government, provisions
of law and court precedents . . . have to be considered. It identified the Civil Service Law
and the laws on adultery and concubinage as laws which respondents conduct has
offended and cited a string of precedents where a government employee was found guilty
of committing a disgraceful and immoral conduct for maintaining illicit relations and was
thereby penalized. As stated above, there is no dispute that under settled jurisprudence,
respondents conduct constitutes disgraceful and immoral conduct. However, the cases
cited by the dissent do not involve the defense of religious freedom which respondent in
the case at bar invokes. Those cited cases cannot therefore serve as precedents in
settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in
laying down the standard of morality, viz: (w)hether an act is immoral within the meaning
of the statute is not to be determined by respondents concept of morality. The law
provides the standard; the offense is complete if respondent intended to perform, and did
in fact perform, the act which it condemns. The Mann Act under consideration in
the Cleveland case declares as an offense the transportation in interstate commerce of
any woman or girl for the purpose of prostitution or debauchery, or for any other immoral
purpose.[447] The resolution of that case hinged on the interpretation of the phrase immoral
purpose. The U.S. Supreme Court held that the petitioner Mormons act of transporting at
least one plural wife whether for the purpose of cohabiting with her, or for the purpose of
aiding another member of their Mormon church in such a project, was covered by the
phrase immoral purpose. In so ruling, the Court relied on Reynolds which held that the
Mormons practice of polygamy, in spite of their defense of religious freedom, was odious
among the northern and western nations of Europe, [448] a return to barbarism,[449] contrary
to the spirit of Christianity and of the civilization which Christianity has produced in the
Western world,[450] and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at
bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically odious
or barbaric do not apply in the Philippines where Muslims, by law, are allowed to practice
polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding
that the defense of religious freedom of a member of the Jehovahs Witnesses under the
same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that her
conduct is likewise so odious and barbaric as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on determining
the applicable moral standards and less on religious freedom, Mme. Justice Ynares-
Santiagos dissent nevertheless discussed respondents plea of religious freedom and
disposed of this defense by stating that (a) clear and present danger of a substantive evil,
destructive to public morals, is a ground for the reasonable regulation of the free exercise
and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil.
386 [1957]). In addition to the destruction of public morals, the substantive evil in this case
is the tearing down of morality, good order, and discipline in the judiciary. However, the
foregoing discussion has shown that the clear and present danger test that is usually
employed in cases involving freedom of expression is not appropriate to the case at bar
which involves purely religious conduct. The dissent also cites Reynolds in supporting
its conclusion that respondent is guilty of disgraceful and immoral conduct. The Reynolds
ruling, however, was reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction
adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not
reflect the constitutional intent of employing benevolent neutrality in interpreting the
Philippine religion clauses. His dissent avers that respondent should be held
administratively liable not for disgraceful and immoral conduct but conduct prejudicial to
the best interest of the service as she is a necessary co-accused of her partner in
concubinage. The dissent stresses that being a court employee, her open violation of the
law is prejudicial to the administration of justice. Firstly, the dissent offends due process
as respondent was not given an opportunity to defend herself against the charge of
conduct prejudicial to the best interest of the service. In addition, there is no evidence of
the alleged prejudice to the best interest of the service. Most importantly, the dissent
concludes that respondents plea of religious freedom cannot prevail without so much as
employing a test that would balance respondents religious freedom and the states interest
at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom,
however, shows that with benevolent neutrality as a framework, the Court cannot simply
reject respondents plea of religious freedom without even subjecting it to the compelling
state interest test that would balance her freedom with the paramount interests of the
state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and
People v. Bitdu decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.
Malik[451] cited in Mr. Justice Carpios dissent decisive of the immorality issue in the case
at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge
for engaging in an adulterous relationship with another woman with whom he had three
children because it (was) not immoral by Muslim standards for Judge Malik to marry a
second time while his first marriage (existed). Putting the quoted portion in its proper
context would readily show that the Sulu Islamic case does not provide a precedent to
the case at bar. Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy shall not apply to a person married x x x under Muslim Law, it is not immoral by
Muslim standards for Judge Malik to marry a second time while his first marriage
exists.[452] It was by law, therefore, that the Muslim conduct in question was classified as
an exception to the crime of bigamy and thus an exception to the general standards of
morality. The constitutionality of P.D. No. 1083 when measured against the Establishment
Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not
determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead
relied on the provision excepting the challenged Muslim conduct from the crime of bigamy
in holding that the challenged act is not immoral by Muslim standards. In contradistinction,
in the case at bar, there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on illicit relations of
civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondents claim
of religious freedom to the compelling state interest test from a benevolent neutrality
stance - i.e. entertaining the possibility that respondents claim to religious freedom would
warrant carving out an exception from the Civil Service Law; necessarily, her defense of
religious freedom will be unavailing should the government succeed in demonstrating a
more compelling state interest.
In applying the test, the first inquiry is whether respondents right to religious
freedom has been burdened. There is no doubt that choosing between keeping her
employment and abandoning her religious belief and practice and family on the one hand,
and giving up her employment and keeping her religious practice and family on the other
hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that
Sherberts religious exercise was burdened as the denial of unemployment benefits forces
her to choose between following the precepts of her religion and forfeiting benefits, on the
one hand, and abandoning one of the precepts of her religion in order to accept work, on
the other hand. The burden on respondent in the case at bar is even greater as the price
she has to pay for her employment is not only her religious precept but also her family
which, by the Declaration Pledging Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious
belief. Respondent appears to be sincere in her religious belief and practice and is not
merely using the Declaration of Pledging Faithfulness to avoid punishment for
immorality. She did not secure the Declaration only after entering the judiciary where the
moral standards are strict and defined, much less only after an administrative case for
immorality was filed against her. The Declaration was issued to her by her congregation
after ten years of living together with her partner, Quilapio, and ten years before she
entered the judiciary. Ministers from her congregation testified on the authenticity of the
Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural
basis for such a practice. As the ministers testified, the Declaration is not whimsically
issued to avoid legal punishment for illicit conduct but to make the union of their members
under respondents circumstances honorable before God and men. It is also worthy of
notice that the Report and Recommendation of the investigating judge annexed
letters[453] of the OCA to the respondent regarding her request to be exempt from attending
the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag
ceremony. The OCAs letters were not submitted by respondent as evidence but annexed
by the investigating judge in explaining that he was caught in a dilemma whether to find
respondent guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondents request for exemption from
the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and
practice. Respondents request for exemption from the flag ceremony shows her sincerity
in practicing the Jehovahs Witnesses beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah
ministers testified that she is a member in good standing. Nevertheless, should the
government, thru the Solicitor General, want to further question the respondents sincerity
and the centrality of her practice in her faith, it should be given the opportunity to do
so.The government has not been represented in the case at bar from its incipience until
this point.
In any event, even if the Court deems sufficient respondents evidence on the
sincerity of her religious belief and its centrality in her faith, the case at bar cannot
still be decided using the compelling state interest test. The case at bar is one of first
impression, thus the parties were not aware of the burdens of proof they should
discharge in the Courts use of the compelling state interest test. We note that the OCA
found respondents defense of religious freedom unavailing in the face of the Courts ruling
in Dicdican v. Fernan, et al., viz:

It bears emphasis that the image of a court of justice is mirrored in the conduct,
official and otherwise, of the personnel who work thereat, from the judge to the lowest
of its personnel. Court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the courts of justice.

It is apparent from the OCAs reliance upon this ruling that the state interest it upholds
is the preservation of the integrity of the judiciary by maintaining among its ranks a high
standard of morality and decency. However, there is nothing in the OCAs memorandum
to the Court that demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom nor is it shown that the means employed by the
government in pursuing its interest is the least restrictive to respondents religious
exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence
on the compelling interest of the state. The burden of evidence should be discharged by
the proper agency of the government which is the Office of the Solicitor General. To
properly settle the issue in the case at bar, the government should be given the
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing
the respondents stance that her conjugal arrangement is not immoral and punishable as
it comes within the scope of free exercise protection. Should the Court prohibit and
punish her conduct where it is protected by the Free Exercise Clause, the Courts
action would be an unconstitutional encroachment of her right to religious
freedom.[454] We cannot therefore simply take a passing look at respondents claim of
religious freedom, but must instead apply the compelling state interest test.The
government must be heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the states compelling interest which can override
respondents religious belief and practice. To repeat, this is a case of first impression
where we are applying the compelling state interest test in a case involving purely
religious conduct. The careful application of the test is indispensable as how we will
decide the case will make a decisive difference in the life of the respondent who stands
not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where it will be
given the opportunity (a) to examine the sincerity and centrality of respondents claimed
religious belief and practice; (b) to present evidence on the states compelling interest to
override respondents religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondents religious
freedom. The rehearing should be concluded thirty (30) days from the Office of the Court
Administrators receipt of this Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J.
Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

[1]
Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber, P., Equal Separation (1990), p.
17.
[2]
Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668.
[3]
Smith, S., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of Pennsylvania
Law Review, vol. 140(1), November 1991, pp. 149-150.
[4]
Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963).
[5]
Rollo, pp. 5-6.
[6]
Id. at 8.
[7]
Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
[8]
Id. at 101.
[9]
Id. at 100; Exhibit 3, Certificate of Death.
[10]
Id. at 10; Exhibit 1.
[11]
Id. at 11; Exhibit 2.
[12]
Id. at 27-33.
[13]
Id. at 37.
[14]
Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
[15]
Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
[16]
Citing biblical passages, this article addresses the question, Does the validity of a marriage depend
entirely upon its recognition by civil authorities and does their validation determine how Jehovah
God, the author of marriage, views the union? It traces the origins of marriage to the time of the
Hebrews when marriage was a family or tribal affair. With the forming of Israel as a nation, God
gave a law containing provisions on marriage, but there was no requirement for a license to be
obtained from the priesthood nor that a priest or a representative from government be present in
the marriage to validate it. Instead, as long as Gods law was adhered to, the marriage was valid
and honorable within the community where the couple lived. In later Bible times, marriages came
to be registered, but only after the marriage had been officiated, thereby making the government
only a record-keeper of the fact of marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was likewise chiefly a family affair and there
was no requirement of license from the religious or civil authority to make it valid and honorable. It
was conformity to Gods law that was necessary for the marriage to be viewed as honorable within
the congregation. Later, however, the civil authorities came to have more prominence in
determining the validity of a marriage while the role of the congregation waned. Christians cannot
turn their back on this reality in desiring to make their marriage honorable among all, i.e., in the
sight of God and men. However, the view of civil authorities regarding the validity of marriage is
relative and sometimes even contradictory to the standards set by the Bible. For example, in some
lands, polygamy is approved while the Bible says that a man should only have one wife.Likewise,
some countries allow divorce for the slightest reasons while others do not allow divorce. The Bible,
on the other hand, states that there is only one ground for divorce, namely, fornication, and those
divorcing for this reason become free to marry.
To obtain a balanced view of civil authority (or Caesars authority in Biblical terms) regarding marriage, it is
well to understand the interest of civil governments in marriage. The government is concerned with
the practical aspects of marriage such as property rights and weakening genetic effects on children
born to blood relatives, and not with the religious or moral aspects of marriage. Caesars authority
is to provide legal recognition and accompanying protection of marital rights in court systems, thus
a Christian desiring this recognition and rights must adhere to Caesars requirements. However,
God is not bound by Caesars decisions and the Christian should rightly give conscientious
consideration to Caesars marriage and divorce provisions but will always give greatest
consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom. 13:105). . . Thus the
Christian appreciates that, even though Caesars rulings of themselves are not what finally
determine the validity of his marriage in Gods eyes, this does not thereby exempt him from the
Scriptural injunction: Let marriage be honorable among all. (Heb. 13:4) He is obligated to do
conscientiously whatever is within the power to see that his marriage is accorded such honor by
all. Those who wish to be baptized members of the Christian congregation but do not have legal
recognition of their marital union should do all that is possible to obtain such recognition, thereby
removing any doubt as to the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition. For instance, in countries where
divorce is not allowed even on the Scriptural ground of fornication, either because of the dominance
of one religion or other reasons, a man might have left his unfaithful wife and lives with another
 woman with whom he has a family. He may later learn the truth of Gods Word and desire to be
baptized as a disciple of Gods Son, but he cannot obtain divorce and remarry as the national laws
do not allow these. He might go to a land which permits divorce and remarry under the laws of that
land and add honor to his union, but upon returning to his homeland, the law therein might not
recognize the union. If this option is not available to that man, he should obtain a legal separation
from his estranged mate or resort to other legal remedies, then make a written statement to the
local congregation pledging faithfulness to his present mate and declaring his agreement to obtain
a legal marriage certificate if the estranged legal wife should die or if other circumstances should
make possible the obtaining of such registration. If his present mate likewise seeks baptism, she
would also make such a signed statement. (p. 182) In some cases, a person might have initiated
the process of divorce where the law allows it, but it may take a long period to finally obtain it. If
upon learning Bible truth, the person wants to be baptized, his baptism should not be delayed by
the pending divorce proceedings that would make his present union honorable for Bible examples
indicate that unnecessary delay in taking the step of baptism is not advisable (Acts 2:37-41; 8:34-
38; 16:30-34; 22:16). Such person should then provide the congregation with a statement pledging
faithfulness, thereby establishing his determination to maintain his current union in honor while he
exerts effort to obtain legal recognition of the union. Similarly, in the case of an already baptized
Christian whose spouse proves unfaithful and whose national laws do not recognize the God-given
right to divorce an adulterous mate and remarry, he should submit clear evidence to the elders of
the congregation of the mates infidelity. If in the future he decides to take another mate, he can do
this in an honorable way by signing declarations pledging faithfulness where they also promise to
seek legal recognition of their union where it is feasible. This declaration will be viewed by the
congregation as a putting of oneself on record before God and man that the signer will be just as
faithful to his or her existing marital relationship as he or she would be if the union were one
validated by civil authorities. Such declaration is viewed as no less binding than one made before
a marriage officer representing a Caesar government of the world. . . It could contain a statement
such as the following:
I, __________, do here declare that I have accepted __________ as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I therefore make this
declaration pledging faithfulness in this marital relationship. I recognize this relationship as a
binding tie before Jehovah God and before all persons, to be held to and honored in full accord
with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of
this relationship by the civil authorities and if at any future time a change in circumstances makes
this possible I promise to legalize this union.
The declaration is signed by the declarant and by two others as witnesses and the date of declaration is
indicated therein. A copy of the declaration is kept by the persons involved, by the congregation to
which they belong, and by the branch office of the Watch Tower Society in that area. It is also
beneficial to announce to the congregation that a declaration was made for their awareness that
conscientious steps are being undertaken to uphold the honorableness of the marriage
relationship. It must be realized, however, that if the declarant is unable to obtain recognition from
the civil authorities, even if he makes that declaration, whatever consequences result to him as far
as the world outside is concerned are his sole responsibility and must be faced by him. (p. 184) For
instance, should there be inheritance or property issues arising from an earlier marriage, he cannot
seek legal protection with regard to his new, unrecognized union.
[17]
Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-32.
[18]
Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6.
[19]
Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
[20]
Rollo, pp. 239-240; Respondents Memorandum, pp. 1-2; Rollo, pp. 109-110, Maintaining Marriage
Before God and Men, pp. 184-185.
[21]
Rollo, p, 240; Respondents Memorandum, p. 2.
[22]
Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p. 3.
[23]
Id. at 4.
[24]
Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 6.
[25]
A.M. No. P-96-1231, February 12, 1997.
[26]
Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 7.
[27]
Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
[28]
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter
M., The Growth of Religion (1938), p. 22.
[29]
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter
M., The Growth of Religion (1938), p. 29.
[30]
Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution of Religion (1923), pp. 68, 206.
[31]
Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-528.
[32]
Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p. 47.
[33]
Pfeffer, L., supra, p. 4.
[34]
Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in Complete Works of Josephus, p.
500.
[35]
Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
[36]
It may also be said that Moses actually used the concept of a single all-powerful God as a means of
unifying the Hebrews and establishing them as a nation, rather than vice versa. What is important
to note, however, is that the monotheism which served as foundation of Christianity of western
civilization with its consequences in church-state relations was established by Moses of the Bible,
not the Moses of history. Pfeffer, L., supra, p. 5.
[37]
Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p. 24.
[38]
Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[39]
Pfeffer, L., supra, p. 7.
[40]
Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions (1934), p. 108.
[41]
Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[42]
Pfeffer, L., supra, p. 13.
[43]
Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian Church (1940), p. 108.
[44]
Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45]
Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the Great, 14th ed., V, p. 258.
[46]
Pfeffer, L., supra, p. 22.
[47]
Pfeffer, L., supra, p. 23.
[48]
Greene, E., Religion and the State (1941), p. 8.
[49]
Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luthers Primary Works (1885), pp. 194-
185.
[50]
Pfeffer, L., supra, p. 23, citing Acton, History of Freedom in Chrisitianity, in Essays on Freedom and
Power (1949), p. 103.
[51]
Pfeffer, L., supra, pp. 24-25.
[52]
Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[53]
Greene, E., supra, p. 9.
[54]
Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
[55]
Pfeffer, L., supra, p. 26.
[56]
Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church and State in England (1950), p.
93.
[57]
Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949), pp. 674-675 and Garbett, C., pp. 61-
62.
[58]
Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents, 130-135.
[59]
Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243.
[60]
Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[61]
Everson v.Board of Education of the Township of Ewing, et al., 330 U.S. 1 (1947), pp. 8-9.
[62]
Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
[63]
Pfeffer, L., supra, p. 30.
[64]
Beth, L., American Theory of Church and State (1958), p. 3.
[65]
Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66]
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[67]
Pfeffer, L., supra, pp. 92-93.
[68]
Pfeffer, L., supra, p. 96.
[69]
Pfeffer, L., supra, p. 95
[70]
Another estimate of church membership in 1775 is that in none of the colonies was membership in excess
of 35 percent of the population. (Beth, L., American Theory of Church and State [1958], p. 73.)
[71]
Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making, Second Edition (1980), p.
1276.
[72]
Pfeffer, L., supra, pp. 96.
[73]
Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American Dissent (1934), p. 202.
[74]
Pfeffer, L., supra, p. 93.
[75]
Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb, S.H., The Rise of Religious
Liberty in America (1902), p. 485.
[76]
Pfeffer, L., supra, p. 85.
[77]
Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
[78]
Pfeffer, L., supra, p. 87.
[79]
Pfeffer, L., supra, p. 86.
[80]
Pfeffer, L., supra, pp. 88-89.
[81]
Pfeffer, L., supra, p. 101.
[82]
Pfeffer, L., supra, p. 99.
[83]
Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government (edited by C.B:
Macpherson), pp. 8-10.
[84]
Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion in America, 1774-1789 (1924),
pp. 368-369.
[85]
Pfeffer, L., supra, p. 103.
[86]
Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[87]
Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of American Civilization, I (1947), p.
449.
[88]
Drakeman, D., supra, p. 55.
[89]
Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy (1948), p. 267.
[90]
Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in Establishing Religious Liberty
as a Foundation of the American Government, Papers of the American Historical Association, II, p.
26.
[91]
Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92]
Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition in Religion and Education
(1950), pp. 46-47.
[93]
Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion in America, 1774-1789 (1924),
p. 379.
[94]
Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[95]
Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J., The Separation of Church
and State in Virginia (1910), p. 86.
[96]
Beth, L., supra, p. 63.
[97]
Id. at 81-82.
[98]
Id. at 74-75.
[99]
Beth, L., supra, p. 63.
[100]
Id at 63-65.
[101]
Smith, S., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of
Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160.
[102]
Id. at 63-65.
[103]
Smith, S., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of
Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160.
[104]
Beth, L., supra, pp. 63-65.
[105]
Id. at 69.
[106]
Drakeman, D., supra, p. 59.
[107]
Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L., supra, p. 92, 125, citing Kohler,
M.J., The Fathers of the Republic and Constitutional Establishment of Religious Liberty (1930), pp.
692-693.
[108]
Beth, L., supra, p. 71.
[109]
Berman, H., Religious Freedom and the Challenge of the Modern State, Emory Law Journal, vol. 39,
Winter 1990-Fall 1990, pp. 151-152.
[110]
Monsma, S., The Neutrality Principle and a Pluralist Concept of Accommodation in Weber, P., Equal
Separation (1990), p. 74.
[111]
Berman, H., supra, pp. 151-152.
[112]
McCoy, T., A Coherent Methodology for First Amendment Speech and Religion Clause Cases,
Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1340.
[113]
Weber, P., Neutrality and first Amendment Interpretation in Equal Separation (1990), pp. 5-7. See
also Kauper, P., Religion and the Constitution (1964), p. 99.
[114]
Monsma, S., supra, p. 73.
[115]
See Carter, S., The Resurrection of Religious Freedom, Harvard Law Review (1993), vol. 107(1), p. 118,
128-129.
[116]
Emanuel, S., Constitutional Law (1992), p. 633.
[117]
Carter, S., supra, p. 118, 140.
[118]
Sullivan, K., Religion and Liberal Democracy, The University of Chicago Law Review (1992), vol. 59(1),
p. 195, 214-215.
[119]
Kauper, P., Religion and the Constitution (1964), pp, 24-25.
[120]
133 U.S. 333 (1890).
[121]
133 U.S. 333 (1890), p. 342.
[122]
322 U.S. 78 (1944).
[123]
United States v. Ballard, 322 U.S. 78 (1944), p. 86.
[124]
Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law, Second Edition (1999), pp. 522-
523.
[125]
367 U.S. 488 (1961).
[126]
380 U.S. 163 (1965).
[127]
Stephens, Jr., supra, p. 645.
[128]
Id. at 524.
[129]
Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of Employment Security, 489 U.S. 829
(1989).
[130]
McCoy, T., A Coherent Methodology for First Amendment Speech and Religion Clause Cases,
Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1336-1337.
[131]
Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber, P., Equal Separation (1990), p.
20.
[132]
Kauper, P., supra, p, 13.
[133]
Neuhaus, R., A New Order of Religious Freedom, The George Washington Law Review (1992), vol. 60
(2), p. 620, 626-627.
[134]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 168.
[135]
McCoy, T., supra, p. 1335, 1336-1337.
[136]
Neuhaus, R., A New Order of Religious Freedom, The George Washington Law Review (1992), vol. 60
(2), p. 620, 626-627.
[137]
Monsma, S., supra, p. 88, citing Neuhaus, R., Contending for the Future: Overcoming the Pfefferian
Inversion, in The First Amendment Religion Liberty Clauses and American Public Life, p. 183.
[138]
Carter, S., supra, p. 118, 134-135.
[139]
Lupu, I., The Religion Clauses and Justice Brennan in Full, California Law Review (1999), vol. 87(5), p.
1105, 1114.
[140]
Everson v. Board of Education, 330 US 1 (1946), p. 15.
[141]
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[142]
See McCoy, T., supra, p. 1335, 1336.
[143]
98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 49; Drakeman,
Church-State Constitutional Issues (1991), p. 2.
[144]
Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
[145]
Id. at 163.
[146]
98 U.S. 145, 166.
[147]
McCoy, T., supra, p. 1335, 1344-45.
[148]
Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), p. 1069.
[149]
136 U.S. 1 (1890).
[150]
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[151]
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[152]
367 U.S. 488 (1961).
[153]
322 U.S. 78, 86 (1944).
[154]
310 U.S. 296 (1940).
[155]
Id. at 310.
[156]
Id at 303-304.
[157]
319 U.S. 157 (1943).
[158]
340 U.S. 268 (1951).
[159]
452 U.S. 640 (1981).
[160]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
[161]
133 U.S. 333, 345.
[162]
McCoy, T., supra, p. 1335, 1344-45.
[163]
310 U.S. 586 (1940).
[164]
319 U.S. 624 (1943).
[165]
Id. at 634.
[166]
Id. at 639.
[167]
McCoy, T., supra, p. 1335, 1345-46.
[168]
See Bloostein, M., The Core-Periphery Dichotomy in First Amendment Free Exercise Clause Doctrine:
Goldman v. Weinberger, Bowen v. Roy, and OLone v. Estate of Shabbaz,z Cornell Law Review,
vol. 72 (4), p. 827, 828.
[169]
366 U.S. 599 (1961).
[170]
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[171]
374 U.S. 398 (1963).
[172]
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[173]
Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
[174]
Id. at 406.
[175]
Lupu, I., supra, p. 1105, 1110.
[176]
McCoy, T., supra, p. 1335, 1346-1347.
[177]
450 U.S. 707 (1981).
[178]
480 U.S. 136 (1987).
[179]
455 U.S. 252 (1982).
[180]
United States v. Lee, 455 U.S. 252 (1982), p. 260.
[181]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
[182]
406 U.S. 205 (1972).
[183]
Id. at 214-215, 219-220.
[184]
494 U.S. 872 (1990).
[185]
McConnell, M., supra, p. 685, 726.
[186]
McCoy, T., supra, p. 1335, 1350-1351.
[187]
Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and 1191. See also Sullivan, K., Religion
and Liberal Democracy, The University of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[188]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 139.
[189]
Sullivan, K., Religion and Liberal Democracy, The University of Chicago Law Review (1992), vol. 59(1),
p. 195, 216.
[190]
Carter, S., supra, p. 118.
[191]
Rosenzweig, S., Restoring Religious Freedom to the Workplace: Title VII, RFRA and Religious
Accommodation, University of Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516.
[192]
138 L.Ed. 2d 624 (1994).
[193]
508 U.S. 520 (1993).
[194]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
[195]
330 U.S. 1 (1946).
[196]
Drakeman, D., supra, p. 4-6.
[197]
Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.
[198]
98 U.S. 164 (1878).
[199]
Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
[200]
Id. at 164.
[201]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
[202]
Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
[203]
Id. at 18.
[204]
403 U.S. 602 (1971).
[205]
Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
[206]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[207]
370 U.S. 421 (1962).
[208]
374 U.S. 203 (1963).
[209]
Id.
[210]
Id. at 222.
[211]
Witt, E. (ed.), supra, p. 93.
[212]
472 U.S. 38 (1985).
[213]
333 U.S. 203 (1948).
[214]
343 U.S. 306 (1952).
[215]
Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[216]
366 U.S. 420 (1961).
[217]
Id. at 451-452.
[218]
463 U.S. 783 (1983).
[219]
Marsh v. Chambers, 463 US 783 (1983).
[220]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
[221]
465 U.S. 668 (1984).
[222]
397 U.S. 664 (1970).
[223]
Id. at 673.
[224]
Id.
[225]
Id. at 676.
[226]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 119-120.
[227]
Drakeman, D., supra, p. 51.
[228]
Id. at 53.
[229]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
[230]
Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State: Historical Fact and Current
Fiction. p. 50.
[231]
Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds., The Debates and Proceedings
in the Congress of the United States, Compiled from Authentic Materials (Annala), vol. 1, pp. 949-
950.
[232]
Beth, L., supra, p. 74.
[233]
Drakeman, supra, pp. 57, 82.
[234]
Buzzard, L., Ericsson, S., supra, p. 46.
[235]
Beth, L., supra, p. 72.
[236]
Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[237]
Beth, L., supra, p. 71.
[238]
The Constitution and Religion, p. 1541.
[239]
Id. at 1539.
[240]
Weber, P., Neutrality and First Amendment Interpretation in Equal Separation (1990), p. 3.
[241]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 120.
[242]
Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
[243]
The Constitution and Religion, p. 1541, citing Kurland, Of Church and State and the Supreme Court, 29
U.Chi.L.Rev. 1, 5 (1961).
[244]
Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and the Law (1962), p. 18.
[245]
Smith, S., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of
Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 186.
[246]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[247]
Buzzard, L., Ericsson, S., supra, p. 60.
[248]
Kelley, D., supra, p. 1189.
[249]
Monsma, S., supra, p. 74.
[250]
Id. at 75.
[251]
Smith, S., supra, p. 149, 159.
[252]
Drakeman, supra, p. 54.
[253]
Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254]
Smith, S., supra, p. 149, 159.
[255]
Id. at 149, 159-160.
[256]
Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257]
Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and Roemer: From Separation to Dtente in
Church-State Relations, 55 North Carolina Law Review (April 1977), 563-75.
[258]
Buzzard, L., Ericsson, S., supra, p. 51.
[259]
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[260]
Buzzard, L., Ericsson, S., supra, p. 61.
[261]
Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262]
Kelley, D., supra, p. 34.
[263]
Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion (1970), p. 21.
[264]
Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of Religion (1963), pp. xxvii, xxviii.
[265]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
[266]
Berman, H., supra, p. 162.
[267]
The Constitution and Religion, p. 1569.
[268]
McCoy, T., supra, p. 1335, 1338-1339.
[269]
McConnell, M., Accommodation of Religion: An Update and a Response to the Critics, The George
Washington Law Review (1992), vol. 60 (3), p. 685, 688.
[270]
Id.
[271]
Id. at 689.
[272]
Id. at 690-694, 715.
[273]
Id. at 686.
[274]
Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663, 679 (1989) (Kennedy, J.,
concurring); Lynch v. Donnelly, 465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792
(1983).
[275]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 139, 184.
[276]
Id. at 174.
[277]
Neuhaus, R., A New Order of Religious Freedom, The George Washington Law Review (1992), vol. 60
(2), p. 620, 631.
[278]
Buzzard, L., Ericsson, S., supra, pp. 61-62.
[279]
Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional Law, 2 nd ed. (1988), p.
1251. See also Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp. 1067-
1069.
[280]
Id. at 633.
[281]
Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[282]
McConnell, M., Accommodation of Religion: An Update and a Response to the Critics, The George
Washington Law Review (1992), vol. 60 (3), p. 685, 715.
[283]
Buzzard, L., Ericsson, S., supra, pp. 61-63.
[284]
McConnell, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review
, vol. 103 (1990), p. 1410, 1416-7.
[285]
Buzzard, L., Ericsson, S., supra, p. 70.
[286]
McConnell, M., Accommodation of Religion: An Update and a Response to the Critics, The George
Washington Law Review (1992), vol. 60 (3), p. 685, 735.
[287]
Buzzard, L., Ericsson, S., supra, pp. 68-71.
[288]
Lupu, I., supra, p. 743, 775.
[289]
Id. at 775.
[290]
Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[291]
Buzzard, L., Ericsson, S., supra, p. 68.
[292]
Lupu, I., supra, p. 743, 776.
[293]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
[294]
Martinez, H., The High and Impregnable Wall of Separation Between Church and State, Philippine Law
Journal (1962), vol. 37(5), p. 748, 766.
[295]
Article II.
[296]
Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), p. 284.
[297]
Coquia, J., Church and State Law and Relations, p. 52, citing Article X of the Treaty of Paris. The
territories referred to were Cuba, Puerto Rico, Guam, the West Indies and the Philippine Islands.
[298]
Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la Republica Filipina promulgada el dia
22 de Enero de 1899 (Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
[299]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 13, 148.
[300]
Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With Philippine Organic Laws 10.
[301]
25 Phil. 273 (1913).
[302]
Id. at 276.
[303]
Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd Congress (1934).
[304]
Laurel, S., Proceedings of the Philippine Constitutional Convention, vol. III (1966), pp. 654-655.
[305]
Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p. 164.
[306]
Id. at 150.
[307]
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
[308]
Baddiri, E., Islam and the 1987 Constitution: An Issue on the Practice of Religion, 45 Ateneo Law Journal
161 (2001), p. 208, citing Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978).
[309]
Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310]
64 Phil 201 (1937).
[311]
101 Phil. 386 (1957).
[312]
Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[313]
106 Phil. 2 (1959).
[314]
Id. at 9-10.
[315]
Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 225, Footnote
38.
[316]
319 U.S. 103.
[317]
234 SCRA 630 (1994).
[318]
493 U.S. 378 (1990).
[319]
106 Phil. 2 (1959).
[320]
106 Phil. 2 (1959), p. 10.
[321]
Id. at 11-12.
[322]
Id. at 14.
[323]
Id. at 25.
[324]
Id. at 24-25.
[325]
110 Phil 150.
[326]
59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93 (1974); Gonzalez v. Central
Azucarera de Tarlac Labor Union, 139 SCRA (1985).
[327]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54 (1974), p. 72.
[328]
Id. at 73.
[329]
64 Phil 201.
[330]
392 US 236.
[331]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332]
Id. at 75.
[333]
Id.
[334]
61 SCRA 93 (1974).
[335]
80 SCRA 350 (1977).
[336]
139 SCRA 30 (1985).
[337]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing Cantwell v. Connecticut, 310
U.S. 296.
[338]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
[339]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[340]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting Opinion of Justice Teehankee.
[341]
219 SCRA 256 (1993), March 1, 1993.
[342]
Id. at 270-271.
[343]
Id. at 271-272.
[344]
Id. at 272.
[345]
Id. at 272-273.
[346]
Id. at 270.
[347]
Id. at 269.
[348]
259 SCRA 529 (1996).
[349]
Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[350]
Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[351]
Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff, Speech, Harm and Self-Government:
Understanding the Ambit of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453
(1991).
[352]
Id.
[353]
Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354]
This argument was a central theme in John Lockes A Letter Concerning Toleration, which strongly
influenced the thinking of many Americans, including Jefferson and Madison. (Smith, S., The Rise
and Fall of Religious Freedom in Constitutional Discourse, University of Pennsylvania Law Review,
vol. 140[1], November 1991, p. 149, 155).
[355]
Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 233.
[356]
Id. at 234.
[357]
64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the Philippines: A Commentary
(1987), p. 234.
[358]
An Act Appropriating the Sum of Sixty Thousand Pesos and Making the Same Available out of any
Funds in the Insular Treasury not otherwise Appropriated for the Cost of Plates and Printing of
Postage Stamps with New Designs, and for other Purposes.
[359]
Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360]
Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361]
104 SCRA 510 (1981).
[362]
86 SCRA 413 (1978).
[363]
367 U.S. 488 (1961).
[364]
Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365]
96 Phil. 417 (1955).
[366]
45 Am. Jur. 77.
[367]
96 Phil 417 (1955), p. 426.
[368]
Id. at 441, citing American authorities.
[369]
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370]
Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371]
Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372]
Walz v. Tax Commission, supra, p. 668.
[373]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
[374]
Drakeman, D., supra, p. 127.
[375]
Buzzard, L. and Ericsson, S., supra, p. 75.
[376]
Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), pp. 288-
289.
[377]
Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378]
Martin, Statutory Construction (1979), p. 210.
[379]
Aruego, J., supra, pp. 331-337.
[380]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 154-155, citing
Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, pp. 1550, 1552.
[381]
Aruego, J., supra, p. 337.
[382]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), p. 153.
[383]
Id. at 153, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, p.
1539.
[384]
Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4,
pp. 1541-1543.
[385]
Aruego, J., supra, pp. 340-345.
[386]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 156-157, citing
Escareal (ed.), Constitutional Convention Record, vol. 10 (1967), p. 29.
[387]
Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp. 627-629.
[388]
Martin, supra, p. 218.
[389]
Aglipay v. Ruiz, supra, p. 206.
[390]
Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1 (1952), pp. 269-270.
[391]
Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church
and State of the 1971 Constitutional Convention, p. 18.
[392]
Bernas, J., Background paper for reconsideration of the religion provisions of the constitution (1971),
pp. 41-43.
[393]
Tingson, J., Report of the Committee on Church and State of the 1971 Constitutional Convention Report,
p. 5.
[394]
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406, citing Records of the Constitutional
Commission, vol. II, pp. 193-194.
[395]
Records of the Constitutional Commission, vol. 4, p. 362.
[396]
Id. at 358.
[397]
Id. at 359.
[398]
Id. at 973.
[399]
Records of the Constitutional Commission, vol. 1, p. 102.
[400]
Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268.
[401]
Cruz, I., Constitutional Law (1995), p. 167.
[402]
Martinez, H., supra, p. 768-772.
[403]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 169.
[404]
Martinez, H., supra, p. 773.
[405]
Neuhaus, R., supra, p. 630.
[406]
Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the University of Virginia, in The
Complete Jefferson (Saul K. Padover ed., 1969), p. 957, 958.
[407]
Neuhaus, R., supra, p. 630.
[408]
Carter, S., supra, pp. 140-142.
[409]
Cruz, I., Constitutional Law (1995), p. 178.
[410]
Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v. Bucatcat, 380 Phil. 555
(2000); Navarro v. Navarro, 339 SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997);
Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil. 49 (1985).
[411]
68 SCRA 354 (1975).
[412]
305 SCRA 469 (1999).
[413]
Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
[414]
Devlin, P., The Enforcement of Morals (1965), p. 10.
[415]
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
[416]
Devlin, P., supra, 13.
[417]
Neuhaus, R., supra, pp. 621, 624-625.
[418]
McConnell, M., Religious Freedom at a Crossroads, The University of Chicago Law Review (1992), vol.
59(1), p. 115, 139.
[419]
Neuhaus, R., supra, pp. 624-625.
[420]
Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The Path of the Law, 10 Harv. L.
Rev., 457, 459 (1897).
[421]
Id. at 247.
[422]
Greenwalt, K., supra, p. 272.
[423]
Buzzard, L. and Ericsson, S., supra, p. 31.
[424]
Devlin, P., supra, pp. 19-20.
[425]
Id. at 247.
[426]
210 SCRA 471 (1992).
[427]
Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing Aquino, The Revised Penal
Code, 1987 Edition, Vol. I, pp. 11-12, citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note
also Justice Pablos view in People v. Piosca and Peremne, 86 Phil. 31.
[428]
Devlin, P., supra, pp. 6-7.
[429]
Id. at 19.
[430]
Article 334 of the Revised Penal Code provides, viz:
Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal dwelling, or shall have
sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall
cohabit with her in any other place, shall be punished by prision correccional in its minimum and
medium period.
The concubine shall suffer the penalty of destierro.
[431]
Article 266-A of the Revised Penal Code.
[432]
Rule 110 of the Revised Rules of Criminal Procedure, as amended provides in relevant part, viz:
The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense
or pardoned the offenders.
[433]
Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186 (1956), pp. 202-203, citing Report
of the Code Commission on the Proposed Civil Code of the Philippines, pp. 40-41.
[434]
Carter, S., supra, p. 138.
[435]
Sullivan, K., supra, pp. 197-198.
[436]
Rule 1.01 of the Code of Professional Responsibility provides that, (a) lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)
[437]
Title Six of the Revised Penal Code is entitled Crimes against Public Morals and includes therein
provisions on gambling and betting. (emphasis supplied)
[438]
The New Civil Code provides, viz:
Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or
good customs or prejudicial to a third person with a right recognized by law.
Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they
may deem convenient, provided that are not contrary to law, morals, good customs, public order,
or public policy.
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy; x x x (emphasis supplied)
[439]
Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as part of the curricula.
They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights,
appreciation of the role of national heroes in the historical development of the country, teach the
rights and duties of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency.(emphasis supplied)
[440]
To illustrate the distinction between public or secular morality and religious morality, we take the example
of a judge. If the public morality of a society deems that the death penalty is necessary to keep
society together and thus crystallizes this morality into law, a judge might find himself in a conflict
between public morality and his religious morality. He might discern that after weighing all
considerations, his religious beliefs compel him not to impose the death penalty as to do so would
be immoral. If the judge refuses to impose the death penalty where the crime warrants it, he will be
made accountable to the state which is the authority in the realm of public morality and be held
administratively liable for failing to perform his duty to the state. If he refuses to act according to
the public morality because he finds more compelling his religious morality where he is answerable
to an authority he deems higher than the state, then his choice is to get out of the public morality
realm where he has the duty to enforce the public morality or continue to face the sanctions of the
state for his failure to perform his duty. See Griffin, L., The Relevance of Religion to a Lawyers
Work: Legal Ethics, Fordham Law Review (1998), vol. 66(4), p. 1253 for a discussion of a similar
dilemma involving lawyers.
[441]
Sullivan, K., supra, p. 196.
[442]
Smith, S., supra, pp. 184-185. For a defense of this view, see William P. Marshall, We Know It When
We See It: The Supreme Court and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended
criticism of this position, see Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions:
Establishment Neutrality and the No Establishment Test, 86 Mich. L. Rev. 266 (1987).
[443]
Ostrom, V., Religion and the Constitution of the American Political System, Emory Law Journal, vol.
39(1), p. 165, citing 1 A. Tocqueville, Democracy in America (1945), p. 305.
[444]
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[445]
Devlin, P., supra, p. 22.
[446]
329 U.S. 14 (1946).
[447]
Cleveland v. United States, 329 U.S. 14, p. 16.
[448]
Reynolds v. United States, supra, p. 164.
[449]
Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[450]
Id.
[451]
226 SCRA 193 (1993).
[452]
Id. at 199.
[453]
Annexes A and B of the Report and Recommendation of Executive Judge Bonifacio Sanz Maceda.
[454]
Cruz, I., supra, p. 176.

SECOND DIVISION

RENATO REYES SO, G.R. No. 150677

Petitioner,
Present:

QUISUMBING, Chairperson,
*
YNARES-SANTIAGO,
VELASCO, JR.,
**
- versus - LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:

LORNA VALERA, June 5, 2009

Respondent.
x -------------------------------------------------------------------------------------- x

DECISION

BRION, J.:

For our review is the Petition for Review on Certiorari[1] filed by petitioner Renato
Reyes So (petitioner) against the Decision dated July 4, 2001[2] and the Resolution
dated October 18, 2001[3] of the Court of Appeals (CA) in CA-G.R. CV No.
65273. The challenged decision reversed the decision[4] of the Regional Trial Court
(RTC), Branch 143, Makati City declaring the marriage of the petitioner and
respondent Lorna Valera (respondent) null and void on the ground of the latters
psychological incapacity under Article 36 of the Family Code. The assailed
resolution denied the petitioners motion for reconsideration.

ANTECEDENT FACTS

The petitioner and the respondent first met at a party in 1973 after being
introduced to each other by a common friend. The petitioner at that time was a 17-
year old high school student; the respondent was a 21-year old college student. Their
meeting led to courtship and to a 19-year common-law relationship,[5] culminating
in the exchange of marital vows at the Caloocan City Hall on December 10,
1991.[6] They had three (3) children (Jeffrey, Renelee, and Loni)[7] in their
relationship and subsequent marriage.

On May 14, 1996, the petitioner filed with the RTC a petition for the declaration of
the nullity of his marriage with the respondent.[8] The case was docketed as JDRC
Case No. 96-674. He alleged that their marriage was null and void for want of the
essential and formal requisites. He also claimed that the respondent was
psychologically incapacitated to exercise the essential obligations of marriage, as
shown by the following circumstances: the respondent failed and refused to cohabit
and make love with him; did not love and respect him; did not remain faithful to
him; did not give him emotional, spiritual, physical, and psychological help and
support; failed and refused to have a family domicile; and failed and refused to enter
into a permanent union and establish conjugal and family life with him.[9]

The petitioner presented testimonial and documentary evidence to

substantiate his charges.
 The petitioner testified that he and the respondent eloped two (2) months after
meeting at a party.[10] Thereafter, they lived at the house of his mothers friend in
Bulacan, and then transferred to his parents house in Caloocan City. They stayed
there for two (2) months before transferring to Muntinlupa City.[11]

The petitioner likewise related that respondent asked him to sign a blank
marriage application form and marriage contract sometime in 1986. He signed these
documents on the condition that these documents would only be used if they decide
to get married. He admitted not knowing what happened to these documents, and
maintained that no marriage ceremony took place in 1991.[12] As noted below, the
petitioner, however, submitted a certified true copy of their marriage contract as part
of his documentary evidence.

The petitioner further alleged that the respondent did not want to practice her
profession after passing the dental board exam; and that she sold the dental
equipment he bought for her.[13] He also claimed that when he started his own
communication company, the respondent disagreed with many of his business
decisions; her interference eventually led to many failed transactions with
prospective clients.[14]

The petitioner narrated that he often slept in the car because the respondent
locked him out of the house when he came home late. He felt embarrassed when his
employees would wake him up inside the car. When he confronted the respondent
the next morning, she simply ignored him. He also claimed that respondent did not
care for their children, and was very strict with clients. Moreover, the respondent
went out with his employees to gamble whenever there were no clients.

Lastly, he testified that sometime in 1990, he found all his things outside their
house when he came home late after closing a deal with a client. He left their house
and stayed at a friends house for two (2) months. He tried to go back to their house,
but the respondent prevented him from entering. The respondent also told him she
did not love him anymore. He attempted to reconcile with her for the sake of their
children, but she refused to accept him back.[15]

Summons was served on the respondent on July 17, 1996, but she failed to
file an answer. The RTC ordered the public prosecutor to investigate if there had
been collusion between the parties and to intervene for the State to see to it that
evidence was not fabricated. Prosecutor Andres N. Marcos manifested that he was
unable to make a ruling on the issue of collusion since the respondent failed to appear
before him. [16]

Aside from his testimony, the petitioner also presented certified true copies of
the birth certificate of their three children;[17] certified true copy of their marriage
contract;[18] and the testimony, original curriculum vitae,[19] and psychological
report[20] of clinical psychologist Dr. Cristina Rosello-Gates (Dr. Gates).

In her Psychological Report, Dr. Gates noted as follows:

xxx

PARTICULARS

- Parties met in a party when Petitioner was 17 years and Respondent

was 21 years old; both were studying but Petitioner was also working in
his fathers business;

- During the first time they met, Respondent hugged Petitioner and
stayed close to him; she also taught him how to smoke marijuana; after
their first meeting, Respondent would fetch petitioner from school, and
they would go out together;

- Within the next two months, Respondent dropped out of school without
informing her parents; she applied for a job and was purportedly raped
by her employer;

- When Respondents parents found out that she quit school, she sought
petitioners help to look for a place to stay; Renato brought her to his
 friends house in Bulacan but her hosts did not like her frequent outings
and parties; Respondent then asked Petitioner to live with her in a rented
apartment; she told him to execute an Affidavit of Loss so he can
withdraw his savings with a new bankbook without the knowledge of
his father;

- Parties were fetched by Petitioners parents to live with them in

Caloocan; petitioner sent Respondent to school to wean her away from
her friends; when she passed the Dentistry Board Examinations, he put
up a dental clinic for her; after 2 months, she quit her dental practice and
joined Petitioner in his communications business;

- Respondent had problems dealing with Petitioners clients; she

interfered with his decisions, and resented his dealings with clients
which would, at times, last till late at night; one incident in 1990,
Respondent locked Petitioner out of house prompting the latter to sleep
in the car; other similar incidents followed where employees would
wake up Petitioner when they report for work; one night, Petitioner
found all his things thrown out of the house by Respondent;

- Respondent was not the one who took care of their children; the second
child, for instance, cries whenever said child sees Respondent as the
latter is not familiar with the former;

- While parties lived together since 1973, they applied for a marriage
license only in 1986; Respondent asked Petitioner to sign both license
and marriage contract without any public appearance at City Hall; their
marriage was registered in 1991 after the couple separated.[21]

and concluded that:

An examination of the parties respective family background and

upbringing, as well as the events prior to their marriage point to
psychological impairment on the part of Respondent Lorna Valera.

From a simple existence in the province, Lorna Valera was thrust in

the big city for her college education. It was in Sampaloc, Manila where she
lived and groped, and eventually found herself in bad company. Thus, her
so-called culture shock was abated by pot sessions lasting several days at a
time making her temporarily forget the harsh reality in the metropolis. Her
escapist and regressive tendencies stunted her psychological growth and
prevented her from fully functioning as a responsible adult.

Based on the Diagnostic and Statistical Manual (DSM IV), the

international standards of psychological disorders, Respondent Lorna
 Valera is plagued with an Adjustment Disorder as manifested in her
impulsiveness, lack of restraint, lack of civility and a sense of decency in
the conduct of her life. Compulsive Behavior Patterns are also evident in
her marijuana habit, gambling and habitual squandering of Petitioners
money. Lorna Valeras Adjustment Disorder and Compulsive Behavior
Patterns were already existing prior to her marriage to Petitioner Renato So.
Continuing up to the present, the same appears to be irreversible.[22]

The RTC Ruling

The RTC nullified the marriage of petitioner and respondent in its decision
of November 8, 1999. The decision, a relatively short one at four (4) pages, single-
spaced, including the heading and the signature pages, made a short summary of the
testimonies of the witness with the statements that

Petitioner and respondent became common law husband and wife from 1973 to
1991. Out of this relationship were born three children, namely Jeffrey, Renelee
and Lino all surnamed Varela.

Sometime in 1987 petitioner was induced by respondent to sign a blank Marriage

Contract and a blank application for marriage license. The petitioner freely signed
the documents with the belief that the documents will be signed only when they get
married.[23]

Thereafter, the RTC decision wholly dwelt on the question of the respondents
psychological incapacity based on the testimony of the petitioner and Dr.
Gates, his expert witness.The decisions concluding

paragraphs stated:
Based on the foregoing, the Court is convinced that respondent Lorna Valera is
psychologically incapacitated to comply with the essential marital obligation of
marriage, which incapacity existed at the time of the celebration thereof (Art. 36 F.C.).

It should be borne in mind that marriage is a special contract of permanent union and
the foundation of the Family. The husband and the wife are obliged to live together, observe
mutual help and support (Art. 68 F.C.). It includes the giving of love and affection, advice
 and counsel, companionship and understanding (Art. 230 F.C.). Respondent failed to
observe all these things.[24]

The dispositive portion of the decision that immediately followed reads:

Wherefore, judgment is hereby rendered in favor of petitioner and against
respondent:

1. Declaring respondent psychologically incapacitated to comply with

the essential marital obligations under Art. 36 of the Family Code;

2. Declaring the marriage contracted by Renato Reyes So and Lorna

Valero on December 10, 1991, null and void ab initio;

3. Dissolving the conjugal partnership between the spouses in accordance

with the pertinent provisions of the Family Code;

4. Awarding the custody of the minor children to petitioner.

xxx

SO ORDERED.[25]

The CA Decision

The Republic of the Philippines (Republic), through the Office of the Solicitor
General, appealed the RTC decision to the CA, docketed as CA-G.R. CV No.
65273. The CA, in its Decision dated July 4, 2001, reversed and set aside the RTC
decision and dismissed the petition for lack of merit.[26]

The CA ruled that the petitioner failed to prove the respondents psychological
incapacity. According to the CA, the respondents character, faults, and defects did
not constitute psychological incapacity warranting the nullity of the parties marriage.
The CA reasoned out that while respondent appears to be a less than ideal mother to
her children, and loving wife to her husband, these flaws were not physical
manifestations of psychological illness. The CA further added that although the
respondents condition was clinically identified by an expert witness to be an
Adjustment Disorder, it was not established that such disorder was the root cause of
her incapacity to fulfill the essential marital obligations. The prosecution also failed
to establish that respondents disorder was incurable and permanent in such a way as
to disable and/or incapacitate respondent from complying with obligations essential
to marriage.

The CA likewise held that the respondents hostile attitude towards the petitioner
when the latter came home late was a normal reaction of an ordinary housewife
under a similar situation; and her subsequent refusal to cohabit with him was not due
to any psychological condition, but due to the fact that she no longer loved him.

Finally, the CA concluded that the declaration of nullity of a marriage was not proper
when the psychological disorder does not meet the guidelines set forth in the case
of Molina.

The petitioner moved to reconsider the decision, but the CA denied his motion in its
resolution[27] dated October 18, 2001.

The Petition and Issues

The petitioner argues in the present petition that the CA seriously

erred[28]

1. in reversing the RTC decision without ruling on the trial courts factual and
conclusive finding that the marriage between petitioner and respondent
was null and void ab initio;

2. in departing from the accepted and usual course of judicial proceedings

that factual findings of the trial courts are entitled to great weight and
respect and are not disturbed on appeal; and
 3. in totally disregarding the undisputed fact that respondent is
psychologically incapacitated to perform the essential marital
obligations.[29]

The Republic, as intervenor-appellee, alleged in its comment that: (a) the trial
court never made a definitive ruling on the issue of the absence of the formal and
essential requisites of the parties marriage; and (b) petitioner was not able to
discharge the burden of evidence required in Molina.[30]

The petitioner filed a reply;[31] thereafter, both parties filed their respective
memoranda reiterating their arguments. Other than the issue of the absence of the essential
and formal requisites of marriage, the basic issue before us is whether there exists sufficient
ground to declare the marriage of petitioner and respondent null and void.

THE COURTS RULING

We deny the petition for lack of merit, and hold that no sufficient basis exists to annul the
marriage pursuant to Article 36 of the Family Code. No case of lack of essential and formal
requisites of marriage has been proven or validly ruled upon by the trial court.

1. The CA did not err in not ruling on the alleged lack

of the essential and formal requisites of marriage

The petitioner cites as ground for this appeal the position that the CA reversed and set
aside the RTC decision without touching on the trial courts ruling that there was absence of
the essential and formal requisites of marriage.

We find this argument baseless and misplaced for three basic reasons.
 First. The argument stems from the mistaken premise that the RTC definitively ruled
that petitioners marriage to respondent was null and void due to the absence of the essential
and formal requisites of marriage.

A careful examination of the RTC decision shows that the trial court did not discuss,
much less rule on, the absence of the formal and essential requisites of marriage; it simply
recited the claim that [S]ometime in 1987 petitioner was induced by respondent to sign
a blank Marriage Contract and a blank application for marriage license. The
petitioner freely signed the documents with the belief that the documents will be
signed only when they get married. The trial court did not even mention the certified
true copy of the Marriage Contract signed by the officiating minister and registered
in the Civil Registry of Kalookan City. The petitioner introduced and marked this
copy as his Exhibit D to prove that there is a marriage contract registered in the Civil
Registry of Kalookan City between petitioner and respondent.[32]

Out of this void came the dispositive portion [D]eclaring the marriage
contracted by Renato Reyes So and Lorna Valera on December 10, 1991 null and
void.[33] Faced with an RTC decision of this tenor, the CA could not have ruled on
the validity of the marriage for essential and formal deficiencies, since there was no
evidence and no RTC ruling on this point to evaluate and rule upon on appeal. Even
if it had been a valid issue before the CA, the RTCs declaration of nullity should be
void for violation of the constitutional rule that [No] decision shall be rendered by
any court without expressing therein clearly and distinctly the facts and the law on
which it is based.[34]

Second. The same examination of the RTC decision shows that it concerned
itself wholly with the declaration of the nullity of the marriage based on Article 36
of the Family Code. After its recital of the testimonies of witnesses, part of which
are the facts relied upon to support the claimed psychological incapacity, the
decision dwelt on the evidence of Dr. Gates, the expert witness, and, from there,
proceeded to its conclusion that psychological incapacity existed. In this light, the
dispositive portion declaring the marriage...on December 10, 1991, [is] null and
void, must be based on psychological incapacity as found by the trial court, not on
the absence of the essential and formal requisites of marriage.

Third. We note that the petitioner himself offered the Marriage Contract as
evidence that it is registered with the Civil Registry of Kalookan City. [35] As a duly
registered document, it is a public document, and is prima facie evidence of the facts
it contains, namely, the marriage of the petitioner with the respondent. To contradict
these facts and the presumption of regularity in the documents favor, the petitioners
contrary evidence must be clear, convincing, and more than merely
preponderant.[36] To be sure, a married couple cannot simply nullify their marriage
through the non-appearance of one spouse and the uncorroborated declaration by the
other spouse that the marriage did not really take place. If the biased and interested
testimony of a witness is deemed sufficient to overcome a public instrument, drawn
up with all the formalities prescribed by the law, then there will have been
established a very dangerous doctrine that would throw the door wide open to
fraud.[37] At the very least, the declaration that the marriage did not take place must
be supported by independent evidence showing a physical impossibility, a forgery,
or the disavowal by the supposed participants, to name a few possible reasons.

2. Petitioner failed to establish respondents

psychological incapacity

As the CA did, we hold that the totality of evidence presented by petitioner

failed to establish the respondents psychological incapacity to perform the essential
marital obligations.
 The petition for declaration of nullity of marriage is anchored on Article 36 of
the Family Code which provides that a marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization. In Santos v. Court of
Appeals,[38] the Court first declared that psychological incapacity must be
characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. It should
refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage. It must be confined to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage.[39]

More definitive guidelines in the interpretation and application of Article

36 of the Family Code of the Philippines were handed down by this Court
in Republic v. Court of Appeals[40] (the Molina case) as follows:
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity. This is rooted in the fact that
both our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the Family, recognizing
it as the foundation of the nation. It decrees marriage as legally inviolable, thereby
protecting it from dissolution at the whim of the parties. Both the family and
marriage are to be protected by the state.
The Family Code echoes this constitutional edict on marriage and the family
and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision. Article 36 of the Family Code requires
that the incapacity must be psychological - not physical, although its manifestations
and/or symptoms may be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to such an extent that the
person could not have known the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the application of the provision
under the principle of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully explained.
Expert evidence may be given by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at the time of the
celebration of the marriage. The evidence must show that the illness was existing
when the parties exchanged their I do's. The manifestation of the illness need not
be perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or even relative only in
regard to the other spouse, not necessarily absolutely against everyone of the same
sex. Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. x x x
(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, mild characteriological
peculiarities, mood changes, occasional emotional outbursts cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68
up to 71 of the Family Code as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be handed
down unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition, as the
case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from
the date the case is deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.
 A later case, Marcos v. Marcos,[41] further clarified that there is no
requirement that the defendant/respondent spouse should be personally examined by
a physician or psychologist as a condition sine qua non for the declaration of nullity
of marriage based on psychological incapacity. Accordingly, it is no longer
necessary to introduce expert opinion in a petition under Article 36 of the Family
Code if the totality of evidence shows that psychological incapacity exists and
its gravity, juridical antecedence, andincurability can be duly established.[42]

The factual background of this case covers at least 18 years. The petitioner
and the respondent first met in 1973 and lived together as husband and wife, without
the benefit of marriage, before they got married in 1991. In the course of their
relationship, they had three (3) children; established a business, and even incurred
indebtedness amounting to P4 million; had differences due to what the CA described
as character faults and defects; and had a well-described quarrel which the CA
observed to be the common reaction of an ordinary housewife in a similar
situation. Thus, unlike the usual Article 36 cases this Court encountered in the past,
where marriage, cohabitation, and perception of psychological incapacity took place
in that order, the present case poses a situation where there had been a lengthy period
of cohabitation before the marriage took place. To be sure, this factual unique
situation does not change the requirement that psychological incapacity must be
present at the time of the celebration of the marriage. It does, however, raise novel
and unavoidable questions because of the lapse of time the couple has been together
and their intimate knowledge of each other at the time of the celebration of the
marriage. Specifically, how do these factors affect the claim of psychological
incapacity that should exist at the time of the marriage, considering that marriage
came near or at the end of the parties relationship?

Ideally, the best results in the determination of psychological incapacity are

achieved if the respondent herself is actually examined. This opportunity, however,
did not arise in the present case because the respondent simply failed to respond to
the court summons and to cooperate in the proceedings. Thus, only
an indirect psychological examination took place through the transcript of
stenographic notes of the hearings and clinical interviews of the petitioner which
lasted for about three (3) hours.[43] In light of the differences in the appreciation of
the psychologists testimony and conclusions between the trial court and the appellate
court, we deem it necessary to examine the records ourselves, as the factual
allegations and the expert opinion vitally affect the issues submitted for resolution.

Our own examination of the psychologists testimony and conclusions leads

us to conclude that they are not sufficiently in-depth and comprehensive to warrant
the conclusion that a psychological incapacity existed that prevented the respondent
from complying with the essential marital obligations of marriage. In the first place,
the facts on which the psychologist based her conclusions were all derived from
statements by the petitioner whose bias in favor of his cause cannot be doubted. It
does not appear to us that the psychologist read and interpreted the facts related to
her with the awareness that these facts could be slanted. In this sense, we say her
reading may not at all be completely fair in its assessment. We say this while fully
aware that the psychologist appeared at the petitioners bidding and the arrangement
between them was not pro bono.[44] While this circumstance does not disqualify the
psychologist for reasons of bias, her reading of the facts, her testimony, and her
conclusions must be read carefully with this circumstance and the source of the facts
in mind.

In examining the psychologists Report, we find the Particulars and the

Psychological Conclusions disproportionate with one another; the conclusions
appear to be exaggerated extrapolations, derived as they are from isolated incidents,
rather than from continuing patterns. The particulars are, as it were, snapshots,
rather than a running account of the respondents life from which her whole life is
totally judged. Thus, we do not see her psychological assessment to be
comprehensive enough to be reliable.

For example, the psychologists statements about the parties sexual

relationship appear to us to be rash, given that no parallel examination of the
petitioners own pattern of sexual behavior has been made. Sex with a partner is a
two-way affair and while one partner can be more aggressive than the other,
aggressiveness is not per se an aberrant behavior and may depend on the dynamics
of the partners relationship. To infer prior sexual experience because the respondent
allegedly initiated intimate behavior, and to cite an unverified incident of a previous
rape to characterize the respondents sexual behavior, are totally uncalled for. That
the respondent did pass her Dental Board Exam was glossed over and unverified
unsavory incidents related to her exam were highlighted. Her alleged failure to
practice was stressed, without emphasizing, however, that she quit her dental
practice and joined petitioner in his communications business.

The respondents business behavior is a matter that needed full inquiry, as there
could be reasons for her interference. With respect to employees, while the petitioner
charged the respondent with being strict, he, at the same time, alleged that she
gambled with the employees when there were no clients. The psychologist did not
pursue these lines and, significantly, the petitioners testimonies on this point are
uncorroborated. The respondents reaction to her husbands nights out was singled out
and slanted to indicate negative traits. It took the CA to observe that her hostile
attitude when the petitioner stayed out late at night is merely a usual common
reaction of an ordinary housewife in a similar situation. To further quote the CA
citing the transcripts, [I]n fact, petitioner-appellee admitted that the reason
respondent got angry and threw his things outside is because he came home late and
drunk, which petitioner-appellee had done several times already on the pretext of
closing business deals, which sometimes included going out night-clubbing with
clients.[45] Why and how the couple incurred indebtedness of about P4 million may
be usual in the communications business, but is certainly a matter that the
psychologist should have further inquired into in relation with her alleged strictness
in business affairs.

As against the negatives in viewing the respondent, we note that she lived with
the petitioner for 18 years and begot children with him born in 1975, 1978 and 1984
developments that show a fair level of stability in the relationship and a healthy
degree of intimacy between the parties for some eleven (11) years. She finished her
Dentistry and joined her husband in the communications business traits that do not
at all indicate an irresponsible attitude, especially when read with the comment that
she had been strict with employees and in business affairs. The petitioners
Memorandum[46] itself is very revealing when, in arguing that the Marriage Contract
was a sham, the petitioner interestingly alleged that (referring to 1987) [S]ince at
that time, the relationship between the petitioner and respondent was going
well, and future marriage between the two was not an impossibility, the petitioner
signed these documents.

More than all these, the psychologists testimony itself glaringly failed to show
that the respondents behavioral disorder was medically or clinically permanent or
incurable as established jurisprudence requires. Neither did the psychologist testify
that the disorder was grave enough to bring about the disability of the party to
assume the essential obligations of marriage. To directly quote from the records:
ATTY. RODOLFO BRITANICO
Q: All right, what was basically your conclusion in your qualitative research
with regards to the psychological incapacity of the respondent to
comply with the marital obligation?
DR. CRISTINA R. GATES
A: There is a strong indication that the respondent was not able to carry out
her marital obligation her marital duties and responsibilities. And
going through the TSN, it is evident that in their conjugal relation,
 it was petitioner who was responsible, but he in fact gave her
opportunity to develop and to become responsible herself. [sic]
For instance, he sent her back to school to take Dentistry, he
supported her during that time and during the exam and after that he
built her a clinic. In all these, the respondent proved to be
irresponsible. [sic]
When she was taking pre-dental, most of the time she was out of the
house, and in one instance petitioner discovered that respondent was
having an extra-marital affair with her classmate. And in her board
exam she failed the first time. And even if it is questionable,
petitioner approached one of the commissioners and through his
efforts the respondent was able to pass the second time around. [sic]
And in the matter of dental clinic, after merely two months
respondent refused to practice, she not only refused and without the
knowledge of the petitioner sold all the dental equipments at a loss.
[sic]
Q: How about their relationship?
A: From the start respondent is older, she had, like, prior sexual experience,
and she was the one who introduced to him the use of marijuana. x
xxx
Q: How about respondent. How would the respondent compliment the
responsibility?
A: There is no mutuality, because if she run away and asked for petitioner
to rent an apartment for them to live together, petitioner continued
to work and study and went home to her in the evening, but
respondent on the other hand she quit schooling and she did push
through with working, and worst she allowed her friend to live with
them, allegedly in that apartment, and respondent and friend would
engage in pot sessions. [sic]
Q: What did you find out with regards to the duty of respondent to live
together with the petitioner? [sic]
A: She was frequently out, in [sic] her friends. .
Q: How about love and respect?
A: Love is rather complicated. Because she made love to him in her own
will. [sic]
Q: But did they show respect?
A: No, because she had extra-marital affair, and demanding lot of money.
Q: How about to render emotional, spiritual and physical help? How would
respondent comply?
A: She was not able to comply, except maybe for the sexual obligation, but
in terms of physical and emotional support she was not there for
him. When she quit, she hang out with him on their business, but
instead of helping him, she would quarrel him, interfere in his
decisions, she would embarrass petitioner in front of his clients and
employees, and if petitioner would have a deal with his clients and
sometimes would come home late, she would refuse to listen to his
explanation and would lock him out and shout at him. [sic]
Q: And in your Psychological findings, when did this [incapacity] of the
respondent start, her incapacity to comply with the marriage
obligation?
A: In the testimony of the petitioner, I think he did mention that she came
to Manila for her studies, and during the interview I found out that
upon arrival in Manila she was alone, by herself, she had difficulty
adjusting to city life, because all her life were spent in the province
with her parents and siblings, and she lived in Sampaloc where she
got herself in the company of bad friends like going into marijuana
and frequent parties and pot sessions, [which] would last for 3 to 4
days, and in effect disallowed her from going to school regularly.
Q: In clinical psychologist [sic], what is the effect?
A: It is traumatic for her, because there is a separation of her parents, and
not only that she was thrown to a situation of her being alone, at that
time she had no guidance, it would assume that she would just
study[sic]
Q: In your conclusion of your Psychological Report, you stated here and I
quote: Based on the Diagnostic and Statistical Manual (DSM IV),
the international standards of psychological disorders, Respondent
Lorna is plagued with an Adjustment Disorder as manifested in her
impulsiveness, lack of restraint, lack of civility and a sense of
decency in the conduct of her life. Can you please explain to us.
A: Lorna Valera is like a person who is not in control of herself, impulsive.
xxx
Q: How about lack of restraint?
A: Impulses. Like for example, when the husband comes home late, instead
of looking means and ways to rationalize, she would just shout and
lock him out.
Q: And what about lack of civility, what is your basis?
A: She did not consider the welfare of her children, her frequent outings,
like she would conduct her extra marital affairs through phone calls.
When they separated, I understand that she was always out of the
house, gambling at night. In fact, petitioner in one of his visits to
 respondent and children intercepted the letter of a younger child
asking for an appointment to see the mother because the childs
report is that he hardly sees the mother.
xxxx
Q: You mentioned also in your psychological conclusion that Adjustment
Disorder and Compulsive Behavior of Lorna Valera existed prior
and continuous up to the present, can you please explain?
A: If Lorna Valera somewhere in her life changes all of a sudden, then the
psychological incapacity is not obtaining but in mal-adopting
behavior, like you remove the stimulus of the petitioner in her life.
Then the same behavior pattern as I learned from the children, then
the incapacity is irreversible because it is there.[47] [sic]

These statements, lopsided as they are as we observed above, merely testify to the
respondents impulsiveness, lack of restraint, and lack of civility and decency in the
conduct of her life. The psychologist, however, failed to sufficiently prove that all
these emanated from a behavioral disorder so grave and serious that the respondent
would be incapable of carrying out the ordinary duties required in a marriage; that it
was rooted in the respondents medical or psychological history before her marriage;
and that a cure was beyond the respondents capacity to achieve.

Speaking of the root of the alleged disorder, the psychologist could only trace
this to the time the respondent came to Manila; the psychologist concluded that the
disorder was due to her separation from her parents and lack of guidance. Will
common human experience, available through the thousands of students who over
the years trooped from the provinces to Manila, accept the conclusion that this
experience alone can lead to a disorder that can affect their capacity to marry?

In terms of incurability, the psychologist could only cryptically say -

A. If Lorna Valera somewhere in her life changes all of a sudden, then the
psychological incapacity is not obtaining but in mal-adopting behavior, like you
remove the stimulus of the petitioner in her life. Then the same behavior pattern as
I learned from the children, then the incapacity is irreversible because it is there.[48]
Does this convoluted statement mean that Lorna Valera can still change, and that
change can happen if the stimulus of the petitioner is removed from her life? In other
words, is the incapacity relative and reversible?

In Molina, we ruled that mild characterological peculiarities, mood changes

and occasional emotional outbursts cannot be accepted as indicative of
psychological incapacity. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, the
root cause should be a natal or supervening disabling factor in the person, an
adverse integral element in the personality structure that effectively incapacitates
the person from really accepting and thereby complying with the obligations
essential to marriage. In the present case, the psychologist simply narrated adverse
snapshots of the respondents life showing her alleged failure to meet her marital
duties, but did not convincingly prove her permanent incapacity to meet her marital
duties and responsibilities; the root or psychological illness that gave rise to this
incapacity; and that this psychological illness and consequent incapacity existed at
the time the marriage was celebrated.

In light of the wide gaps in the facts the psychologist considered and of the
patent deficiencies of her testimony tested under the standards of established
jurisprudence, we cannot accord full credence and accept the psychologists Report
as basis for the declaration of annulment of the parties marriage under Article 36. In
the absence of any contradictory statements from the respondent, the fairer approach
is to read between the lines of this Report and discern what indeed happened between
the parties based on common human experience between married couples who have
lived together in the way the parties did. From this perspective, we have no problem
in accepting the CA decision as a fairer assessment of the respondents alleged
psychological incapacity, and for being a more realistic appreciation of the evidence
adduced in light of the requirements of Article 36:
Such character faults and defects, We believe, do not constitute psychological
incapacity as a ground for the declaration of marriage between petitioner-appellee
and respondent. While she appears to be less than ideal mother to her children and
loving wife to her husband, herein petitioner-appellee, the same are not physical
manifestations of a psychological illness as described in Molina. Although the
expert witness had clinically identified respondents condition as Adjustment
Disorder, allegedly resulting from respondents separation from her parents when
she studied in Manila before she met petitioner-appellee, it was not established that
such disorder or illness allegedly manifested in her carefree and outgoing behavior
as a means of coping with her emotional and psychological stresses, was the root
cause of her incapacity to fulfill the essential marital obligations. Moreover, such
alleged disorder was not shown to be of a serious nature, a
supervening disabling factor in the person, an adverse integral element in
the personality structure that effective incapacitates the respondent from really
accepting and thereby complying with the obligations essential to marriage. The
clinical findings on respondents alleged Adjustment Disorder have not established
such illness to be grave enough to bring about the disability of the party to assume
the essential obligations of marriage. And, as pointed out by the Solicitor General,
although the Psychological Report stated that respondents condition appears to be
irreversible, the expert witness did not substantiate her conclusion that respondents
condition was indeed incurable or permanent. Nowhere in the testimony of
petitioner-appellee was it shown that respondents allegedly carefree ways (and
smoking of marijuana) while she was younger and had no children yet, continued
throughout their marriage until their separation in 1990. On the contrary, her strict
attitude towards the clients and employees is a clear indication that she takes their
business concerns seriously, such attitude being a reflection of a mature and
responsible personality.[49]

Shorn of any reference to psychology, we conclude that we have a case here

of parties who have very human faults and frailties; who have been together for some
time; and who are now tired of each other. If in fact the respondent does not want to
provide the support expected of a wife, the cause is not necessarily a grave and
incurable psychological malady whose effects go as far as to affect her capacity to
provide marital support promised and expected when the marital knot was tied. To
be tired and to give up on ones situation and on ones husband are not necessarily
signs of psychological illness; neither can falling out of love be so labeled. When
these happen, the remedy for some is to cut the marital knot to allow the parties to
go their separate ways. This simple remedy, however, is not available to us under
our laws. Ours is still a limited remedy that addresses only a very specific situation
a relationship where no marriage could have validly been concluded because the
parties, or one of them, by reason of a grave and incurable psychological illness
existing when the marriage was celebrated, did not appreciate the obligations of
marital life and, thus, could not have validly entered into a marriage. Outside of this
situation, this Court is powerless to provide any permanent remedy. To use the
words of Navales v. Navales:[50]
Article 36 contemplates downright incapacity or inability to take cognizance of and to
assume basic marital obligations. Mere difficulty, refusal or neglect in the performance of
marital obligations or ill will on the part of the spouse is different from incapacity rooted on some
debilitating psychological condition or illness. Indeed, irreconcilable differences, sexual
infidelity or perversion, emotional immaturity and irresponsibility, and the like, do not by
themselves warrant a finding of psychological incapacity under Article 36, as the same
may only be due to a person's refusal or unwillingness to assume the essential obligations
of marriage and not due to some psychological illness that is contemplated by said
rule.[51] [Emphasis ours]

WHEREFORE, in view of these considerations, we DENY the petition

and AFFIRM the Decision and Resolution of the Court of Appeals dated July 4,
2001 and October 18, 2001, respectively, in CA-G.R. CV No. 65273. Costs against
the petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CONSUELO YNARES-SANTIAGO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

*
Designated additional Member of the Second Division per Special Order No. 645 dated May 15, 2009.
**
Designated additional Member of the Second Division effective May 11, 2009 per Special Order No. 635
dated May 7, 2009.
[1]
Under Rule 45 of the Revised Rules of Court.
[2]
Penned by Associate Justice Martin S. Villarama, Jr., and concurred in by Associate Justice Conrado M. Vasquez,
Jr. and Associate Justice Sergio L. Pestao; rollo, pp. 30-37.
[3]
Id., p. 39.
[4]
Penned by Judge Salvador Abad Santos.
[5]
TSN, August 14, 1997, pp. 4-6.
[6]
Annex B, rollo, p. 62.
[7]
Annexes A, A-1, and A-2, id., pp. 56-61.
[8]
Id., pp. 40-44.
[9]
Id., p. 42.
[10]
TSN, August 14, 1997, p. 8.
[11]
TSN, April 2, 1998, pp. 2-4.
[12]
Id., pp. 5-7.
[13]
Id., pp. 7-8.
[14]
Id., pp. 9-10.
[15]
Id., pp. 10-13.
[16]
Records, p. 33.
[17]
Id., pp. 6-8.
[18]
Rollo, p. 62.
[19]
Exhibit F, id., pp. 63-64.
[20]
Exhibit E, id., pp. 65-69.
[21]
Id., pp. 65-66.
[22]
Id., pp. 68-69 (Emphasis in the original).
[23]
RTC Decision, id., p. 74.
[24]
Id., p. 75.
[25]
Id., pp. 75-76.
[26]
CA Decision, id., p. 36.
[27]
Id., p. 39.
[28]
Id., pp. 3-28.
[29]
Id., pp. 8-9.
[30]
Id., pp. 130-150.
[31]
Id., pp. 177-184.
[32]
See Annexes B and G, id., pp. 53 and 62.
[33]
RTC decision, id., p. 75.
[34]
CONSTITUTION, Article VIII, Section 14; See People v. Ferrer, G.R. No. 148821, July 18, 2003, 406 SCRA
658, and Yao v. Court of Appeals, G.R. No. 132428, October 24, 2000, 344 SCRA 202.
[35]
Supra note 30.
[36]
See Yturralde v. Azurin, G.R. No. L-22158, May 30, 1969, 28 SCRA 407; Calahat v. Intermediate Appellate Court,
G.R. Nos. 75257-58, February 15, 1995, 241 SCRA 356.
[37]
Yturralde v. Azurin, supra.
[38]
G.R. No. 112019, January 4, 1995, 240 SCRA 20.
[39]
See Dimayuga-Laurena v. Court of Appeals, G.R. No. 159220, September 22, 2008.
[40]
G.R. No. 108763, February 13, 1997, 268 SCRA 198.
[41]
G.R. No. 136490, October 19, 2000, 343 SCRA 755.
[42]
See Bier v. Bier, G.R. No. 173294, February 27, 2008, 547 SCRA 123 (Emphasis ours).
[43]
TSN, September 15, 1998, pp. 6-14.
[44]
See Republic v. Tanyag-San Jose, G.R. No. 168328, February 28, 2007, 517 SCRA 123; Choa v. Choa, G.R. No.
143376, November 26, 2002, 392 SCRA 641.
[45]
CA Decision, rollo, p. 36.
[46]
Id., pp. 200-227.
[47]
TSN, September 15, 1998, pp. 6-14.
[48]
Id., p. 14.
[49]
CA Decision, rollo, pp. 35-36.
[50]
G.R. No. 167523, June 27, 2008.
[51]
Id. (citations omitted).
 THIRD DIVISION

[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,

vs. CONSUELO TAN, respondent.

DECISION
PANGANIBAN, J.:

A judicial declaration of nullity of a previous marriage is necessary before a

subsequent one can be legally contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statute as void.

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision
of the Court of Appeals (CA)[1] in CA-GR CR No. 19830 and its January 4, 1999 Resolution
denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial
Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein
petitioner of bigamy as follows:

WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a.
Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349
of the Revised Penal Code to have been proven beyond reasonable doubt,
[the court hereby renders] judgment imposing upon him a prison term of three
(3) years, four (4) months and fifteen (15) days of prision correccional, as
minimum of his indeterminate sentence, to eight (8) years and twenty-one (21)
days of prision mayor, as maximum, plus accessory penalties provided by
law.

Costs against accused.[2]

The Facts
 The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as
follows: From the evidence adduced by the parties, there is no dispute that accused Dr.
Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991
before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which a Marriage
Contract was duly executed and signed by the parties. As entered in said document, the
status of accused was single. There is no dispute either that at the time of the celebration
of the wedding with complainant, accused was actually a married man, having been in
lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10,
1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu City per Marriage Certificate
issued in connection therewith, which matrimony was further blessed by Rev. Father
Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu
City. In the same manner, the civil marriage between accused and complainant was
confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas,
Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of
the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent
Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.

On October 5, 1992, a letter-complaint for bigamy was filed by complainant

through counsel with the City Prosecutor of Bacolod City, which eventually
resulted [in] the institution of the present case before this Court against said
accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated
January 22, 1993.

On November 13, 1992, or more than a month after the bigamy case was
lodged in the Prosecutors Office, accused filed an action for Declaration of
Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and
in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado
and Ma. Thelma V. Oliva was declared null and void.

Accused is charged [with] bigamy under Article 349 of the Revised Penal
Code for having contracted a second marriage with herein complainant Ma.
Consuelo Tan on June 27, 1991 when at that time he was previously united in
lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City,
without said first marriage having been legally dissolved. As shown by the
evidence and admitted by accused, all the essential elements of the crime are
present, namely: (a) that the offender has been previously legally married; (2)
that the first marriage has not been legally dissolved or in case the spouse is
absent, the absent spouse could not yet be presumed dead according to the
Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4)
that the second or subsequent marriage ha[d] all the essential requisites for
validity. x x x
While acknowledging the existence of the two marriage[s], accused posited
the defense that his previous marriage ha[d] been judicially declared null and
void and that the private complainant had knowledge of the first marriage of
accused.

It is an admitted fact that when the second marriage was entered into with Ma.
Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V.
Oliva was subsisting, no judicial action having yet been initiated or any judicial
declaration obtained as to the nullity of such prior marriage with Ma. Thelma
V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been
made at the time of his second marriage, it is clear that accused was a
married man when he contracted such second marriage with complainant on
June 27, 1991.He was still at the time validly married to his first wife.[3]

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

Under Article 40 of the Family Code, the absolute nullity of a previous

marriage may be invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void. But here, the final
judgment declaring null and void accuseds previous marriage came not before
the celebration of the second marriage, but after, when the case for bigamy
against accused was already tried in court. And what constitutes the crime of
bigamy is the act of any person who shall contract a second subsequent
marriage before the former marriage has been legally dissolved.[4]

Hence, this Petition.[5]

The Issues

In his Memorandum, petitioner raises the following issues:

Whether or not the element of previous legal marriage is present in order to

convict petitioner.

B
Whether or not a liberal interpretation in favor of petitioner of Article 349 of the
Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the
Family Code, negates the guilt of petitioner.

Whether or not petitioner is entitled to an acquittal on the basis of reasonable

doubt.[6]

The Courts Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code,
which provides:

The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper
proceedings.

The elements of this crime are as follows:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for
validity.[7]

When the Information was filed on January 22, 1993, all the elements of bigamy were
present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu
City.While that marriage was still subsisting, he contracted a second marriage, this
time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for
bigamy.
Petitioner contends, however, that he obtained a judicial declaration of nullity of his
first marriage under Article 36 of the Family Code, thereby rendering it void ab
initio. Unlike voidable marriages which are considered valid until set aside by a competent
court, he argues that a void marriage is deemed never to have taken place at all. [8] Thus,
he concludes that there is no first marriage to speak of. Petitioner also quotes the
commentaries[9] of former Justice Luis Reyes that it is now settled that if the first marriage
is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is
voidable, it is not a defense.
Respondent, on the other hand, admits that the first marriage was declared null and
void under Article 36 of the Family Code, but she points out that that declaration came
only after the Information had been filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of nullity of a void previous marriage
must be obtained before a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the
previous marriage has been characterized as conflicting.[10] In People v. Mendoza,[11] a
bigamy case involving an accused who married three times, the Court ruled that there
was no need for such declaration. In that case, the accused contracted a second marriage
during the subsistence of the first. When the first wife died, he married for the third
time. The second wife then charged him with bigamy. Acquitting him, the Court held that
the second marriage was void ab initio because it had been contracted while the first
marriage was still in effect. Since the second marriage was obviously void and illegal, the
Court ruled that there was no need for a judicial declaration of its nullity. Hence, the
accused did not commit bigamy when he married for the third time. This ruling was
affirmed by the Court in People v. Aragon,[12] which involved substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of
nullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra married for the second time
while the first marriage was still subsisting. Upon his death, the Court awarded one half
of the proceeds of his retirement benefits to the first wife and the other half to the second
wife and her children, notwithstanding the manifest nullity of the second marriage. It
held: And with respect to the right of the second wife, this Court observes that although
the second marriage can be presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there is need for judicial declaration of such nullity.
In Tolentino v. Paras,[14] however, the Court again held that judicial declaration of
nullity of a void marriage was not necessary. In that case, a man married twice. In his
Death Certificate, his second wife was named as his surviving spouse. The first wife then
filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor
of the first wife, holding that the second marriage that he contracted with private
respondent during the lifetime of the first spouse is null and void from the beginning and
of no force and effect. No judicial decree is necessary to establish the invalidity of a void
marriage.
 In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such declaration. In that
case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia
Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia
asked that she be allowed to present evidence to prove, among others, that her first
husband had previously been married to another woman. In holding that there was no
need for such evidence, the Court ruled: x x x There is likewise no need of introducing
evidence about the existing prior marriage of her first husband at the time they married
each other, for then such a marriage though void still needs, according to this Court, a
judicial declaration of such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage with respondent
Karl Heinz Wiegel; x x x.
Subsequently, in Yap v. CA,[16] the Court reverted to the ruling in People v. Mendoza,
holding that there was no need for such declaration of nullity.
In Domingo v. CA,[17] the issue raised was whether a judicial declaration of nullity was
still necessary for the recovery and the separation of properties of erstwhile
spouses. Ruling in the affirmative, the Court declared: The Family Code has settled once
and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity
of a marriage is now explicitly required either as a cause of action or a ground for
defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also
for the protection of the spouse who, believing that his or her marriage is illegal and void,
marries again. With the judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.[18]
Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was
not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a
judicial declaration of nullity of a void marriage on the basis of a new provision of the
Family Code, which came into effect several years after the promulgation
of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage
Law), which provided:

Illegal marriages. Any marriage subsequently contracted by any person during

the lifetime of the first spouse shall be illegal and void from its
performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being alive,
or the absentee being generally considered as dead and believed to be so by the
spouse present at the time of contracting such subsequent marriage, the marriage as
contracted being valid in either case until declared null and void by a competent
court."
The Court held in those two cases that the said provision plainly makes a subsequent
marriage contracted by any person during the lifetime of his first spouse illegal and void
from its performance, and no judicial decree is necessary to establish its invalidity, as
distinguished from mere annulable marriages.[19]
The provision appeared in substantially the same form under Article 83 of the 1950
Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a
new provision, expressly requires a judicial declaration of nullity of the previous marriage,
as follows:

ART. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
marriage void.

In view of this provision, Domingo stressed that a final judgment declaring such
marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier
ruling in Wiegel.Thus, a Civil Law authority and member of the Civil Code Revision
Commitee has observed:

[Article 40] is also in line with the recent decisions of the Supreme Court that
the marriage of a person may be null and void but there is need of a judicial
declaration of such fact before that person can marry again; otherwise, the
second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143
SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision
changes the old rule that where a marriage is illegal and void from its
performance, no judicial decree is necessary to establish its validity (People v.
Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).[20]

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is
no need for a judicial declaration of nullity of a void marriage -- has been cast aside by
Article 40 of the Family Code. Such declaration is now necessary before one can contract
a second marriage. Absent that declaration, we hold that one may be charged with and
convicted of bigamy.
The present ruling is consistent with our pronouncement in Terre v. Terre,[21] which
involved an administrative Complaint against a lawyer for marrying twice. In rejecting the
lawyers argument that he was free to enter into a second marriage because the first one
was void ab initio, the Court ruled: for purposes of determining whether a person is legally
free to contract a second marriage, a judicial declaration that the first marriage was null
and void ab initio is essential. The Court further noted that the said rule was cast into
statutory form by Article 40 of the Family Code. Significantly, it observed that the second
marriage, contracted without a judicial declaration that the first marriage was void, was
bigamous and criminal in character.
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited
by petitioner, changed his view on the subject in view of Article 40 of the Family Code
and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a
void marriage before contracting a subsequent marriage:[22]
It is now settled that the fact that the first marriage is void from the beginning
is not a defense in a bigamy charge. As with a voidable marriage, there must
be a judicial declaration of the nullity of a marriage before contracting the
second marriage. Article 40 of the Family Code states that x x x. The Code
Commission believes that the parties to a marriage should not be allowed to
assume that their marriage is void, even if such is the fact, but must first
secure a judicial declaration of nullity of their marriage before they should be
allowed to marry again. x x x.

In the instant case, petitioner contracted a second marriage although there was yet
no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to
have the first marriage declared void only after complainant had filed a letter-complaint
charging him with bigamy. By contracting a second marriage while the first was still
subsisting, he committed the acts punishable under Article 349 of the Revised Penal
Code.
That he subsequently obtained a judicial declaration of the nullity of the first marriage
was immaterial. To repeat, the crime had already been consummated by then. Moreover,
his view effectively encourages delay in the prosecution of bigamy cases; an accused
could simply file a petition to declare his previous marriage void and invoke the pendency
of that action as a prejudicial question in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court
of Appeals insofar as it denied her claim of damages and attorneys fees. [23]
Her prayer has no merit. She did not appeal the ruling of the CA against her; hence,
she cannot obtain affirmative relief from this Court.[24] In any event, we find no reason to
reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:

We are convinced from the totality of the evidence presented in this case that
Consuelo Tan is not the innocent victim that she claims to be; she was well
aware of the existence of the previous marriage when she contracted
matrimony with Dr. Mercado. The testimonies of the defense witnesses prove
this, and we find no reason to doubt said testimonies.

xxxxxxxxx

Indeed, the claim of Consuelo Tan that she was not aware of his previous
marriage does not inspire belief, especially as she had seen that Dr. Mercado
had two (2) children with him. We are convinced that she took the plunge
anyway, relying on the fact that the first wife would no longer return to Dr.
Mercado, she being by then already living with another man.

Consuelo Tan can therefore not claim damages in this case where she was
fully conscious of the consequences of her act. She should have known that
she would suffer humiliation in the event the truth [would] come out, as it did in
this case, ironically because of her personal instigation. If there are indeed
damages caused to her reputation, they are of her own willful making.[25]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

VITUG, J.:

At the pith of the controversy is the defense of the absolute nullity of a previous
marriage in an indictment for bigamy. The majority opinion, penned by my esteemed
brother, Mr. Justice Artemio V. Panganiban, enunciates that it is only a judicially decreed
prior void marriage which can constitute a defense against the criminal charge.
The civil law rule stated in Article 40 of the Family Code is a given but I have strong
reservations on its application beyond what appears to be its expressed context. The
subject of the instant petition is a criminal prosecution, not a civil case, and
the ponencia affirms the conviction of petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family code reads:

ART. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.

The phrase for purposes of remarriage is not at all insignificant. Void marriages, like
void contracts, are inexistent from the very beginning. It is only by way of exception that
the Family code requires a judicial declaration of nullity of the previous marriage before a
subsequent marriage is contracted; without such declaration, the validity and the full legal
consequence of the subsequent marriage would itself be in similar jeopardy under Article
53, in relation to Article 52, of the Family Code. Parenthetically, I would daresay that the
necessity of a judicial declaration of nullity of a void marriage for the purpose of
remarriage should be held to refer merely to cases where it can be said that a marriage,
at least ostensibly, had taken place. No such judicial declaration of nullity, in my view,
should still be deemed essential when the marriage, for instance, is between persons of
the same sex or when either or both parties had not at all given consent to the
marriage. Indeed, it is likely that Article 40 of the Family Code has been meant and
intended to refer only to marriages declared void under the provisions of Articles 35, 36,
37, 38 and 53 thereof.
In fine, the Family Code, I respectfully submit, did not have the effect of overturning
the rule in criminal law and related jurisprudence. The Revised Penal Code expresses:

Art. 349. Bigamy.---The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent spouse
has been declared presumptively dead by means of a judgment rendered in
the proper proceedings.

Surely, the foregoing provision contemplated an existing, not void, prior

marriage. Covered by article 349 would thus be, for instance, a voidable marriage, it
obviously being valid and subsisting until set aside by a competent court. As early as
People vs. Aragon,1 this Court has underscored:

xxx Our Revised Penal Code is of recent enactment and had the rule
enunciated in Spain and in America requiring judicial declaration of
nullity of ab initio void marriages been within the contemplation of the
legislature, an express provision to that effect would or should have
been inserted in the law. In its absence, we are bound by said rule of
strict interpretation.

Unlike a voidable marriage which legally exists until judicially annulled (and therefore
not a defense in bigamy if the second marriage were contracted prior to the decree
of annulment),the complete nullity, however, of a previously contracted marriage, being
a total nullity and inexistent, should be capable of being independently raised by way of
a defense in a criminal case for bigamy. I see no incongruence between this rule in
criminal law and that of the Family Code, and each may be applied within the respective
spheres of governance.
Accordingly, I vote to grant the petition.

1
100 Phil. 1033.

[1]
Penned by J. Salome A. Montoya, Division chairman; with the concurrence of JJ Conchita Carpio Morales and
Bernardo P. Abesamis, members.
[2]
RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge Edgar G. Garvilles.
[3]
CA Decision, pp. 2-4; rollo, pp. 45-47.
[4]
Ibid., p. 6; rollo, p. 13.
[5]
The case was deemed submitted for resolution on May 26, 2000, upon receipt by this Court of the OSG
Memorandum signed by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Mariano M Martinez and Sol. Jesus P. Castelo.
Respondents Memorandum, which was signed by Atty. Julius C. Baldado, was received on November 11, 1999; while
petitioners Memorandum, signed by Attys. Bernard B. Lopez and Maritoni Z. Liwanag, had been filed earlier on
September 30, 1999.
[6]
Petitioners Memorandum, p. 5; rollo, p. 215.
[7]
Reyes, The Revised Penal Code, Book Two, 13th ed. (1993), p. 828.
[8]
Citing Tolentino, Civil Code of the Philippines: Commentaries and Jurisprudence, Vol. I, p. 265.
[9]
Reyes, The Revised Penal Code, Book Two, 12th ed. (1981), p. 907.9
[10]
Domingo v. CA, 226 SCRA 572, September 17, 1993, per Romero, J.
[11]
95 Phil. 845, September 28, 1954.
[12]
100 Phil. 1033, February 28, 1957.
[13]
37 SCRA 315, 326, January 30, 1971, per Zaldivar, J. Emphasis supplied. See also Gomez v. Lipana, 33 SCRA
615, June 30, 1970.
[14]
122 SCRA 525,529, May 30, 1983; per Melencio-Herrera, J. Emphasis supplied.
[15]
143 SCRA 499, August 19, 1986, per Paras, J. Emphasis supplied.
[16]
145 SCRA 229, October 28, 1986.
[17]
226 SCRA 572, September 17, 1993, per Romero, J, citing Sempio-Diy, Handbook of the Family Code of the
Philippines, 1988, p. 46.
[18]
Supra, p. 579.
[19]
People v. Mendoza, 95 Phil. 845, 847, September 28, 1954, per Paras, CJ. See also People v. Aragon, 100 Phil.
1033, 1034-1035, February 28, 1957, per Labrador, J.
[20]
Sempio-Diy, Handbook on the Family Code of the Philippines, 1995 ed., p. 56.
[21]
211 SCRA 6, 11, July 3, 1992, per curiam.
[22]
Reyes, Revised Penal Code, Book Two, 13th ed. (1993), p. 829. Emphasis supplied. Petitioner had cited the
statement of Justice Reyes that if the first marriage is void from the beginning, it is a defense in a bigamy charge. This
statement, however, appeared in the 1981 edition of Reyes book, before the enactment of the Family Code.
[23]
Respondents Memorandum, p. 16; rollo, p. 259.
[24]
Lagandaon v. Court of Appeals, 290 SCRA 330, May 21, 1998; Dio v. Concepcion, 296 SCRA 579, September
25, 1998.
[25]
CA Decision, pp. 7-9; rollo, pp. 50-52.

FIRST DIVISION

[G.R. No. 138509. July 31, 2000]

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D.
BOBIS, respondent.

DECISION

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B.
Javier. Without said marriage having been annulled, nullified or terminated, the same
respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on
January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez.
Based on petitioners complaint-affidavit, an information for bigamy was filed against
respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-
75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter,
respondent initiated a civil action for the judicial declaration of absolute nullity of his first
marriage on the ground that it was celebrated without a marriage license. Respondent
then filed a motion to suspend the proceedings in the criminal case for bigamy invoking
the pending civil case for nullity of the first marriage as a prejudicial question to the
criminal case. The trial judge granted the motion to suspend the criminal case in an
Order dated December 29, 1998.[1] Petitioner filed a motion for reconsideration, but the
same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should
have first obtained a judicial declaration of nullity of his first marriage before entering
into the second marriage, inasmuch as the alleged prejudicial question justifying
suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the
Family Code.[2]

The issue to be resolved in this petition is whether the subsequent filing of a civil action
for declaration of nullity of a previous marriage constitutes a prejudicial question to a
criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein.[3] It is a question based on a fact distinct and
separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused.[4] It must appear not only that the civil case involves facts
upon which the criminal action is based, but also that the resolution of the issues raised
in the civil action would necessarily be determinative of the criminal
case.[5] Consequently, the defense must involve an issue similar or intimately related to
the same issue raised in the criminal action and its resolution determinative of whether
or not the latter action may proceed.[6] Its two essential elements are:[7]

(a) the civil action involves an issue similar or intimately related to the
issue raised in the criminal action; and
 (b) the resolution of such issue determines whether or not the criminal
action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the
accused but simply tests the sufficiency of the allegations in the information in order to
sustain the further prosecution of the criminal case. A party who raises a prejudicial
question is deemed to have hypothetically admitted that all the essential elements of a
crime have been adequately alleged in the information, considering that the prosecution
has not yet presented a single evidence on the indictment or may not yet have rested its
case. A challenge of the allegations in the information on the ground of prejudicial
question is in effect a question on the merits of the criminal charge through a non-
criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of the
second marriage, requires a prior judicial declaration of nullity of a previous marriage
before a party may remarry. The clear implication of this is that it is not for the parties,
particularly the accused, to determine the validity or invalidity of the marriage. [8] Whether
or not the first marriage was void for lack of a license is a matter of defense because
there is still no judicial declaration of its nullity at the time the second marriage was
contracted. It should be remembered that bigamy can successfully be prosecuted
provided all its elements concur two of which are a previous marriage and a subsequent
marriage which would have been valid had it not been for the existence at the material
time of the first marriage.[9]

In the case at bar, respondents clear intent is to obtain a judicial declaration of nullity of
his first marriage and thereafter to invoke that very same judgment to prevent his
prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an
adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a
subsequent marriage and escape a bigamy charge by simply claiming that the first
marriage is void and that the subsequent marriage is equally void for lack of a prior
judicial declaration of nullity of the first. A party may even enter into a marriage aware of
the absence of a requisite - usually the marriage license - and thereafter contract a
subsequent marriage without obtaining a declaration of nullity of the first on the
assumption that the first marriage is void. Such scenario would render nugatory the
provisions on bigamy. As succinctly held in Landicho v. Relova:[10]

(P)arties to a marriage should not be permitted to judge for themselves its

nullity, only competent courts having such authority. Prior to such
declaration of nullity, the validity of the first marriage is beyond question. A
party who contracts a second marriage then assumes the risk of being
prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a
marriage license. Petitioner, on the other hand, argues that her marriage to respondent
was exempt from the requirement of a marriage license. More specifically, petitioner
claims that prior to their marriage, they had already attained the age of majority and had
been living together as husband and wife for at least five years. [11] The issue in this case
is limited to the existence of a prejudicial question, and we are not called upon to
resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil
Code, under which the first marriage was celebrated, provides that "every intendment of
law or fact leans toward the validity of marriage, the indissolubility of the marriage
bonds."[12] Hence, parties should not be permitted to judge for themselves the nullity of
their marriage, for the same must be submitted to the determination of competent
courts. Only when the nullity of the marriage is so declared can it be held as void, and
so long as there is no such declaration the presumption is that the marriage exists. [13] No
matter how obvious, manifest or patent the absence of an element is, the intervention of
the courts must always be resorted to. That is why Article 40 of the Family Code
requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho
v. Relova,[14] he who contracts a second marriage before the judicial declaration of nullity
of the first marriage assumes the risk of being prosecuted for bigamy, and in such a
case the criminal case may not be suspended on the ground of the pendency of a civil
case for declaration of nullity. In a recent case for concubinage, we held that the
pendency of a civil case for declaration of nullity of marriage is not a prejudicial
question.[15] This ruling applies here by analogy since both crimes presuppose the
subsistence of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully
invoked as an excuse.[16] The contracting of a marriage knowing that the requirements of
the law have not been complied with or that the marriage is in disregard of a legal
impediment is an act penalized by the Revised Penal Code.[17] The legality of a marriage
is a matter of law and every person is presumed to know the law. As respondent did not
obtain the judicial declaration of nullity when he entered into the second marriage, why
should he be allowed to belatedly obtain that judicial declaration in order to delay his
criminal prosecution and subsequently defeat it by his own disobedience of the law? If
he wants to raise the nullity of the previous marriage, he can do it as a matter of
defense when he presents his evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second
marriage was contracted rests upon the defense,[18] but that is a matter that can be
raised in the trial of the bigamy case. In the meantime, it should be stressed that not
every defense raised in the civil action may be used as a prejudicial question to obtain
the suspension of the criminal action. The lower court, therefore, erred in suspending
the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the
fact that he entered into two marriage ceremonies appeared indubitable. It was only
after he was sued by petitioner for bigamy that he thought of seeking a judicial
declaration of nullity of his first marriage. The obvious intent, therefore, is that
respondent merely resorted to the civil action as a potential prejudicial question for the
purpose of frustrating or delaying his criminal prosecution. As has been discussed
above, this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having obtained
the judicial declaration of nullity of the first marriage, can not be said to have validly
entered into the second marriage. Per current jurisprudence, a marriage though void still
needs a judicial declaration of such fact before any party can marry again; otherwise the
second marriage will also be void.[19] The reason is that, without a judicial declaration of
its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent
was for all legal intents and purposes regarded as a married man at the time he
contracted his second marriage with petitioner.[20] Against this legal backdrop, any
decision in the civil action for nullity would not erase the fact that respondent entered
into a second marriage during the subsistence of a first marriage. Thus, a decision in
the civil case is not essential to the determination of the criminal charge. It is, therefore,
not a prejudicial question. As stated above, respondent cannot be permitted to use his
own malfeasance to defeat the criminal action against him.[21]

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the
Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and
the trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

[1]
Rollo, pp. 29-30.
[2]
Petition, p. 6; Rollo, p. 23.
[3]
Fortich-Celdran v. Celdran, 19 SCRA 502 (1967); Zapanta v. Montessa; 114 Phil. 428 (1962); Merced v. Diez,
109 Phil. 155 (1960); See also People v. Aragon, 94 Phil. 357 (1954) cited in Dichaves v. Judge Apalit, AM-MTJ-
00-1274, June 8, 2000.
[4]
Yap v. Paras, 205 SCRA 625 (1992); Donato v. Luna, 160 SCRA 441 (1988); Quiambao v. Osorio, 158 SCRA
674 (1988); Mendiola v. Macadaeg, 1 SCRA 593 (1961); Aleria v. Mendoza, 83 Phil. 427 (1949);
Berbari v. Concepcion, 40 Phil. 837 (1920)
[5]
Ras v. Rasul, 100 SCRA 125 (1980); Benitez v. Concepcion, Jr., 2 SCRA 178 (1961) citing De Leon v. Mabanag,
70 Phil. 202 (1940)
[6]
Yap v. Paras, 205 SCRA 625 (1992)
[7]
Rules of Court, Rule 111, Sec. 5. Elements of prejudicial question. The two (2) essential elements of a prejudicial
question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal
action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. (See also
Prado v. People, 218 Phil. 571)
[8]
Nial v. Badayog, G.R. No. 133778, March 14, 2000.
[9]
People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy are: (1) the offender has been legally married; (2)
that the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not
been judicially declared presumptively dead; (3) that he contracts a subsequent marriage; (4) the subsequent
marriage would have been valid had it not been for the existence of the first. The exception to prosecution for
bigamy are those covered by Article 41 of the Family Code and by P.D. 1083 otherwise known as the Code of
Muslim Personal Laws of the Philippines, which provides that penal laws relative to the crime of bigamy "shall not
apply to a person married xxx under Muslim Law" where the requirements set therein are met. See also Sulu Islamic
Association v. Malik, 226 SCRA 193 (1993); Merced v. Diez, 109 Phil. 155 (1960)
[10]
22 SCRA 731, 735 (1968)
[11]
Civil Code, Article 76.
[12]
Civil Code, Article 220.
[13]
Landicho v. Relova, supra.
[14]
Supra.
[15]
Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000.
[16]
Civil Code, Article 3.
[17]
Revised Penal Code, Article 350.
[18]
People v. Dungao, 56 Phil. 805 (1931)
[19]
Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997)
[20]
Wiegel v. Hon. Sempio-Dy, 143 SCRA 499, 501 (1986)
[21]
People v. Aragon, 94 Phil. 357, 360 (1954)

SECOND DIVISION

[G.R. No. 127406. November 27, 2000]

OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and

EDGARDO M. REYES, respondents.

DECISION
QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of
Appeals in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial Court
of Pasig, Branch 160, declaring the marriage contract between private respondent
Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It also ordered
private respondent to pay P15,000.00 as monthly support for their children Faye Eloise
Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna Maria Regina
Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church
wedding on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic
Relations Court of Quezon City declared their marriage null and void ab initio for lack of
a valid marriage license.The church wedding on August 27, 1977, was also declared null
and void ab initio for lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna Maria, private
respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated
by the judge of the City Court of Pasay. On April 4, 1982, they also had a church wedding
in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of
Pasig, Branch 160, praying that his marriage to petitioner be declared null and void. He
alleged that they had no marriage license when they got married. He also averred that at
the time he married petitioner, he was still married to Anna Maria. He stated that at the
time he married petitioner the decree of nullity of his marriage to Anna Maria had not been
issued. The decree of nullity of his marriage to Anna Maria was rendered only on August
4, 1980, while his civil marriage to petitioner took place on April 4, 1979.
 Petitioner, in defending her marriage to private respondent, pointed out that his claim
that their marriage was contracted without a valid license is untrue. She submitted their
Marriage License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12
and 12-A. He did not question this document when it was submitted in
evidence. Petitioner also submitted the decision of the Juvenile and Domestic Relations
Court of Quezon City dated August 4, 1980, which declared null and void his civil
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church
marriage to said Anna Maria on August 27, 1977. These documents were submitted as
evidence during trial and, according to petitioner, are therefore deemed sufficient proof of
the facts therein. The fact that the civil marriage of private respondent and petitioner took
place on April 4, 1979, before the judgment declaring his prior marriage as null and void is
undisputed. It also appears indisputable that private respondent and petitioner had a
church wedding ceremony on April 4, 1982.[1]
The Pasig RTC sustained private respondents civil suit and declared his marriage to
herein petitioner null and void ab initio in its decision dated November 4, 1991. Both
parties appealed to respondent Court of Appeals. On July 24, 1996, the appellate court
affirmed the trial courts decision. It ruled that a judicial declaration of nullity of the first
marriage (to Anna Maria) must first be secured before a subsequent marriage could be
validly contracted. Said the appellate court:

We can accept, without difficulty, the doctrine cited by defendants counsel that
no judicial decree is necessary to establish the invalidity of void marriages. It
does not say, however, that a second marriage may proceed even without a
judicial decree. While it is true that if a marriage is null and void, ab initio,
there is in fact no subsisting marriage, we are unwilling to rule that the matter
of whether a marriage is valid or not is for each married spouse to determine
for himself for this would be the consequence of allowing a spouse to proceed
to a second marriage even before a competent court issues a judicial decree
of nullity of his first marriage. The results would be disquieting, to say the
least, and could not have been the intendment of even the now-repealed
provisions of the Civil Code on marriage.

xxx

WHEREFORE, upon the foregoing ratiocination, We modify the appealed

Decision in this wise:

1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M.

Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and
void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount
of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from
November 4, 1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED. [2]

Petitioners motion for reconsideration was denied. Hence, this instant petition
asserting that the Court of Appeals erred:
I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR

THE VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A
JUDICIAL DECREE NOT REQUIRED BY LAW.
II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS.

COURT OF APPEALS.
III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE

CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE
SAME MARRIAGE LICENSE.
IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES

TO THE DEFENDANT-APPELLANT.

The principal issue in this case is whether the decree of nullity of the first marriage is
required before a subsequent marriage can be entered into validly? To resolve this
question, we shall go over applicable laws and pertinent cases to shed light on the
assigned errors, particularly the first and the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner
to private respondent null and void for lack of a prior judicial decree of nullity of the
marriage between private respondent and Villanueva. The appellate court rejected
petitioners claim that People v. Mendoza[3] and People v. Aragon[4] are applicable in this
case. For these cases held that where a marriage is void from its performance, no judicial
decree is necessary to establish its invalidity. But the appellate court said these cases,
decided before the enactment of the Family Code (E.O. No. 209 as amended by E.O No.
227), no longer control. A binding decree is now needed and must be read into the
provisions of law previously obtaining.[5]
In refusing to consider petitioners appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory
precedent for this case. Although decided by the High Court in 1992, the facts
situate it within the regime of the now-repealed provisions of the Civil Code,
as in the instant case.

xxx

For purposes of determining whether a person is legally free to contract a

second marriage, a judicial declaration that the first marriage was null and
void ab initio is essential. . . .[6]

At the outset, we must note that private respondents first and second marriages
contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil
Code. The present case differs significantly from the recent cases of Bobis v.
Bobis[7] and Mercado v. Tan,[8] both involving a criminal case for bigamy where the bigamous
marriage was contracted during the effectivity of the Family Code,[9] under which a judicial
declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:

Art. 83. Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such first
spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the
absentee being alive, or if the absentee, though he has been absent for less
than seven years, is generally considered as dead and before any person
believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted shall be valid in any of the
three cases until declared null and void by a competent court.

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil

Code contains no express provision to that effect. Jurisprudence on the matter, however,
appears to be conflicting.
Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this Court held that no
judicial decree is necessary to establish the nullity of a void marriage. Both cases involved
the same factual milieu. Accused contracted a second marriage during the subsistence
of his first marriage. After the death of his first wife, accused contracted a third marriage
during the subsistence of the second marriage. The second wife initiated a complaint for
bigamy. The Court acquitted accused on the ground that the second marriage is void,
having been contracted during the existence of the first marriage. There is no need for a
judicial declaration that said second marriage is void. Since the second marriage is void,
and the first one terminated by the death of his wife, there are no two subsisting valid
marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases,
saying that it is not for the spouses but the court to judge whether a marriage is void or
not.
In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we recognized the
right of the second wife who entered into the marriage in good faith, to share in their
acquired estate and in proceeds of the retirement insurance of the husband. The Court
observed that although the second marriage can be presumed to be void ab initio as it
was celebrated while the first marriage was still subsisting, still there was a need for
judicial declaration of such nullity (of the second marriage). And since the death of the
husband supervened before such declaration, we upheld the right of the second wife to
share in the estate they acquired, on grounds of justice and equity.[14]
But in Odayat v. Amante (1977),[15] the Court adverted to Aragon and Mendoza as
precedents. We exonerated a clerk of court of the charge of immorality on the ground that
his marriage to Filomena Abella in October of 1948 was void, since she was already
previously married to one Eliseo Portales in February of the same year. The Court held
that no judicial decree is necessary to establish the invalidity of void marriages. This ruling
was affirmed in Tolentino v. Paras.[16]
Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there is a need for a
judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In
1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic
Relations Court to declare his marriage to Lilia as void on the ground of her previous valid
marriage.The Court, expressly relying on Consuegra, concluded that:[18]
There is likewise no need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such a marriage though
void still needs according to this Court a judicial declaration (citing Consuegra) of such
fact and for all legal intents and purposes she would still be regarded as a married woman
at the time she contracted her marriage with respondent Karl Heinz Wiegel; accordingly,
the marriage of petitioner and respondent would be regarded VOID under the
law. (Emphasis supplied).
In Yap v. Court of Appeals,[19] however, the Court found the second marriage void
without need of judicial declaration, thus reverting to the Odayat,
Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family
Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article
40 of the Family Code.[20] Article 40 of said Code expressly required a judicial declaration
of nullity of marriage

Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void.
 In Terre v. Terre (1992)[21] the Court, applying Gomez,
Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void
marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage
during the subsistence of his first marriage. He claimed that his first marriage in 1977 was
void since his first wife was already married in 1968. We held that Atty. Terre should have
known that the prevailing case law is that for purposes of determining whether a person
is legally free to contract a second marriage, a judicial declaration that the first marriage
was null and void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court of
Appeals (1993),[22] the Court held:

Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of absolute nullity of marriage is
now explicitly required either as a cause of action or a ground for
defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law for said projected marriage to be
free from legal infirmity is a final judgment declaring the previous marriage
void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86,
99, 147, 148). [23]

However, a recent case applied the old rule because of the peculiar circumstances
of the case. In Apiag v. Cantero, (1997)[24] the first wife charged a municipal trial judge of
immorality for entering into a second marriage. The judge claimed that his first marriage
was void since he was merely forced into marrying his first wife whom he got pregnant. On
the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We
held that since the second marriage took place and all the children thereunder were born
before the promulgation of Wiegel and the effectivity of the Family Code, there is no need
for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence
at that time.
Similarly, in the present case, the second marriage of private respondent was entered
into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat,
Mendoza and Aragon. The first marriage of private respondent being void for lack of
license and consent, there was no need for judicial declaration of its nullity before he
could contract a second marriage. In this case, therefore, we conclude that private
respondents second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be retroactively
applied to the present case, for to do so would prejudice the vested rights of petitioner
and of her children. As held in Jison v. Court of Appeals,[25] the Family Code has
retroactive effect unless there be impairment of vested rights. In the present case, that
impairment of vested rights of petitioner and the children is patent. Additionally, we are
not quite prepared to give assent to the appellate courts finding that despite private
respondents deceit and perfidy in contracting marriage with petitioner, he could benefit
from her silence on the issue. Thus, coming now to the civil effects of the church
ceremony wherein petitioner married private respondent using the marriage license used
three years earlier in the civil ceremony, we find that petitioner now has raised this matter
properly. Earlier petitioner claimed as untruthful private respondents allegation that he
wed petitioner but they lacked a marriage license. Indeed we find there was a marriage
license, though it was the same license issued on April 3, 1979 and used in both the civil
and the church rites. Obviously, the church ceremony was confirmatory of their civil
marriage. As petitioner contends, the appellate court erred when it refused to recognize
the validity and salutary effects of said canonical marriage on a technicality, i.e. that
petitioner had failed to raise this matter as affirmative defense during trial. She argues
that such failure does not prevent the appellate court
from giving her defense due consideration and weight. She adds that the interest of the
State in protecting the inviolability of marriage, as a legal and social institution, outweighs
such technicality. In our view, petitioner and private respondent had complied with all the
essential and formal requisites for a valid marriage, including the requirement of a valid
license in the first of the two ceremonies. That this license was used legally in the
celebration of the civil ceremony does not detract from the ceremonial use thereof in the
church wedding of the same parties to the marriage, for we hold that the latter rites served
not only to ratify but also to fortify the first. The appellate court might have its reasons for
brushing aside this possible defense of the defendant below which undoubtedly could
have tendered a valid issue, but which was not timely interposed by her before the trial
court. But we are now persuaded we cannot play blind to the absurdity, if not inequity, of
letting the wrongdoer profit from what the CA calls his own deceit and perfidy.
On the matter of petitioners counterclaim for damages and attorneys fees. Although
the appellate court admitted that they found private respondent acted duplicitously and
craftily in marrying petitioner, it did not award moral damages because the latter did not
adduce evidence to support her claim.[26]
Like the lower courts, we are also of the view that no damages should be awarded in
the present case, but for another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to maintain her status as legitimate
wife. In the same breath, she asks for damages from her husband for filing a baseless
complaint for annulment of their marriage which caused her mental anguish, anxiety,
besmirched reputation, social humiliation and alienation from her parents. Should we
grant her prayer, we would have a situation where the husband pays the wife damages
from conjugal or common funds. To do so, would make the application of the law
absurd. Logic, if not common sense, militates against such incongruity.Moreover, our
laws do not comprehend an action for damages between husband and wife merely
because of breach of a marital obligation.[27] There are other remedies.[28]
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed
partially, so that the marriage of petitioner Ofelia P. Ty and private respondent Edgardo
M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of the amount
of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their two children,
Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age or
otherwise legally entitled thereto. Costs against private respondent.
 SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

See also Tison vs. CA, 276 SCRA 582, 593 (1997); Quebral vs. CA, 252 SCRA 353, 365 (1996); Son vs.
[1]

Son, 251 SCRA 556, 564 (1995); re proof of facts cited.

[2]
Rollo, pp. 48-52.
[3]
45 Phil 739 (1954).
[4]
100 SCRA 1033 (1957).
[5]
Rollo, p. 47.
[6]
Rollo, p. 49.
[7]
G.R. No. 138509, July 31, 2000.
G.R. No. 137110, August 1, 2000. In his dissenting and concurring opinion, Justice Vitug opined that the
[8]

necessity of a judicial declaration of nullity of a void marriage for the purpose of remarriage should be held
to refer merely to cases where it can be said that a marriage, at least ostensibly, had taken place. No such
judicial declaration of nullity, in his view, should still be deemed essential when the "marriage," for instance,
is between persons of the same sex or when either or both parties had not at all given consent to the
marriage. Indeed, it is likely that Article 40 of the Family Code has been meant and intended to refer only
to marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof.
[9]
E.O. No. 209, which took effect on August 3, 1988.
[10]
45 Phil 739 (1954).
[11]
100 SCRA 1033 (1957).
[12]
33 SCRA 614 (1970).
[13]
37 SCRA 315 (1971).
[14]
See also Lao v. Dee, 45 Phil 739 (1924) and Pisalbon v. Bejec, 74 Phil 88 (1943).
[15]
77 SCRA 338 (1977).
[16]
22 SCRA 525 (1983).
[17]
143 SCRA 499 (1986).
[18]
Id. at 501.
[19]
145 SCRA 229 (1986).
[20]
The Family Code took effect on August 3, 1988.
[21]
211 SCRA 7 (1992).
[22]
226 SCRA 572 (1993).
[23]
Id. at 579.
[24]
268 SCRA 47 (1997)
[25]
286 SCRA 495, 530 (1998).
 [26]
Rollo, p. 51.
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.1,
[27]

Manila: 1990, p. 223.

[28]
Among them legal separation, or prosecution for adultery and concubinage.

Today is Tuesday, August 21, 2018

EN BANC

G.R. No. 150758 February 18, 2004

VERONICO TENEBRO, petitioner

vs.
THE HONORABLE COURT OF APPEALS, respondent.

DECISION

YNARES-SANTIAGO, J.:

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or
subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the
subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the
celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second
or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent
declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The
two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together
continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously
married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract
between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with
Ancajas, stating that he was going to cohabit with Villareyes.1

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German
Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When Ancajas learned of this third marriage, she verified from
Villareyes whether the latter was indeed married to petitioner. In a handwritten letter,3 Villareyes confirmed that petitioner,
Veronico Tenebro, was indeed her husband.

Ancajas thereafter filed a complaint for bigamy against petitioner.4 The Information,5 which was docketed as Criminal Case No.
013095-L, reads:

That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court, the
aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said marriage
having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with LETICIA
ANCAJAS, which second or subsequent marriage of the accused has all the essential requisites for validity were it not for the
subsisting first marriage.

CONTRARY TO LAW.

When arraigned, petitioner entered a plea of "not guilty".6

During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children. However,
he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony took place to solemnize
their union.7 He alleged that he signed a marriage contract merely to enable her to get the allotment from his office in connection
with his work as a seaman.8 He further testified that he requested his brother to verify from the Civil Register in Manila whether
there was any marriage at all between him and Villareyes, but there was no record of said marriage.9

On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused guilty
beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to four (4)
years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioner’s motion for reconsideration was
denied for lack of merit.

Hence, the instant petition for review on the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS
APPEAL – WHEN IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUOCONVICTING THE
ACCUSED FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE
AND INSUFFICIENCY OF EVIDENCE.

II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE
CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD
BEEN DECLARED NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11

After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment.

Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

 (4) that the second or subsequent marriage has all the essential requisites for validity.12

Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to
Villareyes, and (2) argues that the declaration of the nullity of the second marriage on the ground of psychological incapacity,
which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on which
the second marriage was celebrated.13 Hence, petitioner argues that all four of the elements of the crime of bigamy are absent,
and prays for his acquittal.14

Petitioner’s defense must fail on both counts.

First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first marriage
between petitioner and Villareyes. Documentary evidence presented was in the form of: (1) a copy of a marriage contract
between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the Manila City
Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of Manila;15 and (2) a
handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally
married.16

To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics Office
dated October 7, 1995;17 and (2) a certification issued by the City Civil Registry of Manila, dated February 3, 1997.18 Both these
documents attest that the respective issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and
Hilda B. Villareyes on November 10, 1986.

To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself would
already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes.

All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to public
documents are applicable to all. Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows:

Sec. 7. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a
public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody
thereof (Emphasis ours).

This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible as
the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated between petitioner and
Villareyes on November 10, 1986, and it should be accorded the full faith and credence given to public documents.

Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995 and that
issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests as a positive fact
that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the
documents merely attest that the respective issuing offices have no record of such a marriage. Documentary evidence as to the
absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary
evidence as to the invalidity of the marriage between Tenebro and Villareyes.

The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage between
Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to absence of any record
of the marriage, especially considering that there is absolutely no requirement in the law that a marriage contract needs to be
submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a marriage
exists does not invalidate the marriage, provided all requisites for its validity are present.19 There is no evidence presented by the
defense that would indicate that the marriage between Tenebro and Villareyes lacked any requisite for validity, apart from the
self-serving testimony of the accused himself. Balanced against this testimony are Villareyes’ letter, Ancajas’ testimony that
petitioner informed her of the existence of the valid first marriage, and petitioner’s own conduct, which would all tend to indicate
that the first marriage had all the requisites for validity.

Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by requesting
his brother to validate such purported non-existence, it is significant to note that the certifications issued by the National Statistics
Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents,
therefore, are dated after the accused’s marriage to his second wife, private respondent in this case.

As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second requisites
for the crime of bigamy.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration20 of the nullity of the second
marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As
such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not
committed.21

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity,
invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on
the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s
marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or
incapacity.22 Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the
Revised Penal Code criminalizes "any person who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings". A plain reading of the law, therefore, would indicate that the provision penalizes the mere
act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first
marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing
between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent
marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is
concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this
special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond
between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that
petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are
classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the
presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage license, and marriage ceremony
wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two
witnesses).24 Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of
the impediments mentioned in Articles 3725 and 3826 may contract marriage.27
In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were
over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo
B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the
celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage
is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the
marriage shall be considered legitimate.28 There is therefore a recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for
bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to
deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting
multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the judgment of
the Court of Appeals.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to
Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for
purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State
does not look kindly on such activities. Marriage is a special contract, the key characteristic of which is its permanence. When an
individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws
on bigamy step in.

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a
duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the
same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum
term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one
(1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to
suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and
one (1) day of prision mayor, as maximum.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of
Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer
the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1)
day of prision mayor, as maximum, is AFFIRMED in toto.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Panganiban, Sandoval-Gutierrez, Corona, and Azcuna, JJ., concur.
Puno, J., join the opinion of J. Vitug.
Vitug, J., see separate opinion.
Quisumbing, J., join the dissent in view of void nuptia.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., join the dissent of J. Carpio.
Carpio-Morales, J., join the dissent of J. Carpio.
Tinga, J., join the dissent of J. Carpio.
Callejo, Sr., J., see separate dissent.

SEPARATE OPINION>
VITUG, J.:

Veronico Tenebro has been charged with bigamy for contracting, while still being married to Hilda Villareyes, a second marriage
with private complainant Leticia Ancajas. Tenebro argues that since his second marriage with Ancajas has ultimately been
declared void ab initio on the ground of the latter’s psychological incapacity, he should be acquitted for the crime of bigamy.

The offense of bigamy is committed when one contracts "a second or subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the
proper proceedings".1 Bigamy presupposes a valid prior marriage and a subsequent marriage, contracted during the subsistence
of the prior union, which would have been binding were it not for its being bigamous.

Would the absolute nullity of either the first or the second marriage, prior to its judicial declaration as being void, constitute a valid
defense in a criminal action for bigamy?

I believe that, except for a void marriage on account of the psychological incapacity of a party or both parties to the marriage
under Article 36 of the Family Code (as so hereinafter explained), the answer must be in the affirmative. Void marriages are
inexistent from the very beginning, and no judicial decree is required to establish their nullity.2 As early as the case of People vs.
Aragon3 this Court has underscored the fact that the Revised Penal Code itself does not, unlike the rule then prevailing in Spain,
require the judicial declaration of nullity of a prior void marriage before it can be raised by way of a defense in a criminal case for
bigamy. Had the law contemplated otherwise, said the Court, " an express provision to that effect would or should have been
inserted in the law, (but that in) its absence, (the courts) are bound by (the) rule of strict interpretation" of penal statutes. In
contrast to a voidable marriage which legally exists until judicially annulled (and, therefore, not a defense in a bigamy charge if
the second marriage were contracted prior to the decree of annulment)4 the complete nullity, however, of a previously contracted
marriage, being void ab initio and legally inexistent, can outrightly be defense in an indictment of bigamy.

It has been held that, by virtue of Article 40 of the Family Code, a person may be convicted of bigamy although the first marriage
is ultimately adjudged void ab initio if, at the time the second marriage is contracted, there has as yet no judicial declaration of
nullity of the prior marriage.5 I maintain strong reservations to this ruling. Article 40 of the Family Code reads:

"Article 40. The absolute nullity of the previous marriage may be invoked for purposes of remarriage on the basis solely of the
final judgment declaring such previous marriage void."

It is only "for purpose of remarriage" that the law has expressed that the absolute nullity of the previous marriage may be invoked
"on the basis solely of the final judgment declaring such previous marriage void." It may not be amiss to state that under the
regime of the Civil Code of 1950, the Supreme Court, in Wiegel vs. Judge Sempio-Diy,6 has held that a subsequent marriage of
one of the spouses of a prior void marriage is itself (the subsequent marriage) void if it were contracted before a judicial
declaration of nullity of the previous marriage. Although this pronouncement has been abandoned in a later decision of the court
in Yap vs. Court of Appeals,7 the Family Code, however has seen it fit to adopt the Wiegel rule but only for purpose of remarriage
which is just to say that the subsequent marriage shall itself be considered void. There is no clear indication to conclude that the
Family Code has amended or intended to amend the Revised penal Code or to abandon the settled and prevailing jurisprudence
on the matter.8

A void marriage under Article 36 of the Family Code is a class by itself. The provision has been from Canon law primarily to
reconcile the grounds for nullity of marriage under civil law with those of church laws.9 The "psychological incapacity to comply"
with the essential marital obligations of the spouses is completely distinct from other grounds for nullity which are confined to the
essential or formal requisites of a marriage, such as lack of legal capacity or disqualification of the contracting parties, want of
consent, absence of a marriage license, or the like.

The effects of a marriage attended by psychological incapacity of a party or the parties thereto may be said to have the earmarks
of a voidable, more than a void, marriage, remaining to be valid until it is judicially decreed to be a nullity. Thus, Article 54 of the
Family Code considers children conceived or born of such a void marriage before its judicial declaration of nullity to be legitimate
similar to the rule on a voidable marriage. It is expected, even as I believe it safe to assume, that the spouses’ rights and
obligations, property regime and successional rights would continue unaffected, as if it were a voidable marriage, unless and until
the marriage is judicially declared void for basically two reasons: First, psychological incapacity, a newly-added ground for the
nullity of a marriage under the Family Code, breaches neither the essential nor the formal requisites of a valid marriages;10 and
second, unlike the other grounds for nullity of marriage (i.e., relationship, minority of the parties, lack of license, mistake in the
identity of the parties) which are capable of relatively easy demonstration, psychological incapacity, however, being a mental
state, may not so readily be as evident.11 It would have been logical for the Family Code to consider such a marriage explicitly
voidable rather than void if it were not for apparent attempt to make it closely coincide with the Canon Law rules and
nomenclature.

Indeed, a void marriage due to psychological incapacity appears to merely differ from a voidable marriage in that, unlike the
latter, it is not convalidated by either cohabitation or prescription. It might be recalled that prior to republic Act No. 8533, further
amending the Family Code, an action or defense of absolute nullity of marriage falling under Article 36, celebrated before the
effectivity of the Code, could prescribe in ten years following the effectivity of the Family Code. The initial provision of the ten-
year period of prescription seems to betray a real consciousness by the framers that marriages falling under Article 36 are truly
meant to be inexistent.

Considerations, both logical and practical, would point to the fact that a "void" marriage due to psychological incapacity remains,
for all intents and purposes, to be binding and efficacious until judicially declared otherwise. Without such marriage having first
been declared a nullity (or otherwise dissolved), a subsequent marriage could constitute bigamy. Thus, a civil case questioning
the validity of the first marriage would not be a prejudicial issue much in the same way that a civil case assailing a prior "voidable"
marriage (being valid until annulled) would not be a prejudicial question to the prosecution of a criminal offense for bigamy.

In cases where the second marriage is void on grounds other than the existence of the first marriage, this Court has declared in a
line of cases that no crime of bigamy is committed.12 The Court has explained that for a person to be held guilty of bigamy, it
must, even as it needs only, be shown that the subsequent marriage has all the essential elements of a valid marriage, were it
not for the subsisting first union. Hence, where it is established that the second marriage has been contracted without the
necessary license and thus void,13 or that the accused is merely forced to enter into the second (voidable) marriage,14 no criminal
liability for the crime of bigamy can attach. In both and like instances, however, the lapses refers to the elements required for
contracting a valid marriage. If, then, all the requisites for the perfection of the contract marriage, freely and voluntarily entered
into, are shown to be extant, the criminal liability for bigamy can unassailably arise.

Since psychological incapacity, upon the other hand, does not relate to an infirmity in the elements, either essential or
formal, in contacting a valid marriage, the declaration of nullity subsequent to the bigamous marriage due to that
ground, without more, would be inconsequential in a criminal charge for bigamy. The judicial declaration of nullity of a
bigamous marriage on the ground of psychological incapacity merely nullifies the effects of the marriage but it does not negate
the fact of perfection of the bigamous marriage. Its subsequent declaration of nullity dissolves the relationship of the spouses
but, being alien to the requisite conditions for the perfection of the marriage, the judgment of the court is no defense on the part
of the offender who had entered into it.

Accordingly, I vote to dismiss the petition.

Footnotes

1 TSN, 24 July 1995, pp. 4-11.

2 Record, p. 78.

3 Record, p. 84.
4 TSN, 24 July 1995, pp. 11-12; TSN, 13 September 1995, pp. 6-9.

5 Record, pp. 1-2.

6 Id., p. 66.

7 TSN, 11 December 1996, p. 6.

8 Id., pp. 6-7.

9 Id., pp. 7-8.

10 Penned by Judge Rumoldo F. Fernandez, Rollo, pp. 156-162.

11 Rollo, p. 7.

12 Reyes, L.B., THE REVISED PENAL CODE. Book Two, 14th ed., 1998, p. 907.

13 Rollo, pp. 7-16.

14 Id., pp. 16-18.

15 Record, p. 85.

16 Record, p. 84.

17 Record, p. 148.

18 Record, p. 149.

Mariategui v. Court of Appeals, G.R. No. 57062, 24 January 1992, 205 SCRA 337, 343, citing People v.
19

Borromeo, 218 Phil. 122, 126.

Decision dated November 20, 1995, penned by Judge Epifanio C. Llano of the Regional Trial Court of Argao,
20

Cebu, Branch 26, in Civil Case No. AV-885 (Annex "C", Rollo, p. 43).

21 Record, pp. 16-18.

22 Family Code, Art. 41.

23 Family Code, Art. 2.

24Family Code, Art. 3; Vitug, Civil Law and Jurisprudence, 1993 Edition, pp. 119-120, citing the Family Code,
Articles 2 and 3.

25Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship
between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

 (2) Between brothers and sisters, whether of the full — or half-blood.

26 Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives; whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and stepchildren;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse or
his or her own spouse.

27 Valdez v. Regional Trial Court, Branch 102, Quezon City, G.R. No. 122749, 31 July 1996.

28 Family Code, Art. 54.

VITUG,

1 Article 349, Revised Penal Code.

2 Odayat vs. Amante, 77 SCRA 338; see also People vs Aragon, 100 Phil. 1033.

3 100 Phil 1033.

4 See People vs. Mendoza, 50 O.G. 4767.

5 Mercado vs. Tan, 337 SCRA 122; Te vs. Court of Appeals, 346 SCRA 327.

6 143 SCRA 499.

7 145 SCRA 229.

8I might add, parenthetically, that the necessity of a judicial declaration of nullity of a void marriage even for
purposes of remarriage should refer merely to cases when it can be said that the marriage, at least ostensibly,
has taken place. For instance, no such judicial declaration of nullity would yet be required when either or both
 parties have not at all given consent thereto that verily results in a "no" marriage situation or when the prior
"marriage" is between persons of the same sex.

9 Deliberations of the family Code Revision Committee, 9 August 1996.

10 Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before
the solemnizing officer and their personal declaration that they take other as husband and wife in
the presence of not less than two witnesses of legal age. (53a, 55a)

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio,
except as stated in Article 35(2).

A defect in any of the essential requisites shall not affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

One might observe that insanity, which could be worse than psychological incapacity merely renders a
11

marriage voidable, not void.

12De la cruz vs. Hon. Ejercito, G.R. No. L-40895, 6 November 1975, 68 SCRA 1; Merced vs. Hon. Diez, et. Al.,
109 Phil 155; Zapanta vs. hon. Montessa, et. al., 144 Phil. 1227; People vs. Mora Dumpo, 62 Phil 246; People vs.
Lara, 51 O. G. 4079.

13 People vs. Lara, supra.

14 De la Cruz vs. Hon. Ejercito, supra; Merced vs. Hon. Diez, supra.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:
 I dissent from the decision of the majority, as expressed in the ponencia of Justice
Consuelo Ynares-Santiago. The majority opinion reverses a well-settled doctrine,
established in a long line of decisions, applying Article 349 of the Revised Penal Code.
The reversal finds no support in the plain and ordinary meaning of Article 349. The
reversal also violates the constitutional guarantees of the accused and the separation of
powers.
The majority opinion makes the following ruling:

We hold that the subsequent judicial declaration of nullity of marriage on the

ground of psychological incapacity does not retroact to the date of celebration of
the marriage insofar as the Philippines penal laws are concerned. As such, an
individual who contracts a second or subsequent marriage during the subsistence
of a valid marriage is criminally liable for bigamy, notwithstanding the
subsequent declaration that the second marriage is void ab initio on the ground
of psychological incapacity.

The issue may be stated thus: if the second marriage is void ab initio on grounds
other than the existence of the first marriage, such as psychological incapacity, is there a
crime of bigamy?
In the present case, the prosecution filed the information for bigamy against the
accused Veronico Tenebro before the judicial declaration of nullity of his second
marriage. However, before his conviction for bigamy by the trial court, another court
judicially declared his second marriage void ab initio because of psychological incapacity.
The majority opinion is premised on two basic assertions. First, the mere act of
entering into a second marriage contract while the first marriage subsists consummates
the crime of bigamy, even if the second marriage is void ab initio on grounds other than
the mere existence of the first marriage. Second, a marriage declared by law void ab
initio, and judicially confirmed void from the beginning, is deemed valid for the purpose of
a criminal prosecution for bigamy. I shall examine the correctness of these assertions.
The majority opinion holds that the validity of the second marriage is immaterial and
the mere act of entering into a second marriage, even if void ab initio on grounds
other than the existence of the first marriage, consummates the crime of
bigamy. Thus, the majority opinion states:

As a second or subsequent marriage contracted during the subsistence of petitioners

valid marriage to Villareyes, petitioners marriage to Ancajas would be null and
void ab initio completely regardless of petitioners psychological capacity or
incapacity. Since a marriage contracted during the subsistence of a valid marriage
is automatically void, the nullity of this second marriage is not per se an argument for
the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised
Penal Code criminalizes any person who shall contract a second or subsequent
marriage before the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in the
proper proceedings. A plain reading of the law, therefore, would indicate that the
provision penalizes the mere act of contracting a second or a subsequent marriage
during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990,
during the subsistence of the valid first marriage, the crime of bigamy had already
been consummated. To our mind, there is no cogent reason for distinguishing
between a subsequent marriage that is null and void purely because it is a second
or subsequent marriage, and a subsequent marriage that is null and void on the
ground of psychological incapacity, at least insofar as criminal liability for
bigamy is concerned, x x x. (Bold underscoring supplied; italics in the original)

The majority opinion concedes that the second marriage in the present case is
void ab initio, even without need of judicial declaration. The majority expressly admits that
the second marriage does not legally exist, and thus in legal contemplation never took
place at all. Nevertheless, the majority holds that the second marriage is a marriage that
exists in law sufficient to convict the accused of the crime of bigamy.
The majority opinion holds that a judicial declaration of nullity of Tenebros second
marriage is immaterial in a prosecution for the crime of bigamy. Such judicial declaration
that the second marriage is void from the beginning is absolutely of no moment.
Prior to appellant Tenebros conviction by the trial court of the crime of bigamy, his
second marriage was in fact judicially declared void ab initio on the ground of
psychological incapacity. Tenebro could count in his favor not only an express provision
of law declaring his second marriage void ab initio, he also had a judicial confirmation of
such nullity even prior to his conviction of bigamy by the trial court. The majority opinion,
however, simply brushes aside the law and the judicial confirmation. The majority opinion
holds that the fact that the second marriage is void ab initio on the ground of psychological
incapacity, and judicially declared as void from the very beginning, is immaterial in a
bigamy charge.
For more than 75 years now, this Court has consistently ruled that if the second
marriage is void on grounds other than the existence of the first marriage, there is no
crime of bigamy. The Court first enunciated this doctrine in the 1935 case of People v.
Mora Dumpo,1 where the Court held:

Moro Hassan and Mora Dumpo have been legally married according to the rites and
practices of the Mohammedan religion. Without this marriage being dissolved, it is
alleged that Dumpo contracted another marriage with Moro Sabdapal after which the
two lived together as husband and wife. Dumpo was prosecuted for and convicted of
the crime of bigamy in the Court of First Instance of Zamboanga and sentenced to an
indeterminate penalty with a maximum of eight years and one day of prision mayor
and a minimum of two years, four months and twenty-one days of prision
correccional, with costs. From this judgment the accused interposed an appeal. The
records of the case disclose that it has been established by the defense, without the
prosecution having presented any objection nor evidence to the contrary, that the
alleged second marriage of the accused is null and void according to Mohammedan
rites on the ground that her father had not given his consent thereto.

xxx

It is an essential element of the crime of bigamy that the alleged second marriage,
having all the essential requisites, would be valid were it not for the subsistence of
the first marriage. It appearing that the marriage alleged to have been contracted by
the accused with Sabdapal, her former marriage with Hassan being undissolved,
cannot be considered as such, there is no justification to hold her guilty of the crime
charged in the information. (Emphasis supplied)

In People v. Mendoza,2 decided in 1954, the Court acquitted the accused of bigamy
on the ground that the first marriage was void having been contracted during the
subsistence of a still earlier marriage. The Court held:

The following facts are undisputed: On August 5, 1936, the appellant and Jovita de
Asis were married in Marikina, Rizal. On May 14, 1941, during the subsistence of the
first marriage, the appellant was married to Olga Lema in the City of Manila. On
February 2, 1943, Jovita de Asis died. On August 19, 1949, the appellant contracted
another marriage with Carmencita Panlilio in Calamba, Laguna. This last marriage
gave rise to his prosecution for and conviction of the crime of bigamy.

The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and
void and, therefore, non-existent, having been contracted while his first marriage with
Jovita de Asis August 5, 1936 was still in effect, and that his third marriage to
Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy
because it took place after the death of Jovita de Asis. The Solicitor General, however,
argues that, even assuming that appellants second marriage to Olga Lema is void, he
is not exempt from criminal liability, in the absence of a previous judicial annulment
of said bigamous marriage; and the case of People vs. Cotas, 40 Off. Gaz., 3134, is
cited.

xxx

In the case at bar, it is admitted that appellants second marriage with Olga Lema was
contracted during the existence of his first marriage with Jovita de Asis. Section 29 of
the marriage law (act 3613), in force at the time the appellant contracted his second
marriage in 1941, provides as follows:
Illegal marriages. - Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such first spouse
shall be illegal and void from its performance, unless.

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being alive,
or the absentee being generally considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent marriage, the marriage so
contracted being valid in either case until declared null and void by a competent court.

This statutory provision plainly makes a subsequent marriage contracted by any

person during the lifetime of his first spouse illegal and void from its performance,
and no judicial decree is necessary to establish its invalidity, as distinguished from
mere annullable marriages. There is here no pretense that appellants second marriage
with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, has
been absent for seven consecutive years or generally considered as dead, so as to
render said marriage valid until declared null and void by a competent court.

Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted,

with costs de officio so ordered.

In People v. Lara,3 decided in 1955, the Court acquitted the accused of bigamy on
the ground that his second marriage was void for lack of a marriage license. Declared the
Court in Lara:

It is not disputed that the [accused] and Anacoreta Dalanida were married on July 1,
1947 x x x. Neither is it denied that on August 18, 1951, while the marriage just
referred to was subsisting, appellant entered into a second marriage, this time with
Josefa A. Rosales x x x.

In connection with the contract [for the second marriage], undisputed documentary
evidence show that x x x it was only on August 19, 1951, that the marriage license x x
x was issued x x x.

We are x x x of the opinion that the evidence in this case virtually beyond reasonable
doubt that the marriage license x x x was issued x x x on the date appearing thereon x
x x namely, August 19, 1951.

xxx
Article 53 of the Civil Code of the Philippines, x x x which no marriage shall be
solemnized, one of them being a marriage license duly issued at the time of the
celebration of the marriage x x x. Related to this point, Article 80(3) of the new Civil
Code makes it clear that a marriage performed without the corresponding marriage
license is void, this being nothing more than the legitimate consequence flowing from
the fact that the license is the essence of the marriage contract.

Under the provisions of the Revised Penal Code there can be possible conviction for
bigamy without proof that the accused had voluntarily contracted a second marriage
during the subsistence of his first marriage with another person. Such was the
interpretation given by the Court in People v. Mora Dumpo that: It is an essential
element of the crime of bigamy that the alleged second marriage, having all the
essential requisites, would be valid were it not for the subsistence of the first
marriage.

xxx

As to its validity, the marriage should be examined as of the time it was entered into.
On that precise date all the essential requisites must be present x x x. In the case
before us, the evidence discloses that the marriage preceded the issuance of the
marriage license by one day. The subsequent issuance of the license cannot in law, to
our mind, render valid what in the eyes of the law itself was void from the beginning x
x x. (Emphasis supplied)

In the 1960 case of Merced v. Diez,4 the Court held that a prior case for annulment
of the second marriage on the ground of vitiated consent constitutes a prejudicial question
warranting the suspension of the criminal case for bigamy.5 The Court declared:

Before this Court the sole question raised is whether an action to annul the second
marriage is a prejudicial question in a prosecution for bigamy.

xxx

In order that a person may be held guilty of the crime of bigamy, the second and
subsequent marriage must have all the essential elements of a valid marriage, were
it not for the subsistence of the first marriage. This was the ruling of this Court in
People vs. Dumpo, 62 Phil. 246, x x x.

One of the essential elements of a valid marriage is that the consent thereto of the
contracting parties must be freely and voluntarily given. Without the element of
consent a marriage would be illegal and void. (Section 29, Act No. 3613, otherwise
known as the Marriage Law.) But the question of invalidity cannot ordinarily be
decided in the criminal action for bigamy but in a civil action for annulment. Since the
validity of the second marriage, subject of the action for bigamy, cannot be
determined in the criminal case and since prosecution for bigamy does not lie unless
the elements of the second marriage appear to exist, it is necessary that a decision in a
civil action to the effect that the second marriage contains all the essentials of a
marriage must first be secured.

We have, therefore, in the case at bar, the issue of the validity of the second marriage,
which must be determined before hand in the civil action, before the criminal action
can proceed. We have a situation where the issue of the validity of the second
marriage can be determined or must first be determined in the civil action before the
criminal action for bigamy can be prosecuted. The question of the validity of the
second marriage is, therefore, a prejudicial question, because determination of the
validity of the second marriage is determinable in the civil action and must precede
the criminal action for bigamy.(Emphasis supplied)

In Zapanta v. Montesa,6 decided in 1962, the Court likewise suspended the

proceedings in the criminal case for bigamy because of a subsequent civil action filed by
the accused to annul his second marriage on the ground of vitiated consent. The Court
ruled:

We have heretofore defined a prejudicial question as that which arises in a case, the
resolution of which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal (People vs. Aragon, G.R. No. L-
5930, February 17, 1954). The prejudicial question - we further said - must be
determinative of the case before the court, and jurisdiction to try the same must be
lodged in another court (People vs. Aragon, supra). These requisites are present in the
case at bar. Should the question for annulment of the second marriage pending in the
Court of First Instance of Pampanga prosper on the ground that, according to the
evidence, petitioners consent thereto was obtained by means of duress, force and
intimidation, it is obvious that his act was involuntary and can not be the basis of his
conviction for the crime of bigamy with which he was charged in the Court of First
Instance of Bulacan. Thus the issue involved in the action for the annulment of the
second marriage is determinative of petitioners guilt or innocence of the crime of
bigamy. On the other hand, there can be no question that the annulment of petitioners
marriage with respondent Yco on the grounds relied upon in the complaint filed in the
Court of First Instance of Pampanga is within the jurisdiction of said court.

In De la Cruz v. Ejercito,7 decided in 1975, the Court, speaking through Justice

Ramon C. Aquino, dismissed a bigamy case against the accused in view of a final
judgment the accused obtained annulling her second marriage on the ground of vitiated
consent. The Court, ruling that the annulment of the second marriage rendered the
criminal case moot and untenable, explained:
The issue is whether the bigamy case became moot or untenable after the second
marriage, on which the prosecution for bigamy is based, was annulled.

The City Fiscal of Angeles City contends that the lower court acted correctly in
denying the motion to dismiss the bigamy charge. He argues that the decision in the
annulment case should be set up as a defense by Milagros de la Cruz during the trial
and that it would not justify the outright dismissal of the criminal case.

On the other hand, the Solicitor General manifested that the stand of Milagros de la
Cruz should be sustained because one element of bigamy is that the alleged second
marriage, having all the requisites, would be valid were it not for the subsistence of
the first marriage (People vs. Mora Dumpo, 62 Phil. 246, 248; Merced vs. Hon. Diez,
109 Phil. 155; Zapanta vs. Montesa, 114 Phil. 1227).

We hold that the finding in the annulment case that the second marriage contracted
by Milagros de la Cruz with Sergeant Gaccino was a nullity is determinative of her
innocence and precludes the rendition of a verdict that she committed bigamy. To
try the criminal case in the face of such a finding would be unwarranted. (Emphasis
supplied)

These decisions of the Court declaring there is no crime of bigamy if the second
marriage is void on grounds other than the existence of the first marriage merely apply
the clear language and intent of Article 349 of the Revised Penal Code. This Article
provides as follows:

Article 349. Bigamy. - The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of judgment rendered in the proper proceedings.

Under Article 349 of the Revised Penal Code, the essential elements of the crime of
bigamy are:
1. The offender is legally married;
2. The marriage is not legally dissolved;
3. The offender contracts a second or subsequent marriage;
4. The second or subsequent marriage is valid except for the existence of the first
marriage.
The first three elements reiterate the language of the law. The last element, the validity
of the second marriage except for the existence of the first marriage, necessarily follows
from the language of the law that the offender contracts a second or subsequent marriage.
 If the second marriage is void ab initio on grounds other than the existence of the first
marriage, then legally there exists no second marriage. Article 35 of the Family Code
enumerates the marriages that are void from the beginning. The succeeding article,
Article 36, declares that a marriage contracted by one psychologically incapacitated shall
likewise be void. Article 1409 of the Civil Code declares inexistent and void from the
beginning contracts expressly x x x declared void by law. Thus, a marriage contracted by
one psychologically incapacitated at the time of the marriage is legally inexistent and
void from the beginning. Such void marriage cannot constitute a second marriage to
sustain a conviction for bigamy under Article 349 of the Revised Penal Code.
If the second marriage is void solely because of the existence of the first marriage,
the nullity of the second marriage proceeds from its illegality or bigamous nature.
However, if the second marriage is void on grounds other than the existence of the first
marriage, the nullity does not proceed from its illegality or bigamous nature. The first
situation results in the crime of bigamy while the second does not. This is clear from
Article 1411 of the Civil Code which provides:

Article 1411. When the nullity proceeds from the illegality of the cause or object of
the contract, and the act constitutes a criminal act, both parties being in pari delicto,
they shall have no action against each other, and both shall be prosecuted. x x x.

The rule shall be applicable when only one of the parties is guilty; x x x.

Thus, if the second marriage Is void because of psychological incapacity, the nullity does
not proceed from an illegal or criminal cause, and no prosecution could ensue. However,
if the second marriage is void solely because of the existence of the first marriage, the
nullity proceeds from an illegal or criminal cause, and thus prosecution should follow.
The plain and ordinary meaning of Article 349 could only be that the second marriage
must be valid were it not for the existence of the first marriage. This has been the
consistent interpretation of the Court for more than seven decades since the enactment
of the Revised Penal Code. Text writers in criminal law have never entertained or
advanced any other interpretation. There is no cogent reason to depart from the well-
established jurisprudence on Article 349 of the Revised Penal Code.
Even assuming, for the sake of argument, there is doubt on the interpretation of
Article 349, substantive due process of law requires a strict interpretation of Article 349
against the State and a liberal interpretation in favor of the accused. The majority opinion
reverses this principle and interprets Article 349 of the Revised Penal Code strictly against
the accused and liberally in favor of the State.
Article 349 of the Revised Penal Code does not state that it is immaterial whether the
second marriage is valid or void ab initio. This Article does not also state that the mere
act of celebration of the second marriage, while the first marriage subsists, constitutes
the crime of bigamy. Article 349 speaks of a second or subsequent marriage which, as
commonly understood and applied consistently by the Court, means a valid second
marriage were it not for the existence of the first marriage.
 To hold that the validity of the second marriage is immaterial, as the majority opinion
so holds, would interpret Article 349 too liberally in favor of the State and too strictly
against the accused. This violates the well-settled principle of statutory construction that
the Court declared in People v. Garcia:8

Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged
or extended by intendment, implication, or by any equitable considerations. In other
words, the language cannot be enlarged beyond the ordinary meaning of its terms in
order to carry into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any reasonable doubt,
will be considered within the statutes operation. They must come clearly within both
the spirit and the letter of the statute, and where there is any reasonable doubt, it must
be resolved in favor of the person accused of violating the statute; that is, all questions
in doubt will be resolved in favor of those from whom the penalty is sought.
(Statutory Construction, Crawford, pp. 460-462.)

The principle of statutory construction that penal laws are liberally construed in favor
of the accused and strictly against the State is deeply rooted in the need to protect
constitutional guarantees.9 This principle serves notice to the public that only those acts
clearly and plainly prohibited in penal laws are subject to criminal sanctions. To expand
penal laws beyond their clear and plain meaning is no longer fair notice to the public.
Thus, the principle insures observance of due process of law. The principle also prevents
discriminatory application of penal laws. State prosecutors have no power to broaden
arbitrarily the application of penal laws beyond the plain and common understanding of
the people who are subject to their penalties. Hence, the principle insures equal protection
of the law.
The principle is also rooted in the need to maintain the separation of powers by
insuring that the legislature, and not the judiciary, defines crimes and prescribes their
penalties.10 As aptly stated by the U.S. Supreme Court, speaking through Chief Justice
John Marshall, in United States v. Wiltberger.11

The rule that penal laws are to be construed strictly, is perhaps not much less old than
construction itself. It is founded on the tenderness of the law for the rights of
individuals, and on the plain principle that the power of punishment is vested in the
legislature, not in the judicial department. It is the legislature, not the Court, which is
to define a crime, and ordain its punishment. (Emphasis supplied)

This Court has specifically applied the rule on strict interpretation of a criminal statute
to the crime of bigamy. In People v. Aragon,12 decided in 1957, the Court ruled:

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845, 50
Off. Gaz., [10] 4767). In this case the majority of this Court declared:
The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly
makes a subsequent marriage contracted by any person during the lifetime of his first
spouse illegal and void from its performance, and no judicial decree is necessary to
establish its invalidity, as distinguished from mere annullable marriages. There is here
no pretense that appellants second marriage with Olga Lema was contracted in the
belief that the first spouse, Jovita de Asis, had been absent for seven consecutive years
or generally considered as dead, so as to render said marriage valid until declared null
and void by a subsequent court.

We are aware of the very weighty reasons expressed by Justice Alex Reyes in his
dissent in the case above-quoted. But these weighty reasons notwithstanding, the very
fundamental principle of strict construction of penal laws in favor of the accused,
which principle we may not ignore, seems to justify our stand in the above-cited
case of People vs. Mendoza. Our Revised Penal Code is of recent enactment and had
the rule enunciated in Spain and in America requiring judicial declaration of nullity
of ab initio void marriages been within the contemplation of the legislature, an
express provision to that effect would or should have been inserted in the law. In its
absence, we are bound by said rule of strict interpretation already adverted to.
(Emphasis supplied)

The majority opinion interprets Article 349 of the Revised Penal Code to mean that a
second marriage, even if void ab initio on grounds other than the existence of the first
marriage, gives rise to the crime of bigamy. This dissent interprets Article 349 to mean
that for the crime of bigamy to exist, the second marriage must be a valid marriage except
for the existence of the first marriage. Otherwise, the language of the law would mean
nothing when it expressly declares certain marriages void ab initio or void from the very
beginning.
These opposing interpretations of a criminal statute call for the application of another
will-established rule that as between two reasonable interpretations, the more lenient one
should be applied to penal statutes. A leading English decision puts it in this wise:

If there is a reasonable interpretation which will avoid the penalty in any particular
case, we must adopt that construction. If there are two reasonable constructions, we
must give the more lenient one. That is the settled rule for construction of penal
sections.13

In summary, the majority opinion reverses the well-settled doctrine that there is no
bigamy if the second marriage is void on grounds other than the existence of the first
marriage. The Court has consistently applied this doctrine in several cases since 1935.
The majority opinion reverses this doctrine by disregarding the plain and ordinary
meaning of the clear language of a criminal statute - Article 349 of the Revised Penal
Code. The majority opinion then proceeds to interpret the criminal statute strictly against
the accused and liberally in favor of the State. The majority opinion makes this new
interpretation even as Article 349 has remained unchanged since its enactment into law
on 1 January 1932. The majority opinion effectively amends the language of Article 349
of the Revised Penal Code in violation of the separation of powers.
A final word. Even before appellant Tenebros conviction of the crime of bigamy, he
had already secured a judicial declaration of nullity of his second marriage on the ground
of psychological incapacity. This judicial declaration merely confirmed what the law
already explicitly provides - that a marriage contracted by one psychologically
incapacitated to marry is void from the very beginning and thus legally inexistent.
Inexplicably, the majority opinion still holds that the second marriage exists to warrant
Tenebros conviction of the crime of bigamy.
Accordingly, I dissent from the majority opinion and vote to grant the petition.

1
62 Phil. 246 (1935).
2
95 Phil. 845 (1954).
3
51 O.G. 4079, 14 February 1955.
4
109 Phil. 155(1960).
5
In the 1954 case of People v. Aragon (94 Phil. 357), the Court refused to consider as a prejudicial question
the action to annul the second marriage because the accused was the one who employed force
and intimidation on the woman in the second marriage. The Court said that the accused may not
use his own malfeasance to defeat the action based on his criminal act. The Court also said that if
the woman in the second marriage were she the one charged with bigamy, [she] could perhaps
raise said force or intimidation as a defense, because she may not be considered as having freely
and voluntarily committed the act if she was forced to the marriage by intimidation.
6
No. L-14534, 28 February 1962, 4 SCRA 510.
7
No. L-40895, 6 November 1975, 68 SCRA 1.
8
85 Phil. 651(1950).
9
ESKRIDGE, JR., FRICKLEY AND GARRET, LEGISLATION AND STATUTORY INTERPRETATION 362
(2000).
10
Ibid., p. 363.
11
18 U.S. 76(1820).
12
100 Phil. 1033(1957).
13
Tuck & Sons v. Priester, 19 QBD 629 (1887), cited in Cross on Statutory Construction, p. 172, 3rd Edition
(1995).
MERLINDA MONTANEZ, -versusRepublic oi :!1-.: Phi!ippin~s SupL, ,._;Court ]\! i!1i Ia Compl;;;iti~\nt, G.R.
No. 1Hi089 Present: VELASCO, JR.,.!., Chairperson, LEONARDO-DE CASTRO,* PERAIJTA, ABAD, and
MENDOZA, .JJ. Pronaulgafcd: LOURDES TAJOLOSA CIPHL\i ;O, ResporhkiiL 22 Oc lober __ -4012 · X - - - - -
- - - - - - - - - - - - - - - - - - ·· - - - - - - - - - - - - - - - - V( ~~-(/ tY!_~ X DU:CISION PERALTA, J.: For our resolution
is a petition l~)r review on certiorari which seeks to annul the Order' dated September 24, 2007 of the
Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, issued in Criminal Case No. 4990- SPL which
dismissed the lnf(mnation f()r Bigamy filed against respondent Lourdes Tajolosa Cipriano. Also assailed is
the RTC l~esolution 2 dated January 2, 2008 denying the motion for reconsideration. Designated Acting
I'Vlcmbcr, per Special Order No. 1343 dated October 9. :201:2. Rollo, pp. 54-55; Per Judge Sonia T. Yu-
Ctsano. Jd. at 52-53. I / c--- / tl Decision 2 G.R. No. 181089 On April 8, 1976, respondent married
Socrates Flores (Socrates) in Lezo, Aklan.3 On January 24, 1983, during the subsistence of the said
marriage, respondent married Silverio V. Cipriano (Silverio) in San Pedro, Laguna.4 In 2001, respondent
filed with the RTC of Muntinlupa, Branch 256, a Petition for the Annulment of her marriage with
Socrates on the ground of the latter’s psychological incapacity as defined under Article 36 of the Family
Code, which was docketed as Civil Case No. 01-204. On July 18, 2003, the RTC of Muntinlupa, Branch
256, rendered an Amended Decision5 declaring the marriage of respondent with Socrates null and void.
Said decision became final and executory on October 13, 2003.6 On May 14, 2004, petitioner Merlinda
Cipriano Montañez, Silverio’s daughter from the first marriage, filed with the Municipal Trial Court of
San Pedro, Laguna, a Complaint7 for Bigamy against respondent, which was docketed as Criminal Case
No. 41972. Attached to the complaint was an Affidavit8 (Malayang Sinumpaang Salaysay) dated August
23, 2004, thumbmarked and signed by Silverio,9 which alleged, among others, that respondent failed to
reveal to Silverio that she was still married to Socrates. On November 17, 2004, an Information10 for
Bigamy was filed against respondent with the RTC of San Pedro, Laguna, Branch 31. The case was
docketed as Criminal Case No. 4990-SPL. The Information reads: That on or about January 24, 1983, in
the Municipality of San Pedro, Province of Laguna, Philippines, and within the jurisdiction of this
Honorable Court, the said accused did then and there willfully, unlawfully and feloniously contract a
second or subsequent marriage with one SILVERIO CIPRIANO VINALON while her first marriage with
SOCRATES FLORES has not been judicially dissolved by proper judicial
authorities.11 3 Id. at 60. 4 Id. at 62. 5 Id. at 66-68. 6 Id. at 69. 7 Id. at
71. 8 Id. at 72. 9 Died on May 27, 2007; id. At 59. 10 Id. at 75. 11 Id. Decision 3 G.R. No. 181089 On July
24, 2007 and before her arraignment, respondent, through counsel, filed a Motion to Quash Information
(and Dismissal of the Criminal Complaint)12 alleging that her marriage with Socrates had already been
declared void ab initio in 2003, thus, there was no more marriage to speak of prior to her marriage to
Silverio on January 24, 1983; that the basic element of the crime of bigamy, i.e., two valid marriages, is
therefore wanting. She also claimed that since the second marriage was held in 1983, the crime of
bigamy had already prescribed. The prosecution filed its Comment13 arguing that the crime of bigamy
had already been consummated when respondent filed her petition for declaration of nullity; that the
law punishes the act of contracting a second marriage which appears to be valid, while the first marriage
is still subsisting and has not yet been annulled or declared void by the court. In its Order14 dated
August 3, 2007, the RTC denied the motion. It found respondent's argument that with the declaration of
nullity of her first marriage, there was no more first marriage to speak of and thus the element of two
valid marriages in bigamy was absent, to have been laid to rest by our ruling in Mercado v. Tan15 where
we held: In the instant case, petitioner contracted a second marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage
declared void only after complainant had filed a letter-complaint charging him with bigamy. For
contracting a second marriage while the first is still subsisting, he committed the acts punishable under
Article 349 of the Revised Penal Code. That he subsequently obtained a judicial declaration of the nullity
of the first marriage was immaterial. To repeat, the crime had already been consummated by then. x x
x16 12 Id. at 80-81. 13 Id. at 82-83. 14 Id. at 84. 15 G.R. No. 137110,
August 1, 2000, 337 SCRA 122; 391 Phil. 809 (2000). 16 Mercado v. Tan, supra, at 133; at 824. Decision
4 G.R. No. 181089 As to respondent's claim that the action had already prescribed, the RTC found that
while the second marriage indeed took place in 1983, or more than the 15-year prescriptive period for
the crime of bigamy, the commission of the crime was only discovered on November 17, 2004, which
should be the reckoning period, hence, prescription has not yet set in. Respondent filed a Motion for
Reconsideration17 claiming that the Mercado ruling was not applicable, since respondent contracted
her first marriage in 1976, i.e., before the Family Code; that the petition for annulment was granted and
became final before the criminal complaint for bigamy was filed; and, that Article 40 of the Family Code
cannot be given any retroactive effect because this will impair her right to remarry without need of
securing a declaration of nullity of a completely void prior marriage. On September 24, 2007, the RTC
issued its assailed Order,18 the dispositive portion of which reads: Wherefore, the Order of August 3,
2007 is reconsidered and set aside. Let a new one be entered quashing the information. Accordingly, let
the instant case be DISMISSED. SO ORDERED. In so ruling, the RTC said that at the time the accused had
contracted a second marriage on January 24, 1983, i.e., before the effectivity of the Family Code, the
existing law did not require a judicial declaration of absolute nullity as a condition precedent to
contracting a subsequent marriage; that jurisprudence before the Family Code was ambivalent on the
issue of the need of prior judicial declaration of absolute nullity of the first marriage. The RTC found that
both marriages of respondent took place before the effectivity of the Family Code, thus, considering the
unsettled state of jurisprudence on the need for a prior declaration of absolute
nullity 17 Rollo, pp. 85-87. 18 Id. at 88-89. Decision 5 G.R. No. 181089
of marriage before commencing a second marriage and the principle that laws should be interpreted
liberally in favor of the accused, it declared that the absence of a judicial declaration of nullity should
not prejudice the accused whose second marriage was declared once and for all valid with the
annulment of her first marriage by the RTC of Muntinlupa City in 2003. Dissatisfied, a Motion for
Reconsideration was filed by the prosecution, but opposed by respondent. In a Resolution dated January
2, 2008, the RTC denied the same ruling, among others, that the judicial declaration of nullity of
respondent's marriage is tantamount to a mere declaration or confirmation that said marriage never
existed at all, and for this reason, her act in contracting a second marriage cannot be considered
criminal. Aggrieved, petitioner directly filed the present petition with us raising the following issues: I.
Whether the judicial nullity of a first marriage prior to the enactment of the Family Code and the
pronouncement in Wiegel vs. Sempio-Diy on the ground of psychological incapacity is a valid defense for
a charge of bigamy for entering into a second marriage prior to the enactment of the Family Code and
the pronouncement in Wiegel vs. Sempio-Diy? II. Whether the trial court erred in stating that the
jurisprudence prior to the enactment of the Family Code and the pronouncement in Wiegel vs. Sempio-
Diy regarding the necessity of securing a declaration of nullity of the first marriage before entering a
second marriage ambivalent, such that a person was allowed to enter a subsequent marriage without
the annulment of the first without incurring criminal liability.19 Preliminarily, we note that the instant
petition assailing the RTC's dismissal of the Information for bigamy was filed by private complainant and
not by the Office of the Solicitor General (OSG) which should represent the government in all judicial
proceedings filed before us.20 19 Id. at 8-9. 20 Section 35, Chapter
12, Title III of Book IV of the 1987 Administrative Code provides: Decision 6 G.R. No. 181089
Notwithstanding, we will give due course to this petition as we had done in the past. In Antone v.
Beronilla, 21 the offended party (private complainant) questioned before the Court of Appeals (CA) the
RTC's dismissal of the Information for bigamy filed against her husband, and the CA dismissed the
petition on the ground, among others, that the petition should have been filed in behalf of the People of
the Philippines by the OSG, being its statutory counsel in all appealed criminal cases. In a petition filed
with us, we said that we had given due course to a number of actions even when the respective
interests of the government were not properly represented by the OSG and said: In Labaro v. Panay, this
Court dealt with a similar defect in the following manner: It must, however, be stressed that if the public
prosecution is aggrieved by any order ruling of the trial judge in a criminal case, the OSG, and not the
prosecutor, must be the one to question the order or ruling before us. x x x Nevertheless, since the
challenged order affects the interest of the State or the plaintiff People of the Philippines, we opted not
to dismiss the petition on this technical ground. Instead, we required the OSG to comment on the
petition, as we had done before in some cases. In light of its Comment, we rule that the OSG has ratified
and adopted as its own the instant petition for the People of the Philippines. (Emphasis
supplied)22
Sec. 35. Powers and Functions. - The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the
following specific powers and functions: (1) Represent the Government in the Supreme Court and the
Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme
Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in
which the Government or any officer thereof in his official capacity is a party. As an exception to this
rule, the Solicitor General is allowed to: (8) Deputize legal officers of government departments, bureaus,
agencies and offices to assist the Solicitor General and appear or represent the Government in cases
involving their respective offices, brought before the courts and exercise supervision and control over
such legal officers with respect to such cases. 21 G.R. No. 183824, December 8, 2010, 637 SCRA 615. 22
Antone v. Beronilla, supra, at 623. Decision 7 G.R. No. 181089 Considering that we also required the OSG
to file a Comment on the petition, which it did, praying that the petition be granted in effect, such
Comment had ratified the petition filed with us. As to the merit of the petition, the issue for resolution is
whether or not the RTC erred in quashing the Information for bigamy filed against respondent. Article
349 of the Revised Penal Code defines and penalizes bigamy as follow: Art. 349. Bigamy. – The penalty
of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings. The elements of the
crime of bigamy are: (a) the offender has been legally married; (b) the marriage has not been legally
dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code; (c) that he contracts a second or subsequent marriage; and (d) the second or
subsequent marriage has all the essential requisites for validity. The felony is consummated on the
celebration of the second marriage or subsequent marriage.23 It is essential in the prosecution for
bigamy that the alleged second marriage, having all the essential requirements, would be valid were it
not for the subsistence of the first marriage.24 In this case, it appears that when respondent contracted
a second marriage with Silverio in 1983, her first marriage with Socrates celebrated in 1976 was still
subsisting as the same had not yet been annulled or declared void by a competent authority. Thus, all
the elements of bigamy were 23 Manuel v. People, G.R. No. 165842,
November 29, 2005, 476 SCRA 461, 477; 512 Phil. 818, 833-834 (2005). 24 Id. at 833. Decision 8 G.R. No.
181089 alleged in the Information. In her Motion to Quash the Information, she alleged, among others,
that: x x x x 2. The records of this case would bear out that accused's marriage with said Socrates Flores
was declared void ab initio on 14 April 2003 by Branch 256 of the Regional Trial Court of Muntinlupa
City. The said decision was never appealed, and became final and executory shortly thereafter. 3. In
other words, before the filing of the Information in this case, her marriage with Mr. Flores had already
been declared void from the beginning. 4. There was therefore no marriage prior to 24 January 1983 to
speak of. In other words, there was only one marriage. 5. The basic element of the crime of bigamy, that
is, two valid marriages, is therefore wanting.25 Clearly, the annulment of respondent's first marriage on
the ground of psychological incapacity was declared only in 2003. The question now is whether the
declaration of nullity of respondent's first marriage justifies the dismissal of the Information for bigamy
filed against her. We rule in the negative. In Mercado v. Tan, 26 we ruled that the subsequent judicial
declaration of the nullity of the first marriage was immaterial, because prior to the declaration of nullity,
the crime of bigamy had already been consummated. And by contracting a second marriage while the
first was still subsisting, the accused committed the acts punishable under Article 349 of the Revised
Penal Code. 25 Rollo, p. 80. 26 Supra note 15, at 133; at 824. Decision 9
G.R. No. 181089 In Abunado v. People, 27 we held that what is required for the charge of bigamy to
prosper is that the first marriage be subsisting at the time the second marriage is contracted.28 Even if
the accused eventually obtained a declaration that his first marriage was void ab initio, the point is, both
the first and the second marriage were subsisting before the first marriage was annulled.29 In Tenebro
v. CA, 30 we declared that although the judicial declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum
between the spouses is concerned, it is significant to note that said marriage is not without legal effects.
Among these effects is that children conceived or born before the judgment of absolute nullity of the
marriage shall be considered legitimate. There is, therefore, a recognition written into the law itself that
such a marriage, although void ab initio, may still produce legal consequences. Among these legal
consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal
laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the consequences of contracting multiple
marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.31
And in Jarillo v. People, 32 applying the foregoing jurisprudence, we affirmed the accused's conviction
for bigamy, ruling that the moment the accused contracted a second marriage without the previous one
having been judicially declared null and void, the crime of bigamy was already consummated because at
the time of the celebration of the second marriage, 27 G.R. No.
159218, March 30, 2004, 426 SCRA 562. 28 Id. at 568 29 Id. 30 G.R. No. 150758, February 18, 2004, 423
SCRA 272; 467 Phil. 723 (2004). 31 Id. at 284; at 744. 32 G.R. No. 164435, September 29, 2009, 601 SCRA
236. Decision 10 G.R. No. 181089 the accused’s first marriage which had not yet been declared null and
void by a court of competent jurisdiction was deemed valid and subsisting. Here, at the time respondent
contracted the second marriage, the first marriage was still subsisting as it had not yet been legally
dissolved. As ruled in the above-mentioned jurisprudence, the subsequent judicial declaration of nullity
of the first marriage would not change the fact that she contracted the second marriage during the
subsistence of the first marriage. Thus, respondent was properly charged of the crime of bigamy, since
the essential elements of the offense charged were sufficiently alleged. Respondent claims that Tenebro
v. CA33 is not applicable, since the declaration of nullity of the previous marriage came after the filing of
the Information, unlike in this case where the declaration was rendered before the information was
filed. We do not agree. What makes a person criminally liable for bigamy is when he contracts a second
or subsequent marriage during the subsistence of a valid marriage. Parties to the marriage should not be
permitted to judge for themselves its nullity, for the same must be submitted to the judgment of
competent courts and only when the nullity of the marriage is so declared can it be held as void, and so
long as there is no such declaration the presumption is that the marriage exists.34 Therefore, he who
contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy.35 Anent respondent's contention in her Comment that since her
two marriages were contracted prior to the effectivity of the Family Code, Article 40 of the Family Code
cannot be given retroactive effect because this 33 Supra note 30. 34
Landicho v. Relova, G.R. No. L-22579, February 23, 1968, 22 SCRA 731, 734; 130 Phil. 745, 748 (1968). 35
Id. Decision 11 G.R. No. 181089 will impair her right to remarry without need of securing a judicial
declaration of nullity of a completely void marriage. We are not persuaded. In Jarillo v. People, 36 where
the accused, in her motion for reconsideration, argued that since her marriages were entered into
before the effectivity of the Family Code, then the applicable law is Section 29 of the Marriage Law (Act
3613),37 instead of Article 40 of the Family Code, which requires a final judgment declaring the previous
marriage void before a person may contract a subsequent marriage. We did not find the argument
meritorious and said: As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the
declaration that Article 40, which is a rule of procedure, should be applied retroactively because Article
256 of the Family Code itself provides that said "Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights." The Court went on to explain, thus: The fact that
procedural statutes may somehow affect the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application of procedural laws is not violative of any right
of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested
right may attach to, nor arise from, procedural laws. In Marbella-Bobis v. Bobis, the Court pointed out
the danger of not enforcing the provisions of Article 40 of the Family Code, to
wit: 36 G.R. No. 164435, June 29, 2010, 622 SCRA 24. 37 Section 29 of
Act No. 3613 (Marriage Law), which provided: Illegal marriages. — Any marriage subsequently
contracted by any person during the lifetime of the first spouse shall be illegal and void from its
performance, unless: (a) The first marriage was annulled or dissolved; (b) The first spouse had been
absent for seven consecutive years at the time of the second marriage without the spouse present
having news of the absentee being alive, or the absentee being generally considered as dead and
believed to be so by the spouse present at the time of contracting such subsequent marriage, the
marriage as contracted being valid in either case until declared null and void by a competent court.
Decision 12 (i.R. No. 181080 In the case ut bid. J •• ;:: 1,ul•,L;nl's ~_!.._,~~· iiik11l is l1l obtain a judicial
d~clciJ(.,(l(>•\ \Jl llilllity ,,j' hi,) rn~,[ lildliiuge and therealtcr lu im\,Lc ll•"l 1C.:•) :; (;J dn: Jlr:;L ;\ party
llli.l)' even enter into a marriage awmc ur the: t:r 24, 2007 :..u.d the 1\esolution dated January 2, 2008 of
the Rcgidrwl Trial Court of S,

Today is Tuesday, August 21, 2018

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escaño.

ANGELITA JONES., petitioner-appellant-appellee,
vs.
FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee.

Salvador E. Imperial for petitioner-appellant-appellee.

Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

CONCEPCION, J.:

This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate
proceedings of the deceased Marciana Escaño, denying thereby: (1) the motion to appoint a new administrator and (2) to set
aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of
the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said
properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933. granting to the administrator
fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and the final account; and (5) ordering the
presentation of another project of partition and final account.

As Marciana Escaño had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate,
and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by
her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita
Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its
order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana
Escaño, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a
part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita
Jones. The latter, who was a minor, was represented in the proceedings by her guardian Paz Escaño de Corominas. The project
of partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective
grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the only heir
of her mother, the deceased Marciana Escaño; that there never was a valid marriage between her mother and Felix Hortiguela or
that had such marriage been celebrated, it was null and void; and even granting that it were valid, Felix Hortiguela was not
entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a minor and that during the hearing of the
intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; that
during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of
P10,000 charged by the administrator were highly unreasonable and unconscionable. She prayed: (a) for the reopening of the
proceedings; (b) that her husband appointed special administrator without bond; (c) that her mother's alleged marriage to Felix
Hortiguela be declared null and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null
and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid
marriage between Felix Hortiguela and Marciana Escaño, Hortiguela be declared not entitled to the widower's usufruct; the errors
in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the
properties be made.
After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March 14, 1935,
the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom.

The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged
marriage to Marciana Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño married Arthur W. Jones in the suburban catholic church of San Nicolas,
Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In
October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escaño, to
have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W.
Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that
said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said
order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was
published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920.
On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having
been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escaño were married before
the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of
October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the
marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the
marriage so contracted by Felix Hortiguela and Marciana Escaño is null and void. This court does not believe so. For the
purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration
of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the
necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law
only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and
the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño's former husband should be counted from
January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927,
more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escaño, the
marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones assigns as
one of the errors of the court its having declared that failure to record said marriage does not affect the efficacy and validity
thereof.

On this point, the court a quo very correctly stated as follows:

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must
transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined
not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such
certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in
its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said:

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter
was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not
invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity
were not present, the forwarding of a copy of the marriage certificate not being one said requisites."
In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries,
marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to
such an extent that other proofs established by law may not be presented or admitted at trial, when through the
omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was
not duly entered or recorded in the municipal register."

Furthermore, Marciana Escaño believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter
Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated
Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have
behaved so if she had not believed her father to be dead. Still furthermore, according to section 334, No. 24, of the Code of Civil
Procedure, a person not heard from in seven years is presumed to be dead.

Inasmuch as Felix Hortiguela was lawfully married to Marciana Escaño and was divorced from her at the time of her death there
is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6
and 7 Manresa, pages 497-499 and 134-141, respectively).

Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and
her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the
properties of the intestate estate.

The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein as one of
the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the petitioner has
desisted from her intention relative to this alleged ground for the nullity of the proceedings.

As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum of
P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife. Taking into
consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar has rendered his
services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and moderate compensation.
Angelita Jones' objection to the effect that she had no reason to contribute to the payment of Faelnar's fees is untenable,
considering the fact that said attorney's professional services were rendered for the benefit of the administration of the estate of
the deceased Escaño prior to the controversy provoked by said heiress. As to the remainder of P2,000, said administrator is
entitled to collect the sum of P4 for every day employed by him as such, and considering the importance of the inheritance in
question and the time elapsed since the inception of the administration proceedings this court is of the opinion that the sum of
P2,000 is an adequate compensation for said administrator's services.

Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees and the
order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the presentation of
another project of partition and final account? These are the questions raised by Felix Hortiguela and this court is of the opinion
that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken therefrom, the court has lost
jurisdiction over the case and it could not resume it under section 113 of the Code of Civil Procedure or under section 598 thereof
because the above-cited section refer to grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based.

For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the order of
January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account and the project
of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of partition; denied the
appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative to declaration of heirs; and
holds it unwarranted to make a finding as to whether or not the properties of this intestate estate are paraphernal properties of
the deceased Marciana Escaño reserving to the parties the right to discuss which are paraphernal and which are conjugal
properties. So ordered.
Avanceña, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Today is Tuesday, August 21, 2018

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 111717 October 24, 1994

NENITA BIENVENIDO, petitioner,

vs.
HON. COURT OF APPEALS, LUISITA CAMACHO and LUIS FAUSTINO C. CAMACHO, respondents.

Abbas and Associates for petitioner.

Rolfando P. Quimbo for private respondents.

MENDOZA, J.:

This is a petition for review of the decision1 of the Court of Appeals in CA-G.R. CV No. 24893, the dispositive portion of which
reads:

WHEREFORE, and upon all the foregoing, the decision of the court below dated August 29, 1989 is
REVERSED. The deed of sale executed by the late Aurelio Camacho in favor of defendant Nenita T.
Bienvenido and Transfer Certificate of Title No. 326681 of the Register of Deeds of Quezon City issued in
her name are ANNULLED and in lieu thereof, a new transfer certificate of title in the name of the spouses
Aurelio P. Camacho and Luisita C. Camacho shall ISSUE, herein declaring said spouses the owners of
the property described in par. 8. of the complaint and DISMISSING the other prayers in the complaint as
well as the defendant's counterclaim as baseless or without sufficient evidence in support thereof. With
costs against the appellee. 2
Petitioner filed a motion for reconsideration but her motion was denied in a resolution of the Court of Appeals promulgated on
August 19, 1993. 3

The background of this case is as follows:

Aurelio P. Camacho married Consejo Velasco in Manila on October 3, 1942. On February 6, 1962, without his marriage to
Consejo Velasco being dissolved, Aurelio P. Camacho contracted another marriage with respondent Luisita C. Camacho (Luisita)
with whom he had been living since 1953 and by whom he begot a child, respondent Aurelio Luis Faustino C. Camacho (Chito)
born on May 22, 1961. The marriage was solemnized in Tokyo, Japan where Aurelio and Luisita had been living since 1958.

There were instances during Luisita and Aurelio's marriage when, because of their quarrels, one or the other left the dwelling
place for long periods of time. In her case Luisita stayed on those occasions at various times in Davao City, Hongkong or Japan.

In 1967 Aurelio met petitioner Nenita T. Bienvenido, who had been estranged from her husband, Luis Rivera. Aurelio courted her
and apparently won her heart because from June 1968 until Aurelio's death on May 28, 1988, he lived with her, the last time in a
duplex apartment on 84 Scout Delgado Street, Quezon City. Petitioner's daughter, Nanette, stayed with them as did Aurelio's
son, Chito, who lived with them for about a year in 1976.

On April 30, 1982, Aurelio bought the house and the lot on Delgado Street in which they were staying from the owners, Paz
Lorenzo Infante and Suzette Infante-Moñozca. In the deed of sale and Transfer Certificate of Title No. 288350 of the Registry of
Deeds of Quezon City, issued in his name, Aurelio was described as single.

On November 26, 1984, Aurelio executed a deed of sale of the property in favor of petitioner Nenita in consideration of the sum
of P250,000.00, by virtue of which Transfer Certificate of Title No. 326681 was issued in petitioner's name on January 11, 1985.

Between 1985 and 1987 Nenita and Luisita came to know each other. How they did is the subject of conflicting versions. Luisita
claims that Nenita called her (Luisita's) residence several times, looking for Aurelio because the latter had allegedly left their
dwelling place. Petitioner, according to Luisita, introduced herself as Mrs. Nenita Camacho.

On the other hand petitioner claims it was the other way around — that it was respondent Luisita who had called up their
residence many times, also looking for Aurelio to urge him to file an application for American citizenship.

On May 28, 1988, Aurelio died. Petitioner, using her Loyola Life Plan and Aurelio's account in the PCI Bank, took care of the
funeral arrangements. Respondent Luisita was then in the United States with respondent Chito, having gone there, according to
her, at the instance of Aurelio in order to look for a house in San Francisco so that Aurelio could follow and rejoin them. Upon
learning of the death of Aurelio she and her son Chito came home on May 30, 1988. She had the remains of Aurelio transferred
from the Loyola Memorial Chapels, first to the St. Ignatius Church and later to the Arlington Memorial Chapels. Luisita paid for
the funeral services.

Respondent Luisita was granted dealt benefits by the Armed Forces of the Philippines as the surviving spouse of Aurelio. Soon
she also claimed ownership of the house and lot on Scout Delgado Street in which Nenita had been living. The two met at a
barangay conciliation meeting but efforts to settle their dispute failed.

On September 7, 1988, Luisita and her son Chito brought this case in the Regional Trial Court of Quezon City, seeking the
annullment of the sale of the property to petitioner and the payment to them of damages. Luisita alleged that the deed of sale
was a forgery and that in any event it was executed in fraud of her as the legitimate wife of Aurelio.

In answer petitioner claimed that she and the late Aurelio had purchased the property in question using their joint funds which
they had accumulated after living together for fourteen years, that the sale of the property by the late Aurelio to her was with
respondent Luisita's consent; and that she was a purchaser in good faith.
On August 29, 1989, the trial court rendered a decision upholding the sale of the property to petitioner and dismissing the
complaint of Luisita. It found the deed of sale in favor of petitioner to be genuine and respondents Luisita and Chito to be in
estoppel in not claiming the property until 1988 despite knowledge of the sale by the late Aurelio who had represented himself to
be single. Respondents moved for a reconsideration but the trial court denied their motion.

On appeal the respondents prevailed. On June 4, 1993, the Court of Appeals reversed the decision of the trial court and declared
respondents to be the owners of the house and lot in dispute. Although Luisita had admitted that as early as 1985 she knew that
Nenita had been staying in the premises, the appellate court held that respondents' action was not barred by laches because
Luisita allegedly did not know that Nenita had obtained title to the property. On the merit, the Court of Appeals ruled that in the
absence of proof to the contrary, Aurelio's first wife must be presumed to have been absent for seven years without Aurelio
having news of her being alive when Aurelio contracted a second marriage. On this premise, it held (1) that the property in
dispute belonged to the conjugal partnership of Aurelio and Luisita and (2) that the sale of the property to Nenita was void for the
same reason that donations between persons who are guilty of concubinage or adultery are declared void under
Art. 739 of the Civil Code.

Hence this petition for review of the decision of the Court of Appeals. Petitioner claims that

I THE COURT ERRED IN PRESUMING THE VALIDITY OF THE MARRIAGE BETWEEN AURELIO AND
LUISITA [RESPONDENT HEREIN];

II THE COURT ERRED IN APPLYING ARTICLE 739 OF THE NCC AND DECLARING INVALID THE
DEED OF SALE BETWEEN AURELIO AND NENITA [PETITIONER HEREIN];

III THE COURT ERRED IN RULING THAT THE SUBJECT PROPERTY FORMS PART OF THE
CONJUGAL PROPERTIES OF AURELIO AND LUISITA.

IV THE COURT ERRED IN NOT FINDING THAT PETITIONER IS NOT (sic) A PURCHASER IN GOOD
FAITH AND LAWFUL OWNER OF SUBJECT PROPERTY.

We find the petition to be meritorious.

The resolution of this case hinges on the validity of Aurelio's marriage to respondent Luisita. If that marriage was valid then the
property was property of their conjugal partnership and Luisita is the proper party to question the validity of the sale to Nenita.
Otherwise, if the marriage is not valid, Luisita can not bring this suit.

On the question of validity of Luisita's marriage to Aurelio, the Court of Appeals ruled:

There is no dispute on the fact of appellant Luisita's marriage in 1962 to Aurelio. What is in question is the
validity of that marriage considering Aurelio's purported previous marriage to Consejo Velasco. The
appellee had attacked the validity of appellant's marriage in the trial below, on account of the previous
marriage of Aurelio to Consejo Velasco, presenting evidence to that effect (Exhs. 43 and 44) to bolster
her claim. Appellee likewise proved that Consejo Velasco although then a resident of Australia, is still
alive.

The burden of proof on the legality of appellant's marriage with Aurelio must rest on the appellee as the
party who stands to benefit from a declaration of its invalidity. But appellee failed to prove that such
second marriage (appellant's) was not valid because it was contracted at a time and on the assumption
that the first spouse had been absent for seven years without the spouse present having news of the
absentee being alive.
 This Court finds that the presumption of the validity of the marriage between Aurelio and Luisita has not
been successfully assailed by appellee.

The Court of Appeals thus presumed the validity of Aurelio's second marriage from the failure of petitioner to prove that at the
time of such marriage Aurelio's first wife, Consejo, had not been absent for at least seven years and that Aurelio did not have
news that his first wife was still alive.

Petitioner had shown that on February 6, 1962, when Aurelio married Luisita, Aurelio's previous marriage to Consejo Velasco
was still subsisting and, therefore, his second marriage was bigamous. It was the burden of herein respondents to prove that, at
the time of his second marriage to respondent Luisita, Aurelio's first wife, Consejo Velasco, had been absent for at least seven
years and that Aurelio had no news that she was alive. To assume these facts because petitioner has not disproved them would
be to stand the principle on its head.

Thus, Art. 83 of the Civil Code provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and void from its performance,
unless:

(1) the first marriage was annulled or dissolved; or

(2) the first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally considered as dead and believed to be so by the
spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead
according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until
declared null and void by a competent court.

As this Court has already explained, the general rule is that stated in the first sentence of this provision: "Any marriage
subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first
spouse shall be illegal and void from its performance." The exceptions are those stated in paragraphs 1 and 2. The burden is on
the party invoking any of the exceptions. 4

Paragraph 2 mentions three cases when the subsequent marriage will not be considered void: (1) when the absent spouse has
not been heard from for seven consecutive years and the present spouse has no news that he/she is alive; (2) when, although
he/she has been absent for less than seven years, the absent spouse is generally considered to be dead and believed to be by
the spouse present; and (3) when he/she is presumed to be dead after four years from the occurrence of any of the events
enumerated in art. 3915 of the Civil Code.

In the case at bar, the burden of proof was on respondents to show that Luisita and Aurelio's marriage falls under any of these
exceptions in order to be considered valid. They failed to discharge this burden. Instead the contrary appears.

It has been held that the first exception refers to the subsequent marriage of the abandoned spouse and not the remarriage of
the deserting spouse, after the period of seven years had lapsed.6 This exception cannot be invoked in this case in order to
sustain the validity of Aurelio's marriage to Luisita because apparently it was Aurelio who had left his first wife. At the time of his
second marriage to Luisita, he and Luisita had already been living together as husband and wife for five years. In fact the couple
begot a child, in 1961, even before their marriage in 1962.

What applies in this case, therefore, is the general rule, i.e., since Aurelio had a valid, subsisting marriage to Consejo Velaso, his
subsequent marriage to respondent Luisita was void for being bigamous.
Consequently, there is no basis for holding that the property in question was property of the conjugal partnership of Luisita and
the late Aurelio because there was no such partnership in the first place.

The Court of Appeals held that the sale of the property to Nenita is void on the principle embodied in Art. 739(1) of the Civil Code
which declares donations made between persons who are guilty of adultery or concubinage at the time of the donation to be void.
In the first place, an action for declaration of the nullity of such donations can only be brought by the innocent spouse, perhaps in
this case by the first wife, but certainly not by Luisita whose marriage to Aurelio is itself void. The last paragraph of Art. 739
clearly provides:

In the case referred to in No. 1, the action for declaration of nullify may be brought by the spouse of the
donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the
same action.

In the second place, until otherwise shown in an appropriate action, the sale to petitioner must be presumed. Petitioner's
ownership is evidenced by a deed of absolute sale7 executed with all the solemnity of a public document and by Transfer
Certificate of Title No. 326681 issued in due course in her name.8 Petitioner is in possession of the property. It was error for the
Court of Appeals to annul petitioner's title at the instance of one whose marriage to the seller is void.

Indeed, the property in question was acquired by Aurelio during a long period of cohabitation with petitioner which lasted for
twenty years (1968-1988). While petitioner knew respondent Chito to be Aurelio's son way back in 1976, there is nothing to show
that she knew Aurelio to be married to Luisita. To the contrary, Aurelio represented himself to be single. As far as petitioner was
concerned, Chito could have been Aurelio's child by a woman not his wife. There was, therefore, no basis for the Court of
Appeals' ruling that Nenita was not a buyer in good faith of the property because she ought to have known that Aurelio was
married to Luisita.

WHEREFORE, the decision appealed from is REVERSED and another one is entered, DISMISSING the complaint against
petitioner and DECLARING the deed of sale executed in her favor and Transfer Certificate of Title
No. 326681 of the Register of Deeds of Quezon City issued in her name to be VALID.

SO ORDERED.

Narvasa, C.J., Regalado and Puno, JJ., concur.

#Footnotes

1 Per Cezar D. Francisco, J., and Pedro A. Ramirez and Corona Ibay-Somera, JJ., concurring; Rollo, pp.
26-43.

2 Rollo, p. 42.

3 Rollo, p. 44.

4 Gomez v. Lipana, 33 SCRA 615 (1970).

5 Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:
 (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not
been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been
known for four years.

6 Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957, cited in 1A Tolentino, CIVIL CODE OF THE
PHILIPPINES 274(5th ed., 1985).

7 Exh. 2.

8 Exh. 3.

The Lawphil Project - Arellano Law Foundation

THIRD DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 165545

Petitioner,
Present:

QUISUMBING, Chairperson,*
-versus- CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

TERESITA JARQUE VDA. DE

BAILON, Promulgated:
Respondent.
March 24, 2006
x----------------------------------------------x

DECISION

CARPIO MORALES, J.:

 The Court of Appeals Decision[1] dated June 23, 2004[2] and Resolution dated
September 28, 2004[3] reversing the Resolution dated April 2, 2003[4] and Order
dated June 4, 2003[5] of the Social Security Commission (SSC) in SSC Case No. 4-
15149-01 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice)
contracted marriage in Barcelona, Sorsogon.[6]

More than 15 years later or on October 9, 1970, Bailon filed before the then
Court of First Instance (CFI) of Sorsogon a petition[7] to declare Alice presumptively
dead.

By Order of December 10, 1970,[8] the CFI granted the petition, disposing as
follows:

WHEREFORE, there being no opposition filed against the petition

notwithstanding the publication of the Notice of Hearing in a newspaper of general
circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents
and purposes, except for those of succession, presumptively dead.

SO ORDERED.[9] (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or
on August 8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in
Casiguran, Sorsogon.[10]

On January 30, 1998, Bailon, who was a member of the Social Security
System (SSS) since 1960 and a retiree pensioner thereof effective July 1994, died.[11]

Respondent thereupon filed a claim for funeral benefits, and was

granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for death

benefits[13] which was also granted by the SSS on April 6, 1998.[14]
 Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one
Elisa Jayona (Elisa) contested before the SSS the release to respondent of the death
and funeral benefits. She claimed that Bailon contracted three marriages in his
lifetime, the first with Alice, the second with her mother Elisa, and the third with
respondent, all of whom are still alive; she, together with her siblings, paid for
Bailons medical and funeral expenses; and all the documents submitted by
respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma)
submitted an Affidavit dated February 13, 1999[15] averring that they are two of nine
children of Bailon and Elisa who cohabited as husband and wife as early as
1958; and they were reserving their right to file the necessary court action to contest
the marriage between Bailon and respondent as they personally know that Alice is
still very much alive.[16]

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be

the brother and guardian of Aliz P. Diaz, filed before the SSS a claim for death
benefits accruing from Bailons death,[17] he further attesting in a sworn
statement[18] that it was Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children[19] subsequently filed claims for death benefits
as Bailons beneficiaries before the SSS.[20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga
City recommended the cancellation of payment of death pension benefits to
respondent and the issuance of an order for the refund of the amount paid to her from
February 1998 to May 1999 representing such benefits; the denial of the claim of
Alice on the ground that she was not dependent upon Bailon for support during his
lifetime; and the payment of the balance of the five-year guaranteed pension
to Bailons beneficiaries according to the order of preference provided under the law,
after the amount erroneously paid to respondent has been collected. The pertinent
portions of the Memorandum read:
 1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.

xxxx

x x x the Order of the court in the Petition to Declare Alice Diaz

Presumptively Dead, did not become final. The presence of Aliz [sic] Diaz, is
contrary proof that rendered it invalid.
xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He,
being in bad faith, and is the deserting spouse, his remarriage is void, being
bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse and
who remarried, thus his marriage to Teresita Jarque, for the second time was void
as it was bigamous. To require affidavit of reappearance to terminate the second
marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first
wife, and a voidable marriage [sic], to speak of.[21](Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16,

[22]
2000, advised respondent that as Cecilia and Norma were the ones who defrayed
Bailons funeral expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999,[23] the SSS advised respondent of

the cancellation of her monthly pension for death benefits in view of the opinion
rendered by its legal department that her marriage with Bailon was void as it was
contracted while the latters marriage with Alice was still subsisting; and the
December 10, 1970 CFI Order declaring Alice presumptively dead did not become
final, her presence being contrary proof against the validity of the order. It thus
requested respondent to return the amount of P24,000 representing the total amount
of monthly pension she had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death

benefits by letter to the SSS dated October 12, 1999.[24] In a subsequent letter dated
November 27, 1999[25] to the SSC, she reiterated her request for the release of her
monthly pension, asserting that her marriage with Bailon was not declared before
any court of justice as bigamous or unlawful, hence, it remained valid and subsisting
for all legal intents and purposes as in fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21,

[26]
2000, maintained the denial of her claim for and the discontinuance of payment
of monthly pension. It advised her, however, that she was not deprived of her right
to file a petition with the SSC.

Respondent thus filed a petition[27] against the SSS before the SSC for the
restoration to her of her entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under
protest, the amount of P12,000 representing the funeral benefits she received, she
alleging that Norma and her siblings forcibly and coercively prevented her from
spending any amount during Bailons wake.[28]

After the SSS filed its Answer[29] to respondents petition, and the parties filed
their respective Position Papers, one Alicia P. Diaz filed an Affidavit [30] dated
August 14, 2002 with the SSS Naga Branch attesting that she is the widow of Bailon;
she had only recently come to know of the petition filed by Bailon to declare her
presumptively dead; it is not true that she disappeared as Bailon could have easily
located her, she having stayed at her parents residence in Barcelona, Sorsogon after
she found out that Bailon was having an extramarital affair; and Bailon used to visit
her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent
to Bailon was void and, therefore, she was just a common-law-wife. Accordingly it
disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner

Teresita Jarque-Bailon is not the legitimate spouse and primary beneficiary of SSS
member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the

amount of P24,000.00 representing the death benefit she received therefrom for the
period February 1998 until May 1999 as well as P12,000.00 representing the
funeral benefit.
 The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the
appropriate death benefit arising from the demise of SSS member Clemente Bailon
in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law, as
amended, and its prevailing rules and regulations and to inform this Commission
of its compliance herewith.

SO ORDERED.[31] (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission

comes to the inevitable conclusion that the petitioner is not the legitimate wife of
the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to the

declaration of the then CFI of Sorsogon (10th Judicial District), the first wife never
disappeared as the deceased member represented in bad faith. This Commission
accords credence to the findings of the SSS contained in its Memorandum
dated August 9, 1999,[32] revealing that Alice (a.k.a. Aliz) Diaz never left
Barcelona, Sorsogon, after her separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the deceased
member using artifice and by exerting fraud upon the unsuspecting court of law,
x x x it never had the effect of giving the deceased member the right to marry
anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that
the first marriage on April 25, 1955 to Alice Diaz was not previously annulled,
invalidated or otherwise dissolved during the lifetime of the parties
thereto. x x x as determined through the investigation conducted by the SSS,
Clemente Bailon was the abandoning spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the petitioner

was just a common-law wife of the deceased member, it necessarily follows that
she is not entitled as a primary beneficiary, to the latters death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate
surviving spouse and primary beneficiary of Clemente Bailon, it behooves her
to refund the total amount of death benefit she received from the SSS for the period
from February 1998 until May 1999 pursuant to the principle of solutio
indebiti x x x
 Likewise, it appearing that she was not the one who actually defrayed the
cost of the wake and burial of Clemente Bailon, she must return the amount
of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.[33] (Underscoring supplied)

Respondents Motion for Reconsideration[34] having been denied by Order

of June 4, 2003, she filed a petition for review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2,
2003 Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to
pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether

or not the decision of the then CFI, now RTC, declaring Alice Diaz presumptively
dead has attained finality but, more importantly, whether or not the respondents
SSS and Commission can validly re-evaluate the findings of the RTC, and on its
own, declare the latters decision to be bereft of any basis.On similar import, can
respondents SSS and Commission validly declare the first marriage subsisting and
the second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person presumptively dead

never attains finality as the finding that the person is unheard of in seven years is
merely a presumption juris tantum, the second marriage contracted by a person
with an absent spouse endures until annulled. It is only the competent court that
can nullify the second marriage pursuant to Article 87 of the Civil Code and upon
the reappearance of the missing spouse, which action for annulment may be
filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS
may validly declare the second marriage null and void on the basis alone of its own
investigation and declare that the decision of the RTC declaring one to be
presumptively dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to review the
decision of the regular courts under the pretext of determining the actual and
lawful beneficiaries of its members. Notwithstanding its opinion as to the
soundness of the findings of the RTC, it should extend due credence to the decision
of the RTC absent of [sic] any judicial pronouncement to the contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the

authority to declare the decision of the RTC to be without basis, the procedure it
followed was offensive to the principle of fair play and thus its findings are of
 doubtful quality considering that petitioner Teresita was not given ample
opportunity to present evidence for and her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of

Reappearance with the Civil Registry is no longer practical under the
premises. Indeed, there is no more first marriage to restore as the marital bond
between Alice Diaz and Clemente Bailon was already terminated upon the latters
death. Neither is there a second marriage to terminate because the second marriage
was likewise dissolved by the death of Clemente Bailon.

However, it is not correct to conclude that simply because the filing of the
Affidavit of Reappearance with the Civil Registry where parties to the subsequent
marriage reside is already inutile, the respondent SSS has now the authority to
review the decision of the RTC and consequently declare the second marriage null
and void.[36] (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for
Reconsideration[37] which were both denied for lack of merit.

Hence, the SSS present petition for review on certiorari[38] anchored on the
following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS

CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION.[39]

The SSS faults the CA for failing to give due consideration to the findings of
facts of the SSC on the prior and subsisting marriage between Bailon and Alice; in
disregarding the authority of the SSC to determine to whom, between Alice and
respondent, the death benefits should be awarded pursuant to Section 5 [40] of the
Social Security Law; and in declaring that the SSS did not give respondent due
process or ample opportunity to present evidence in her behalf.

The SSS submits that the observations and findings relative to the CFI
proceedings are of no moment to the present controversy, as the same may be
considered only as obiter dicta in view of the SSCs finding of the existence of a prior
and subsisting marriage between Bailon and Alice by virtue of which Alice has a
better right to the death benefits.[41]

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage,
benefits and contributions, there is no doubt. In so exercising such power, however,
it cannot review, much less reverse, decisions rendered by courts of law as it did in
the case at bar when it declared that the December 10, 1970 CFI Order was obtained
through fraud and subsequently disregarded the same, making its own findings with
respect to the validity of Bailon and Alices marriage on the one hand and the
invalidity of Bailon and respondents marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as
an appellate court. The law does not give the SSC unfettered discretion to trifle with
orders of regular courts in the exercise of its authority to determine the beneficiaries
of the SSS.

The two marriages involved herein having been solemnized prior to the
effectivity on August 3, 1988 of the Family Code, the applicable law to determine
their validity is the Civil Code which was the law in effect at the time of their
celebration.[42]

Article 83 of the Civil Code[43] provides:

 Art. 83. Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such first
spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the absentee
being alive, or if the absentee, though he has been absent for less than seven years,
is generally considered as dead and believed to be so by the spouse present at the
time of contracting such subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so contracted shall be valid in
any of the three cases until declared null and void by a competent court. (Emphasis
and underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage

contracted during the lifetime of the first spouse is illegal and void ab initio unless
the prior marriage is first annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage under any of these
exceptional cases is deemed valid until declared null and void by a competent
court. It follows that the onus probandi in these cases rests on the party assailing
the second marriage.[44]

In the case at bar, as found by the CFI, Alice had been absent for 15
consecutive years[45] when Bailon sought the declaration of her presumptive death,
which judicial declaration was not even a requirement then for purposes of
remarriage.[46]

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption

arises in favor of the validity of the second marriage, and the burden is on the party
attacking the validity of the second marriage to prove that the first marriage had not
been dissolved; it is not enough to prove the first marriage, for it must also be shown
that it had not ended when the second marriage was contracted. The presumption in
favor of the innocence of the defendant from crime or wrong and of the legality of
 his second marriage, will prevail over the presumption of the continuance of life of
the first spouse or of the continuance of the marital relation with such first
spouse.[47] (Underscoring supplied)

Under the Civil Code, a subsequent marriage being voidable,[48] it is

terminated by final judgment of annulment in a case instituted by the absent spouse
who reappears or by either of the spouses in the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent

marriage is necessary. Thus Article 42 thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment annulling the previous marriage or
declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be

recorded in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested person, with due notice to the spouses
of the subsequent marriage and without prejudice to the fact of reappearance
being judicially determined in case such fact is disputed. (Emphasis and
underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the

above-quoted provision of the Family Code does not preclude the filing of an action
in court to prove the reappearance of the absentee and obtain a declaration of
dissolution or termination of the subsequent marriage.[49]

If the absentee reappears, but no step is taken to terminate the subsequent

marriage, either by affidavit or by court action, such absentees mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate
such marriage.[50] Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of
the spouses physical reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as
provided by law.[51]

If the subsequent marriage is not terminated by registration of an affidavit of

reappearance or by judicial declaration but by death of either spouse as in the case
at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of

either spouse, the effects of dissolution of valid marriages shall arise. The good or
bad faith of either spouse can no longer be raised, because, as in annullable
or voidable marriages, the marriage cannot be questioned except in a direct action
for annulment.[52] (Underscoring supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action
for annulment became extinguished as soon as one of the three persons involved
had died, as provided in Article 87, paragraph 2, of the Code, requiring that the
action for annulment should be brought during the lifetime of any one of the
parties involved. And furthermore, the liquidation of any conjugal partnership that
might have resulted from such voidable marriage must be carried out in the testate
or intestate proceedings of the deceased spouse, as expressly provided in Section 2
of the Revised Rule 73, and not in the annulment proceeding.[54] (Emphasis and
underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally

except in a direct proceeding. Consequently, such marriages can be assailed only
during the lifetime of the parties and not after the death of either, in which case the
parties and their offspring will be left as if the marriage had been perfectly
valid.[55] Upon the death of either, the marriage cannot be impeached, and is made
good ab initio.[56]
 In the case at bar, as no step was taken to nullify, in accordance with law,
Bailons and respondents marriage prior to the formers death in 1998, respondent is
rightfully the dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised

has been rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE)

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO
Associate Justice
 Acting Chairperson

DANTE O. TINGA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Acting
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

*
On Official Leave.
[1]
Penned by Justice Remedios A. Salazar-Fernando and concurred in by Justices Mariano C. del Castillo
and Edgardo F. Sundiam.
[2]
CA rollo, pp. 147-157.
[3]
Id. at 195.
[4]
Id. at 47-55.
[5]
Id. at 56.
[6]
SSC records, p. 112.
[7]
Id. at 65-67.
[8]
CA rollo, pp. 6-9.
[9]
Id. at 8-9.
[10]
SSC records, p. 127.
[11]
CA rollo, p. 11.
[12]
SSC records, p. 48.
[13]
Ibid.
[14]
Id. at 96-97.
[15]
Id. at 55.
[16]
Ibid.
[17]
Id. at 109.
[18]
Id. at 110.
[19]
Herminia Bailon-Argente, Cecilia Bailon-Yap, Norma Bailon-Chavez, Roselyn Bailon-Ladesma, Susan J.
Bailon, Charito Bailon-Soriano, and Clemente J. Bailon, Jr.
[20]
SSC records, pp. 113-120.
[21]
Id. at 135-136.
[22]
Id. at 137.
[23]
Id. at 124.
[24]
Id. at 125.
[25]
Id. at 129-130.
[26]
Id. at 134.
[27]
CA rollo, pp. 12-14.
[28]
SSC records, p. 149.
[29]
CA rollo, pp. 15-19.
[30]
Id. at 144.
[31]
Rollo, pp. 56-57.
[32]
Pertinent portions of the Memorandum provide:
xxxx
1. Based on the interview conducted by our Account Officer, Mr. Rolando G. Gomez to [sic] the
relatives of Alice (not Aliz) Diaz namely: Rogelio Del Prado and Emelita Diaz at Poblacion Sur, Barcelona,
Sorsogon they alleged that subject deceased member and Alice live [sic] as husband and wife for only a
year. Alice never left Barcelona, Sorsogon since their separation and is not dependent for support nor received
support from the deceased member. x x x
[33]
Rollo, pp. 53-56.
[34]
SSC records, pp. 172-174.
[35]
CA rollo, pp. 2-5.
[36]
Rollo, pp. 41-44.
[37]
CA rollo, pp. 161-170.
[38]
Rollo, pp. 10-34.
[39]
Id. at 22.
[40]
SEC. 5. Settlement of Disputes. (a) Any dispute arising under this Act with respect to coverage, benefits,
contributions and penalties thereon or any other matter related thereto, shall be cognizable by the Commission,
and any case filed with respect thereto shall be heard by the Commission, or any of its members, or by hearing
officers duly authorized by the Commission and decided within the mandatory period of twenty (20) days after
the submission of the evidence. The filing, determination and settlement of disputes shall be governed by the
rules and regulations promulgated by the Commission.
xxxx
[41]
Rollo, p. 28.
[42]
Article 256 of the Family Code itself limited its retroactive governance only to cases where it thereby would not
prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.
[43]
Article 41 of the Family Code now provides:
 Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of the absent spouse.
[44]
Armas v. Calisterio, 386 Phil. 402, 409 (2000).
[45]
CA rollo, p. 8.
[46]
Jones v. Hortiguela, 64 Phil. 179, 183 (1937).
[47]
I A. Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF
THE PHILIPPINES 282 (1999 ed.). (Citations omitted)
[48]
Art. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
xxxx
(2) In a subsequent marriage under Article 83, Number 2, that the former husband or wife believed to be dead
was in fact living and the marriage with such former husband or wife was then in force;
x x x x (Underscoring supplied)

Art. 87. The action for annulment of marriage must be commenced by the parties and within the periods
as follows:
xxxx
(2) For causes mentioned in number 2 of Article 85, by the spouse who has been absent, during his or
her lifetime; or by either spouse of the subsequent marriage during the lifetime of the other;
xxxx
[49]
Supra note 47, at 284.
[50]
Ibid.
[51]
Id. at 285-286.
[52]
Supra note 47, at 287.
[53]
150 Phil. 204 (1972).
[54]
Id. at 213.
[55]
Nial v. Bayadog, 384 Phil. 661, 673 (2000). (Citations omitted)
[56]
Id. at 674.

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION
 REPUBLIC OF THE PHILIPPINES, G. R. No. 187512
Petitioner,
Present:

CARPIO, J., Chairperson,

- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

YOLANDA CADACIO GRANADA,

Respondent. Promulgated:

June 13, 2012

x--------------------------------------------------x

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January
2009[1] and 3 April 2009[2] issued by the Court of Appeals (CA), which affirmed the
grant by the Regional Trial Court (RTC) of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus

Granada (Cyrus) at Sumida Electric Philippines, an electronics
company in Paranaque where both were then working. The two eventually got
married at the Manila City Hall on 3 March 1993. Their marriage resulted in the
birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down,

Cyrus went to Taiwan to seek employment. Yolanda claimed that from that time,
she had not received any communication from her husband, notwithstanding efforts
to locate him. Her brother testified that he had asked the relatives of Cyrus regarding
the latters whereabouts, to no avail.
 After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared
presumptively dead. The Petition was raffled to Presiding Judge Avelino Demetria
of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as

presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by the

Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this
Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to locate
Cyrus and thus failed to prove her well-founded belief that he was already dead.
However, in an Order dated 29 June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably
under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss
on the ground that the CA had no jurisdiction over the appeal. She argued that her
Petition for Declaration of Presumptive Death, based on Article 41 of the Family
Code, was a summary judicial proceeding,
in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas

Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v.
Bermudez-Lorino,[3] the CA ruled that a petition for declaration of presumptive death
under Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon
is immediately final and executory upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by
the CA in a Resolution dated 3 April 2009.[4]

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the Petition

on the ground that the Decision of the RTC in a summary proceeding
 for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to
ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs

grant of the Petition for Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that respondent presented

Our Ruling

1. On whether the CA seriously erred in

dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding
for the declaration of presumptive death is
immediately final and executory upon notice to
the parties and, hence, is not subject to ordinary
appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the

Petition assailing the RTCs grant of the Petition for Declaration of Presumptive
Death of the absent spouse under Article 41 of the Family Code. Citing Republic v.
Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary judicial proceeding
under the Family Code. Hence, the RTC Decision therein is immediately final and
executory upon notice to the parties, by express provision of Article 247 of the same
Code. The decision is therefore not subject to ordinary appeal, and the attempt to
question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

 Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (Underscoring
supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse

for the purpose of contracting a subsequent marriage under Article 41 of the Family
Code is a summary proceeding as provided for under the Family Code.

Further, Title XI of the Family Code is entitled Summary Judicial Proceedings

in the Family Law. Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title
shall apply in all cases provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an expeditious manner without regard
to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
as they are applicable.
 Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that
since a petition for declaration of presumptive death is a summary proceeding, the
judgment of the court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs

affirmation of the RTCs grant of respondents Petition for Declaration of Presumptive
Death of her absent spouse. The Court therein held that it was an error for the
Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to
wit:

In Summary Judicial Proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247, Family Code,
supra, are immediately final and executory.
xxx xxx xxx
But, if only to set the records straight and for the future guidance of the
bench and the bar, let it be stated that the RTCs decision dated November 7, 2001,
was immediately final and executory upon notice to the parties. It was erroneous
for the OSG to file a notice of appeal, and for the RTC to give due course thereto.
The Court of Appeals acquired no jurisdiction over the case, and should have
dismissed the appeal outright on that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the result
reached by the Court in Republic v. Bermudez-Lorino, additionally opined that what
the OSG should have filed was a petition for certiorari under Rule 65, not a petition
for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been
superseded by the subsequent Decision of the Court in Republic v. Jomoc,[7] issued
a few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of

Presumptive Death of her absent husband for the purpose of remarriage. Petitioner
Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court
disapproved the Notice of Appeal on the ground that, under
the Rules of Court,[8] a record on appeal is required to be filed when appealing
special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA,
this Court clarified that while an action for declaration of death or absence under
Rule 72, Section 1(m), expressly falls under the category of special proceedings, a
petition for declaration of presumptive death under Article 41 of the Family Code is
a summary proceeding, as provided for by Article 238 of the same Code. Since its
purpose was to enable her to contract a subsequent valid marriage, petitioners action
was a summary proceeding based on Article 41 of the Family Code, rather than a
special proceeding under Rule 72 of the Rules of Court. Considering that this action
was not a special proceeding, petitioner was not required to file a record on appeal
when it appealed the RTC Decision to the CA.

We do not agree with the Republics argument that Republic v.

Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the
CA, the Supreme Court in Jomoc did not expound on the characteristics of a
summary proceeding under the Family Code. In contrast, the Court in Bermudez-
Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a
vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended
to set the records straight and for the future guidance of the bench and the bar.

At any rate, four years after Jomoc, this Court settled the rule regarding appeal
of judgments rendered in summary proceedings under the Family Code when it ruled
in Republic v. Tango:[9]

This case presents an opportunity for us to settle the rule on appeal of

judgments rendered in summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural

rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the
rules in chapters two and three of the same title. It states:
 ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis
supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and
executory.

By express provision of law, the judgment of the court in a summary

proceeding shall be immediately final and executory. As a matter of course, it
follows that no appeal can be had of the trial court's judgment in a summary
proceeding for the declaration of presumptive death of an absent spouse under
Article 41 of the Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of discretion amounting to
lack of jurisdiction. Such petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's
original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From the decision of the Court of
Appeals, the losing party may then file a petition for review on certiorari under Rule
45 of the Rules of Court with the Supreme Court. This is because the errors which
the court may commit in the exercise of jurisdiction are merely errors of judgment
which are the proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary
proceeding for the declaration of presumptive death may file a petition for certiorari
with the CA on the ground that, in rendering judgment thereon, the trial court
committed grave abuse of discretion amounting to lack of jurisdiction. From the
decision of the CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republics
Notice of Appeal on the ground that the RTC judgment on the Petition for
Declaration of Presumptive Death of respondents spouse was immediately final and
executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in

affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that
respondent had presented

Petitioner also assails the RTCs grant of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent on the ground that she had
not adduced the evidence required to establish a well-founded belief that her absent
spouse was already dead, as expressly required by Article 41 of the Family Code.
Petitioner cites Republic v. Nolasco,[10] United States v. Biasbas[11] and Republic v.
Court of Appeals and Alegro[12] as authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of

the RTCs grant of respondents Petition for Declaration of Presumptive Death of his
absent spouse, a British subject who left their home in the Philippines soon after
giving birth to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the ground that
respondent was not able to establish
his well-founded belief that the absentee is already dead, as required by Article 41
of the Family Code. In ruling thereon, this Court recognized that this provision
imposes more stringent requirements than does Article 83 of the Civil Code.[13] The
Civil Code provision merely requires either that there be no news that the absentee
is still alive; or that the absentee is generally considered to be dead and is believed
to be so by the spouse present, or is presumed dead under Articles 390 and 391 of
the Civil Code. In comparison, the Family Code provision prescribes a well-founded
belief that the absentee is already dead before a petition for declaration of
presumptive death can be granted. As noted by the Court in that case, the four
requisites for the declaration of presumptive death under the Family Code are as
follows:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
 In evaluating whether the present spouse has been able to prove the existence
of a well-founded belief that the absent spouse is already dead, the Court
in Nolasco cited United States v. Biasbas,[14] which it found to be instructive as to
the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due
diligence in ascertaining the whereabouts of his first wife, considering his admission
that that he only had a suspicion that she was dead, and that the only basis of that
suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic

sought the reversal of the CA ruling affirming the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse on the ground that the
respondent therein had not been able to prove a well-founded belief that his spouse
was already dead. The Court reversed the CA, granted the Petition, and provided the
following criteria for determining the existence of a well-founded belief under
Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been
absent and that he has a well-founded belief that the absent spouse is already dead
before the present spouse may contract a subsequent marriage. The law does not
define what is meant by a well-grounded belief. Cuello Callon writes that es
menester que su creencia sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt

act. It may be proved by direct evidence or circumstantial evidence which may tend,
even in a slight degree, to elucidate the inquiry or assist to a determination probably
founded in truth. Any fact or circumstance relating to the character, habits,
conditions, attachments, prosperity and objects of life which usually control the
conduct of men, and are the motives of their actions, was, so far as it tends to explain
or characterize their disappearance or throw light on their intentions, competence
[sic] evidence on the ultimate question of his death.
 The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
and whether the absent spouse is still alive or is already dead. Whether or not the
spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that
respondent Yolanda did not initiate a diligent search to locate her absent husband.
While her brother Diosdado Cadacio testified to having inquired about the
whereabouts of Cyrus from the latters relatives, these relatives were not presented
to corroborate Diosdados testimony. In short, respondent was allegedly not diligent
in her search for her husband. Petitioner argues that if she were, she would have
sought information from the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained to

deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her well-
founded belief that her absent spouse was already dead prior to her filing of the
Petition to declare him presumptively dead is already final and can no longer be
modified or reversed. Indeed, [n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and unalterable. The
same may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact or law.[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court

of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165
are AFFIRMED.

SO ORDERED.
 MARIA LOURDES P. A. SERENO
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The Judiciary Act of 1948, as amended)

[1]
Rollo, pp. 30-33. The Court of Appeals Fifth Division Decision in CA-G.R. CV No. 90165 was penned by Justice
Remedios A. Salazar-Fernando and concurred in by Justices Jose C. Reyes, Jr. and Normandie B. Pizarro.
[2]
Rollo, pp. 35-36.
[3]
489 Phil. 761 (2005).
[4]
Rollo, pp. 35-36.
[5]
Supra note 3.
[6]
Supra note 3.
[7]
497 Phil. 528 (2005).
[8]
The case cited Rule 41, Sec. 2(a), which reads:
SEC. 2. Modes of appeal.
(a) Ordinary appeal.The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these Rules so
require. In such cases, the record -on appeal shall be filed and served in like manner. (Underscoring
supplied.)
[9]
G.R. No. 161062, 31 July 2009, 594 SCRA 560.
[10]
G.R. No. 94053, 17 March 1993, 220 SCRA 20.
[11]
25 Phil. 71 (1913).
[12]
513 Phil. 391 (2005).
[13]
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without
the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for
less than seven years, is generally considered as dead and believed to be so by the spouse present at the time
of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and
391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a
competent court.
[14]
The case originated from a bigamy suit against defendant Biasbas, whose defense was that he contracted a
second marriage on the good faith belief that his first wife was already dead.
[15]
Chan-Tan v. Tan, G.R. No. 167139, 25 February 2010, 613 SCRA 592.