Constitutional Law Chapter VII – The Non-establishment of Religion Clause



Section 5.  No law shall be made respecting the 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.

ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for Reconsideration), 408 SCRA 1

Puno, J.

Respondent is the Court interpreter of RTC Branch 253, Las Pinas City. Complainant requested for an investigation  of respondent for living with a man not her husband while she was still legally married and having borne a child within this live-in arrangement. Estrada believes  that Escritor is committing a grossly immoral act which tarnishes the image of the judiciary, thus she should not be allowed to remain employed  therein as it might appear that the court condones her act.

Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago when her husband was still alive but living with another woman. She likewise admitted having a son with Quilapio but denies any liability for alleged grossly immoral conduct because:

  • She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
  • That the conjugal arrangement was in  conformity  with their religious beliefs;
  • That the conjugal arrangement with Quilapio has the approval of her congregation.

Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed.


Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion. The Court recognizes that state interests must be upheld in order that freedoms—including religious freedom—may be enjoyed. IN THE AREA OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM, HOWEVER, MAN STANDS ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE STATE, and so the stateinterest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that the state interest exists, man must be allowed to subscribe to the Infinite.

Escritor was therefore held not administratively liable for grossly immoral conduct.


–                      Any specific system of belief, worship or conduct, often involving a code of ethics and philosophy.

–                      A profession of faith to an active power that binds and elevates man to his Creator.

The existence of a Divine being is not necessarily inherent in religion; the Buddhists espouses a way of life without reference to an omnipotent God.

“Strong fences make good neighbors”. The idea is to delineate the boundaries between two institutions and prevent encroachments by one against the other.

The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely ecclesiastical affairs; the Church is likewise barred from meddling  in purely secular matters.



It simply means “that the State cannot set up a church; nor pass laws which aids one religion; aid all religion, or prefer one religion over another nor 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; that the State cannot openly or secretly participate in the affairs of any religious organization or group and vice versa” (EVERSON VS. BOARD OF EDUCATION, 330 US 1)

This clause seeks to protect:

Voluntarism—must come into existence through the voluntary support of its members;

Insulation from political process—growth through voluntary support of its members will not take place if there is intervention from the State.

There will be no violation of the non-establishment clause if:

1. the statute has a secular legislative purpose;

2. its principal or primary effect is one that neither advances nor inhibits religion; and

3. it does not foster an excessive government entanglement with religion. (LEMON VS. KURTZMAN, 403 US 602)


The government is neutral  and while protecting  all, it prefers none and disparages none. “All” here applies both to the believer and the non-believer. FREEDOM OF RELIGION INCLUDES FREEDOM FROM RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.


“It is unconstitutional for a school to require the students to recite  a prayer composed by the Board of Regents at the starts of the day’s class. “It is no part of the business of government to compose official prayers for any group of the American People.”



It is unconstitutional for a law to require  that at least 10 verses from the Holy Bible  be read daily without comment because the same constitute a religious exercise which violates the non-establishment clause.



A law requiring the Board of Education to lend textbooks free of charge to all students from grades 7-12 of parochial school. This is constitutional since it is not the parochial school which gets the benefits but the parents.


The law authorizing reimbursement of transportation expenses of school children going to and from parochial schools is not violative of the non-establishment clause because it will be the parents who get benefits, not the parochial  school.


a.            Freedom to believe; and

b.            Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories about life and death; worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he believes.

In the second, if the individual externalizes what he believes, his freedom to do so becomes subject to the authority of the State. This is so because religious freedom can be exercised only with due regard to the rights of others. Example: “Go forth and multiply—cannot marry several times just to comply.


Avoiding military duties based on religious grounds is not allowed in the Philippines because of Section 4, Article II—The state is the protector of the people and it is the prime duty  of the people to defend the State and in the fulfillment of this duty, the State may call  all citizens to render military or civil service.


The act of the Illinois Supreme Court denying admission to the bar because of his refusal to take in good faith an oath to support the Constitution of the State of Illinois which requires mandatory service in the military in times of war was reversed by the US Supreme Court stating that this constitutes a violation of the 1st Amendment which guarantees religious freedom.

1.  Religious freedom in relation to impairment of            contracts and the right to join associations,36            SCRA 445

2. Read:

1. Aglipay vs. Ruiz, 64 Phil. 201

2. Garces vs. Estenzo, 104 SCRA 510

3. INK vs. Gironella, 106 SCRA 1

4. American Bible Society vs. City of Manila, 101         Phil. 398

5. Gerona vs. Sec. of Education, 106 Phil. 11

6. Pamil vs. Teleron, November 20, 1978

7. Victoriano vs. Elizalde Rope, 59 SCRA 54

1.            German vs. Barangan, 135 SCRA 514


Grino–Aquino, J.



1. The petitioners are high school and grade schools students enrolled in the different public schools of the Province of Cebu and who belong to the religious group known as the Jehovah’s Witnesses;

2. That they rrefused to take part in the flag ceremony which includes playing by a band or singing the Philippine National Anthem, saluting the Philippine Flag and reciting the patriotic pledge because they considered the flag as an image and they should not worship it except GOD;

3. That because of their refusal to perform the foregoing acts as required by RA 1265 of July 11, 1955 and by Department Order No. 8 dated July 21, 1955 of the DECS making the flag ceremony compulsory in all educational institutions, they were expelled by the respondent school authorities.

Hence this petition.


May the petitioners be expelled for refusing to salute the flag, recite the patriotic pledge or sing the national anthem in order to follow their religious beliefs?


The same issue was raised in Gerona vs. Secretary of Education, 106 Phil. 2 (1959) and Balbuna vs. Secretary of Education, 110 Phil. 150 (1960) where the SC held that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under a system of complete separation of church and state in the government, the flag is utterly devoid of any religious significance.

The law, RA 1265 was likewise incorporated in Executive Order No. 297, September 21, 1988.

Our task is extremely difficult for the 30-year old decision of this Court in GERONA upholding the salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during flag ceremony on pain of being dismissed from one’s job or be expelled in school, 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 (Section 5, Art. III, 1987 Constitution).

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 and his Creator (Chief Justice Fernando’s separate opinion in German vs. Barangan, 135 SCRA 530).

The right to religious profession has a two-fold aspect, vis., freedom to believe and freedom to act on one’s belief. The first is absolute as long as the belief is confined within the realm of the thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according the Former Chief justice Teehankee in his dissenting opinion in German vs. Baranagan) 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 the right and duty to presvent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified since they are not doing anything that could warrant their expulsion since during flag ceremonies, they just quietly stand at attention to show their respect for the rights of others who choose to participate in the solemn proceedings.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we upheld the exemption of the members of the Iglesia ni Kristo from the coverage of the closed-shop agreement between the labor union and the company because it would violate the teaching of their church not to join any labor group.

We hold that a similar exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony out of respect to their religious beliefs, however “bizarre” those beliefs may seem to others.


Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law, University of the Cordilleras

Baguio City


About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on May 13, 2011, in Constitutional Law and tagged . Bookmark the permalink. 1 Comment.

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