Estrada v. Escritor (Freedom of Religion)

In the Philippines, the issue of passing a pro-LGBT legislation is very controversial. On the other side of the spectrum is the the conservative churches lobbying against its passage on the strength of freedom of religion, while the increasing number of LGBTs is rallying for the enactment of Anti-SOGIE (sex, sexual orientation, gender identity and gender expression) bill as part of universal human right.

What is the prevailing jurisprudence on freedom of religion in the Philippines anyway? 

The case of Estrada vs. Escritor (A.M. No. P-02-1651, August 4, 2003) is one of the prevailing jurisprudence on the issue of free exercise of religion. 

In this case, complainant Estrada filed an administrative complaint against Respondent Soledad Escritor for gross and immoral conduct. Respondent Escritor is a court stenographer, who is allegedly living with a man not her husband. Accordingly, this act tarnishes the image of the court and she should, thus, be disallowed from continuing her employment with the court.

Escritor admitted the allegations against her, but pleaded that her conduct is in accordance with her religious belief. She testified that her husband already died in 1998. She has been living with Mr. Quilapio for 20 years without the benefit of marriage and that they have a son. However, she explained that 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. As proof, she presented a document denominated as “Declaration of Pledging Faithfulness” executed on July 28, 1991. Accordingly, this practice is supported by Matthew 5:32 which provides that when the spouse commits adultery, the offended spouse can remarry.

Despite her defense, Escritor was held administratively liable and was suspended for 6 months and 1 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.

On appeal, the issue before the Court is whether or not Escritor is guilty of committing gross and immoral conduct for living with a man not her husband.

The Court held that, strictly speaking, Escritor’s conduct is immoral and should necessarily be punished. However, her defense, anchored on religious freedom, presents a very interesting issue to the Court.

Article III, Section 5 of the Philippine Constitution provides that “[n] o 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.”

In light of the factual circumstances surrounding this case, should Escritor be held administratively liable for her conduct?

After a lengthy discussion on the gamut of Free Exercise and Establishment cases in the Philippines and the United States, the Court decided to remand the case to the Office of the Court Administrator for further proceedings. It also ordered the Solicitor General to intervene in the case (a) to examine the sincerity and centrality of respondent’s claimed religious belief and practice; (b) to present evidence on the state’s compelling interest to override respondent’s 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 Court explained that the Philippines adheres to a benevolent neutrality approach in interpreting freedom of religion cases. Accordingly, the constitutional provisions 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 the Constitution, did not intend to erect a high and impregnable wall of separation between the church and state. 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.

Moreover, it also clarified that the compelling state interest test is proper where conduct is involved because the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and short ­term while others delayed and far­ reaching.

Thus, using the compelling state interest test from a benevolent neutrality stance, the Court held that there are two questions that must be answered in deciding the issue in this case:

(a)       Whether respondent’s right to religious freedom has been burdened?

According to the Court, 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.

(b)       Whether respondent is sincere in her religious belief?

The Court found that she is sincere in her belief for the following reasons:

·          She did not secure the Declaration only after entering the judiciary or 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. The Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the union of their members under respondent's circumstances honorable before God and men.

·           The Report and Recommendation of the investigating judge annexed letters of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62­2001 was issued requiring attendance in the flag ceremony.

Nevertheless, the Court clarified that it cannot, as yet, render a definitive decision in this case absent the showing of a compelling state interest, especially since the government was not represented in this case. According to the Court, 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. The government should, thus, be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent’s stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection.