Saturday, December 4, 2010

Church and State

I am glad that one of my readers has expressed his unhappiness about my views on church and state. He has given me a chance to make him happy, or perhaps more unhappy.

In a piece which he entitled “Noted constitutionalist Bernas misses again” he particularly laments that I seem to have failed or chosen not to see the fundamental principle that the “separation of church and state shall be inviolable.” He seems to forget that, although this is a principle that came to us with the American regime, the sentence found in Article II, Section 6 of the 1987 Constitution, only appeared for the first time in the 1973 Constitution. And I have always told my students that this sentence in Article II is a superfluity. It adds nothing to what has been elaborated in other parts of the Constitution even before 1973 and in a long line of Philippine and American jurisprudence.

The phrase, incidentally, appears under the Declaration of Principles. They are just that, principles which guide government in the conduct of affairs. The principle of separation of church and state commands government about what it may not do about churches. It is not a guide for the conduct of private individuals nor of the Church. The rule of conduct for the Church is in Canon Law.

Moreover, I usually avoid the use of the phrase “separation of church and state” and its cousin “wall of separation” because they can lead to exaggerated notions suggesting that there can be no contact between church and state. How can there be no contact when they live in the same world? Hence, I prefer to use the original language of the Constitution which speaks of “non-establishment of religion.”

But even “non-establishment” has been read in varying ways by jurisprudence. At one end, relevant to American federalism but not to the Philippine unitary system, is the view that the clause merely insulates state policy on religion from federal interference. At the other end are formulations of how the government may legislate on matters that touch on religion. One reading says that the non-establishment clause prohibits the state from passing "laws which aid one religion, aid all religions, or prefer one religion over another." Other jurisprudential readings nuance this more carefully to say that (1) the non-establishment clause prohibits only direct support of institutional religion but not benefits incidentally accruing to churches and church agencies through support given to members; (2) both direct and indirect aid to religion are prohibited especially if the support involves preference of one religion over another or preference of religion over irreligion (3) state aid to the secular goals of religious institutions may be given provided it will not involve “excessive entanglement with religion.” In other words, there is no simplistic reading of the non-establishment clause or separation of church and state.

My reader also laments that I support the “amazing unconstitutional act, that a prelate, say, a cardinal, could run for public office.” What is amazing, however, is the contrary view. The Constitution itself says: “No religious test shall be required for the exercise of civil or political rights.” Prohibiting a priest or cardinal from running for office means imposing on them a religious test for the exercise of their political rights. That is a constitutional no-no.

My reader also teaches that there is violation of separation of church and state when “public officials would not decline a Red Mass, or the bishops are unable to restrain themselves from offering it to the politicians.” He would require our public officials to be irreligious and he would curtail the right of bishops to promote religious values.

This brings me to a basic principle that must not be forgotten when reading the Constitution. It is this, that, for the state, the Constitution sets up the structures and powers of government and enumerates some non-inherent powers; but for the individual person it is a guarantee of fundamental rights. The Bill of Rights, where the non-establishment provision is found, is a limitation on the powers of the state but a guarantee of the rights of individuals. In the matter of religion, this is obvious. The Constitution commands the state not to establish any religion (no law shall be passed respecting an establishment of religion) but it guarantees the right of the individual to the free exercise of religious profession and worship. One of the purposes, in fact, of the invention of “non-establishment” is the protection of individuals from oppressive state religions. Non-establishment, in other words, is in service of free exercise. Hence, when there is conflict between the two, jurisprudence favors free exercise. For instance, our Supreme Court has spoken of “benevolent neutrality” in approaching religious conflicts.

My reader also cites the example of revered elders in Constitutional Law – Recto, TaƱada, Carreon, Cruz. There are others too. I am certain that they are for non-establishment and against religious abuses; but I am equally certain that they will defend the free exercise of religion.

6 December 2010

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