Why religious freedom may not work against the RH Law

People like using religious freedom arguments (based on Article III, Section 5 of the Constitution) because it has a nice ring to it: it's catchy and gives a righteous feeling for those who employ it.

Unfortunately, a lot miss the point (including those who should know better) about the nature and scope of religious freedom in relation to constitutional law. In the same way that religious freedom was misused in the Bacolod "Team Buhay/Team Patay" case (considering that it was a case that really should have revolved around election law provisions and the specifications regarding campaign materials), there is always the risk that the religious freedom argument may be wrongly employed in the present Supreme Court case against the RH Law. 

Below therefore are some basic points for law students and laymen on the concept of religious freedom under constitutional law.

Religious freedom arguments, by nature, work on the idea of exemption. Take for example the Flag salute case of Ebranilag or the live-in arrangement in Estrada, what is sought is not to render the laws subject of those cases unconstitutional but to ask that an exemption from its application be made with regard to those religions adversely affected by it.

Hence, what a petitioner in a religious freedom argument is saying is not that the law is unjust but only in that the law is unjust insofar as it hinders in the free exercise of their religion.

Generally speaking, therefore, to ask that a particular law be made unconstitutional in its entirety just because it happens to offend one's own particular religion is illogical and contradictory. It would also have the consequence of effectively imposing any religion's will on the rest of society.

Furthermore, the religious freedom argument also leads to other, even more complicated, questions. Because, if for example an exemption is indeed granted, how then would such exemption be applied? In the Ebranilag and Estrada cases, detailed conditions were laid out by the Supreme Court that must be complied with. However, in the case of the RH Law, how can such exemptions be given when the law itself does not force Catholics to use contraceptives? And this within the context that a substantial majority of Catholics are in favor of contraceptives. If the religious freedom argument were used only in relation to government health workers, then the same could easily be cured by the use of the separability clause.

The foregoing is assuming that it will be proven that no State interest will be served, that there is indeed a burden to religious rights, and that there is indeed sincerity in the religious belief. Then one would also need to overcome the "general and neutral test" and the "strict scrutiny test". Otherwise, the religious freedom will have to be set aside in favor of genuine State interest, such as what happened in the Lagman and Zosa case.

This nature of religious freedom arguments is further illustrated by the case relating to Jehovah's Witnesses and blood transfusions. As Mark Shea explains it: "What about JW’s and blood transfusions? Would I want a JW employer to be able to deny me blood transfusion coverage due to his moral issues with the procedure? Does preventing that violate his conscience rights?"

As another commentator puts it: by arguing religious freedom against the HHS Mandate (
a controversial US law that seeks to provide free contraceptives as part of healthcare), does it mean we are arguing for "the duty of the state to sanction and protect the 'right' of these folks to use illegal controlled substances for their religious worship. We have to allow for protection of Santeria practitioners to sacrifice small animals. We have to stand shoulder to shoulder with orthodox Jews in Germany who are arguing against a ban on religious circumcision (even though the Council of Florence taught that circumcision for religious purposes is a grave sin).

But, if we argue against HHS on grounds of liberty, what grounds do we leave ourselves to argue against the legitimacy of any other practice? Seventh Day Adventist gatherings on Saturdays where the Catholic Church is attacked and blasphemed as the Harlot of Revelation and Jehovah's Witness mock 'communions' and everything in between all becomes equally licit and permissible and worthy of state protection because, according to the Bishops, we all have the liberty to persevere in whatever religious error we happen to be enmeshed in. The religious liberty objection really says nothing about the objective truth or falsity of the religious practice in question; it simply appeals to the fact that the practitioner believes their opinions to be true and that this should be respected. Is entirely subjective."

Referral to US cases is a useful guide considering how similar the wording of our constitutional provisions are relating to the Bill of Rights of the US. Not to mention the close legal tradition that the Philippines shares with the US. Although with one major difference normally not seen by lawyers here: while the concept of Church-State separation is expressly written in our Constitution, the same is nowhere to be found in the US Constitution.

The practical effect of all that, as AZ Aizenman says, is that the anti-contraception camp has to "clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is 'neutral and generally applicable' — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.

Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise 'would be courting anarchy' by making '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.'

In the last decade, the highest state courts of both New York and California cited the Smith decision in blocking First Amendment challenges to state contraceptive-coverage laws virtually identical to the federal rule.

In both instances, the state courts found that their state’s laws met the 'neutral and generally applicable' standard set out in Smith. And in both cases, the U.S. Supreme Court declined to hear an appeal of the lower court’s decision."

That is why Janet Smith said, in relation to contraception and the HHS Mandate, the "religious-liberty argument isn’t sufficient for two reasons: The Church and the culture do not have the same understanding of religious liberty, and the status of contraception as health care is, in fact, very relevant to the question."

Finally, if the pro-life movement and its lawyers insist in arguing against the RH Law from a religious freedom perspective, it places them in the utterly and ridiculously ironic position of contradicting the Catholic Church. Because, remember, the position of the Church on contraception is (as Fr. Dylan Schrader puts it) "not that Catholics should not contracept ... it is that no one should contracept." Or to put it another way: "Contraception, sterilization, and abortion are always wrong for everybody, regardless of their religious beliefs."

To sum, from the foregoing, it can be seen why the religious freedom argument (if argued exclusively on its own) in relation to contraception has met with substantial difficulty in being accepted in the public square and why it could be a hard sell in court.


For those interested, my earlier comments on the matter, made just almost at the start of the RH Law case in the Supreme Court, can be found here. Some of the the legal issues or questions that we expect to be covered at the Supreme Court oral arguments on 23 July for the RH Law case can be found here and here.