Special treatment for anti-RH Catholics?

Should we require special treatment for people whose religious beliefs we do not share? And may unelected judges order such special treatment instead of Congress? This, not claims that condoms cause cancer, is the issue that reproductive health advocates must address.

A man is supreme in his own conscience and democracy bends backward to accommodate religious belief. For example, we have special laws allowing Muslims to marry more than one woman and adjust their work hours during the fasting month of Ramadan. During the Vietnam War, Muhammad Ali was one of many excused by the US Supreme Court from the draft because he was a “conscientious objector.” No one should be penalized for that most intimate part of his being he calls his religion.

Accommodating religion, however, inevitably results in special treatment. Imagine yourself judging court interpreter Soledad Escritor, accused of scandalously living and having a child with a married man (albeit separated). The couple were members of Jehovah’s Witnesses and, because they could not marry, lived under their sect’s prescribed “Declaration of Pledging Faithfulness.” You do not doubt their sincerity, but they are committing the crime of concubinage because our law does not recognize the declaration.

The 2003 Escritor case so split the justices that no majority ruling was formed. Then Chief Justice Reynato Puno and his group refused to punish Escritor. Sincere religious belief, Puno argued, may only be overridden by a “compelling state interest.” He could not see why society would turn inside out if the “Declaration of Pledging Faithfulness” was respected.

Puno prominently cited the classic US case Sherbert v. Verner. A member of the Seventh Day Adventists claimed unemployment benefits after being fired for refusing to work on Saturdays. The US court upheld the claim, finding no compelling state interest to penalize his religion’s choice of rest day.

Senior Associate Justice Antonio Carpio and his group believed they had to suspend Escritor, as she was committing a crime the courts themselves enforce. Although Carpio was sympathetic, respected her church’s support, and acknowledged that no one was harmed by her conduct, he believed that only elected Congress should grant sensitive religious exemptions, which is the case with exemptions for Muslims.

Carpio cited the equally classic US case Employment Division v. Smith, where a Native American was fired after using the psychoactive plant peyote in a traditional ceremony. The US court stated it “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

Imagine your dilemma. If you order special treatment for Escritor, would you not encourage others to join Jehovah’s Witnesses to evade crime? Because the Constitution protects all religion and not just organized religion, theoretically, anyone can claim that a flying spaghetti monster appeared to him and told him to commit adultery and concubinage in its divine name. Yet, should these hypothetical concerns force you to punish the real woman in front of you for what her religion teaches is moral?

Ten years later, instead of Soledad Escritor, Carpio faces all Filipino women. Instead of disciplinary rules, he faces the RH Act. And instead of Puno, he faces Luisito Liban, senior partner of elite firm SyCip Salazar, arguing the RH Act’s invalidity.

Alluding to the Smith ruling that he cited against the now retired Puno, Carpio asked Liban if we may punish marijuana use in a religious ceremony. This was a sporting invitation from the senior justice for Liban to stand in for Puno in the unfinished duel. In the key moment pundits missed, Liban shockingly declined. He answered that “neutral” antidrug laws are valid, which was the Smith ruling, but in doing so adopted Carpio’s stricter—and not Puno’s more liberal—view on religious exemptions.

Every Filipino, pro or anti, must decide whether further religious exemption must be granted under the RH Act. If a health worker has ethical objections to advising a patient on contraception, the law states that he must direct the patient to another provider. Liban argued that this violates religious freedom because this limited participation is still complicity in sin under Catholic doctrine. This part of the RH Act, he claimed, forces a Catholic health worker to sin under pain of a jail term.

The default response is that the Supreme Court should respect how Congress already studied the objection and prioritized ensuring access to proper RH advice over further special treatment. (To Liban’s credit, he actually phrased his objections in legal terms, and one doubts if another lawyer could have done much better with the poorly set up anti-RH case.)

The reservation, however, is that a religious-freedom case must be viewed from the believer’s perspective. The pro-RH camp is not allowed to judge his belief, whether in Jesus or a flying spaghetti monster. It would be ironic if ultraconservative doctors protest that their freedom of choice is being curtailed by inflexible RH supporters and their bigoted beliefs from the dark ages.

Carpio has comfortably inherited the role of the renowned justice and professor Vicente V. Mendoza as the Supreme Court’s strict constitutionalist. One wonders who will be bold enough to claim Puno’s mantle when the approach to religious exemptions is debated once again. Ironically, the best chance for a modest victory by anti-RH ultraconservatives on this narrow point is to quote the liberal Protestant, Chief Justice Puno.

Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East.