Speech, religion and equal protection in the RH Law (2)By Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer
In my column last week I said that I would take up the Reproductive Health Law provision on age-appropriate education in public and private schools. I consider the subject very important since the concern of people about it is similar to the concern about religious instruction in public schools. I would not therefore consider it inappropriate for jurisprudence to look into the constitutional law on religious instruction in public schools. Sex education and religious instruction are closely related to morality education.
There are two constitutional provisions which should be considered.
First, Article II, Section 12 says: “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” This means that in the matter of education, the power of the State is merely auxiliary to the primary right of parents.
Second, Article XIV, Section 4(3) emphasizes even more the primary right of parents: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”
Considering that sexual morality is closely related to religion, the rule for religious instruction mutatis mutandis may analogously if not strictly apply to sexual education.
For the moment, however, all we have about sexual education are the guidelines to be followed by officials in formulating the curriculum. They are the following:
“Section 11.01 Age- and Development-Appropriate Reproductive Health Education. The State shall provide age- and development-appropriate responsible parenthood and reproductive health education to adolescents and school-age children which shall be taught by adequately trained teachers and educators in formal and non-formal educational system and integrated in relevant subjects . . . .:
“Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials, civil society organizations, and other interest groups.
“The Department of Education (DepEd) shall formulate a curriculum including concepts and messages on reproductive health, which shall be used by public schools. Private schools may adopt the DepEd curriculum or develop their own curriculum subject to approval by DepEd.”
I am confident that those charged with the responsibility of formulating the policies for age-appropriate education will have the integrity and wisdom to respect constitutional commands on education. Before making our judgment, therefore, let us wait. We have no right to presume that the critics of the RH Law are the only persons who have noble intentions about public welfare.
Let me move to the issue of equal protection.
The separate mention and separate provision for private schools in this matter have been criticized as a violation of equal protection. Even first year law students, however, know that equal protection is not an absolute rule. It allows for different treatment based on real differences. And there are substantial differences between public schools and private schools, especially religious schools, enough to allow different treatment of different schools. Jurisprudence has been doing this.
Another equal protection argument that has been brought up is that the state is being guilty of unconstitutional discrimination when it pays so much attention to and is ready to spend an enormous amount of money for reproductive health while not paying as much attention to other health issues. But in promoting the general welfare the state cannot be expected to attend to all problems at the same time. Prudence requires that the state prioritize which battles to fight and when.
I do not know what other major or minor arguments might be brought up by opponents of the RH Law. Whatever other issues may arise, one underlying principle that must be kept in mind is that the current Philippine government is a secular one. It is not governed by the Vatican nor by the Philippine hierarchy nor by the religious majority of our population. Saying that, however, does not mean saying that our government is immoral or amoral. It is merely saying that it is different and that we must recognize and respect differences. As the “Compendium on the Social Teaching of the Catholic Church” says, “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”
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