San Beda College
THE DEAN OF THE GRADUATE SCHOOL OF LAW
STATEMENT IN BEHALF OF THE CATHOLIC BISHOPS CONFERENCE OF THE PHILIPPINES
Earlier, the Catholic Bishops Conference of the Philippines was asked to comment on the Anti-SOGI Bill in the past Congress. It has once more been asked for its comments in respect to H.B. No. 0051 covering the same subject. In considerable measure, the CBCP incorporates its position already expressed in the previous Congress with the additional remarks here with submitted and incorporated in this position paper.
The leadership of the CBCP has studied the draft legislation. Every initiative towards a more inclusive society that is respectful of the rights of others, that recognizes the dignity of all and that protects sectors traditionally discriminated against from further marginalization enjoys the commendation of the Conference.
We hasten, however, to point out that while the proposed law aims at penalizing discriminatory and derogatory practices against others on the basis of sexual orientation and gender identity, more fundamental ought to be a resolute effort on the part of all to dismantle conceptual frameworks as well as institutionalized practices by which some are considered less deserving of respect, the repositories of lower degrees of rights! A virtue is essentially a good habit, and what the Conference would be happy to see developed is the national good habit of rendering unto each person, what each is due as one created in the image and likeness of God!
In respect to draft Section 4 of the proposed Legislation, the Conference respectfully points out the definition of an “ecclesiastical affair” that lies beyond the purview of State action, by virtue of the constitutionally enshrined separation of Church and State and the twin clauses of “free exercise” and “non-establishment”. The Supreme Court, in United Church of Christ in the Philippines v. Bradford United Church of Christ, G.R. 171905 (June 20, 2012), maintained the following definition:
An ecclesiastical affair is one that concerns doctrine, creed or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities attached with religious significance.
It is then the position of the Conference that the fitness of a candidate for ordination to any of the grades of the Sacrament of Order in the Catholic Church is a matter internal to the Catholic Church and is beyond the reach of the draft legislation presently under deliberation. Under the same protective pale will fall decisions of seminaries and houses of formation on who may or may not be admitted or retained for formation towards the priesthood or the religious life. It is our submission that Estrada v. Escritor, A.M. No. P-02-1651 (August 4, 2003) amply protects such ‘ecclesiastically internal’ decisions from State scrutiny, review or reversal because of its adoption of the strict standard of ‘compelling state interest’.
It is salutary, we believe, to return to the pronouncement of the Supreme Court in Garcia v. Loyola School of Theology, G.R. 40779 (November 28, 1975) where the Court had occasion to teach:
That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by the Constitution. For it is to be noted that the reference is to the “institutions of higher learning” as the recipients of this boon. It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose, nullify its intent. Former President Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is similarly of the view that it “definitely grants the right of academic freedom to the university as an institution as distinguished from the academic freedom of a university professor.” (emphasis ours)
Besides, therefore, the requirements of “free exercise”, there are considerations of academic freedom in respect to the freedom of seminaries and houses of formation to determine their objectives and to select their students on the basis of such a determination. These freedoms, we respectfully point out, are of constitutional provenance and can therefore not be negated or qualified by statute.
Sections 4 (a) and (b) of the Bill appear at first blush to be benevolent and non-threatening. However, the CBCP strongly suggests the inclusion of the following proviso to the draft section.
Sec. 4, b xxx Provided further that: The right of schools of basic education and institutions of higher education under the precepts of academic freedom to choose their students by standards and criteria consistent with their philosophy, mission and objectives shall be maintained.
The clear import of the suggested proviso is that on the grounds of overt acts arising out of sexual orientation or gender identity choices, the school or higher education institution may, in the lawful exercise of institutional freedom, refuse admission to a student whose overt acts it considers unacceptable and incompatible with its avowed mission, objectives and philosophy.
Neither should this legislative proposal – or any other proposal – be used to muffle the Church as it instructs its members on its understanding of human personhood and the finality of sexual activity. The Catholic Church may have problems with certain acts – and our Constitution guarantees the Church the right to instruct the faithful in these matters of morals – but it can and should never reject anyone as unworthy of the Church’s love, ministry and care because of orientation or gender identity. In this, it is fully at one with this Committee’s proposed measure.
A similar reservation is maintained in respect to sub-paragraph “h” prohibiting psychological examinations that determine one’s orientation and gender identity. Part of the protocol of the Catholic Church in regard to the admission of candidates to the seminary, as well as candidacy for Holy Orders is precisely such an examination. It is a matter of public notice that scandalous and injurious complaints against members of the clergy, especially in the United States, but even locally, have made it a matter of utmost importance that the dispositions of a candidate for the priesthood and his fitness for Order on this basis should be clearly determined. This, we submit, is a purely ecclesiastical matter that the State must respect. We also therefore submit that should an action be brought by any person denied admission to a seminary or to a program or house of formation, or denied ordination or the reception to candidacy for Holy Orders on the basis of the provisions of this bill, such a plaintiff should be deemed to have failed to state a cause of action.
Having thus expressed our understanding of the provisions of the consolidated draft bill in the light of constitutional law jurisprudence, we hasten to add that the CBCP will not be grudging in its support of all measures that have as their end the acceptance of all on the basis of mutual respect. Inspired by the example and the teaching of Pope Francis, the Catholic Church in the Philippines will endeavor to be less judgmental, more understanding and more accepting of persons, their preferences and differences without compromising on the moral precepts that, it continues to believe, are not of its making but are part of that wondrous gift called Revelation.
Fr. Ranhilio Callangan Aquino
Counsel for Advocacies