I dissent from the majority opinion remanding this case for further proceedings. The ostensible purpose of the remand is to allow respondent Soledad S. Escritor to buttress the sincerity of her claimed religious belief and for the Solicitor General to meet the test of compelling state interest to override respondents religious belief.

However, Escritor expressly admits that she is cohabiting with Luciano D. Quilapio, Jr. who is married to another woman. Escritors conduct is that of a concubine under Article 334 of the Revised Penal Code outlawing concubinage. Escritor may now be subjected to disciplinary sanction for conduct prejudicial to the best interest of the service. Escritors religious belief, no matter how sincere, cannot exempt her from Article 334 of the Revised Penal Code declaring concubinage a criminal act. Sincerity or insincerity in religious beliefs is not a test in allowing or disallowing exemption from a harmful conduct that the State has a right to suppress.

A remand of this case for further proceedings is clearly unnecessary. Escritors unlawful cohabitation with Quilapio is an admitted fact regardless of the outcome of the remand of this case. Escritors cohabitation with Quilapio constitutes concubinage which is a crime under our laws.

The issue then would inevitably turn on whether Escritor, or any citizen for that matter, may invoke religious freedom to justify conduct that patently violates our criminal statutes. Such conduct in the present case is concubinage. However, under the same claim of religious freedom, such conduct may be bigamy, sacrifice of infants or infanticide, sacrifice of virgins or murder, or use and possession of prohibited drugs as part of religious rituals. This is the issue that I address in this dissent, after showing that Escritors conduct is neither disgraceful nor immoral.

Escritor and Quilapio have lived together since 1980. They have a 21-year old son whom they raised together. Escritor was previously married but her husband left her in 1979 for another woman. Escritors husband died in 1998. Escritor joined the judiciary only in 1999. On the other hand, Quilapio and his legal wife were already separated in fact even before Escritor and Quilapio began living together. Quilapios wife has not filed any complaint against either Quilapio or Escritor.

On 22 August 2000, complainant Alejandro Estrada filed this complaint for disgraceful and immoral conduct against Escritor for cohabiting with a man who is not her husband. Complainant, who is not a court employee, admits not knowing Escritor personally.

I do not find Escritor liable for disgraceful and immoral conduct. The Jehovahs Witnesses, the church to which Escritor and Quilapio belong, formally approved[1] in 1991 their relationship as husband and wife after a long and careful consideration by church elders. The members of the Jehovahs Witnesses have fully accepted the Escritor and Quilapio couple as part of their Christian community. In their religious and social community, Escritor and Quilapio are seen and treated just like any other husband and wife. The couples cohabitation has not created any scandal, moral outrage or malicious gossip in their congregation or even in the community where they live and work. On the contrary, those who come to know of the couples predicament in life express their sincerest sympathy and compassion.

When the Catholic Church annuls a marriage, and the parties remarry in church with different partners even without a court annulment of their marriage, do we condemn their second marriages as disgraceful and immoral conduct? When a Muslim man lives with more than one wife, do we declare his relationship with his other wives as disgraceful and immoral? In Sulu Islamic Association of Masjid Lambayong v. Malik,[2] this Court ruled that a Muslim judge who takes a second wife is not guilty of disgraceful and immoral conduct because such practice is not immoral by Muslim standards. The Muslim judge is not also criminally liable for bigamy because Sharia law allows a Muslim to have more than one wife.

In De Dios v. Alejo,[3] the Court quoted with approval a decision of the Board of Civil Service[4] dismissing an immorality charge against a clerk who, in the words of the Board, does not exercise a moral influence in the community and whose conduct has not jeopardized the honor of any third person. The Board explained that those most concerned with the relationship - the unfaithful legal wife who no longer lived with respondent, the woman living with respondent and the four children, have not voiced an objection to the situation as it existed for ten (10) years. The Board added that technically, the clerk was guilty of immorality, but actually this can hardly be considered as notoriously disgraceful immoral conduct.

The term disgraceful and immoral conduct is not necessarily a single, ironclad universal code applicable to all situations, ethnic groups and religions. This Court has recognized a Muslim standards on disgraceful and immoral conduct with respect to multiple marriages by Muslims. We cannot reject a Jehovahs Witnesses standards on the same matter without violating the equal protection clause,[5] the free exercise of religion,[6] and the separation of Church and State provision[7] of the Constitution.

In disgraceful and immoral conduct, the conduct must not only be immoral, it must also be disgraceful. Immoral conduct means conduct that is willful, flagrant or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.[8] Disgraceful conduct means conduct that is ignominious, shameful, and dishonorable.[9] Judge Bonifacio Maceda, whom the Court assigned to investigate the administrative charge, did not find the relationship between Escritor and Quilapio disgraceful and immoral in view of the acceptance of the relationship by members of the Jehovahs Witnesses.[10] Even the complainant admits that Escritor is a decent woman.[11] Indeed, no one has testified that Escritors relationship with Quilapio is ignominious, shameful, or dishonorable conduct. Not a single witness who qualifies as a good and respectable member of the community has testified that Escritors conduct is willful, flagrant and shameless.

However, while Escritor is not guilty of disgraceful and immoral conduct, her cohabitation with the legally married Quilapio, a fact Escritor readily admits, constitutes conduct prejudicial to the best interest of the service. Quilapio, whose marriage to another woman still subsists, is liable for concubinage under Article 334 of the Revised Penal Code for cohabiting with Escritor. There is no showing that Quilapios wife has consented to Quilapios cohabitation with Escritor. In concubinage, the concubine is a necessary co-accused of the offending spouse.[12] The concubine is punished with destierro. While no one can criminally prosecute Quilapio and Escritor without the complaint of Quilapios legal wife,[13] still this Court cannot countenance such unlawful conduct by a court employee. In conduct prejudicial to the best interest of the service, the immorality of the conduct is not in issue. What is in issue is the adverse effect of the conduct on the efficiency, integrity and credibility of the civil service, and in the case of the judiciary, its impact on the administration of justice.

The Court cannot simply turn a blind eye to conduct of a court employee that, by the employees own admission, violates our criminal statutes. Such conduct is prejudicial to the best interest of the administration of justice. Court employees, from the highest magistrate to the lowliest clerk, are expected to abide scrupulously with the law. They are held to a higher standard since they are part of the judicial machinery that dispenses justice. The courts of justice cannot harbor those who openly and knowingly commit a crime. Courts of justice would lose their moral authority and credibility if they condone violators of the law. They would be remiss in their solemn duty of upholding the law if they continue to employ those who admit running afoul with our criminal statutes. Thus, there exists a compelling state interest to hold Escritor to the same standards required of every court employee. If unsanctioned, Escritors unlawful conduct would certainly impair the integrity and credibility of the judiciary.

Unlike in Sulu Islamic Association of Masjid Lambayong v. Malik,[14] no law validates the cohabitation of Escritor with Quilapio. For the Court to provide a safe haven to Escritor despite her admission of cohabitation with Quilapio would undermine the integrity and capacity of this Court to dispense justice equally and fairly. The Jehovahs Witnesses cannot declare Escritors cohabitation with Quilapio as lawful, although it can declare such cohabitation as compatible with its religious beliefs. The Court cannot penalize Escritors cohabitation as immoral in view of the freedom of religion and the separation of Church and State. However, on the same principle of separation of Church and State, the Court can penalize Escritors cohabitation as conduct prejudicial to the best interest of the service.

Thomas Jefferson, who championed[15] the free exercise of religion and non-establishment clauses in the U.S. Constitution, from which we adopted our own counterpart provisions, wrote to the Baptists in 1802 when he was President:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith and worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[16] (Emphasis supplied)

In the landmark case of Reynolds v. United States,[17] the U.S. Supreme Court stated that Jeffersons explanation is almost an authoritative declaration of the scope and effect of the two constitutional clauses. The legislature has no power to regulate mere religious belief or opinion. The legislature, however, may regulate actions or conduct, even though religiously motivated, that violate the public order. The legislatures power to outlaw concubinage, bigamy, polygamy and other conduct harmful to public order, despite religious practices allowing such conduct, is well-settled in American jurisprudence.[18]

In Employment Division v. Smith,[19] the U.S. Supreme Court rejected a claim by the Native American Church that smoking peyote,[20] classified as a controlled substance, is protected by the free exercise of religion if done as part of a religious ceremony. The U.S. Supreme Court clarified its earlier ruling in Wisconsin v. Yoder[21] by stating that it had never held that an individuals religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

In Smith, the U.S. Supreme Court stated that the legislation prohibiting controlled substances was a neutral law that applied to all citizens and did not single out the Native American Church. Applying the hybrid test, the U.S. Supreme Court held that the free exercise of religion, standing alone without any other constitutional right being invoked, cannot defeat the States right to regulate the use of controlled substances.

In the instant case, Escritors sole constitutional justification in claiming exemption from the prohibition on concubinage is her religious belief. Escritor does not claim that her conduct is protected by any other guarantee under the Bill of Rights. Moreover, Article 334 of the Revised Penal Code, as originally enacted and as presently in force, does not single out the Jehovahs Witnesses.

The power of the legislature to declare concubinage a crime against the State is certainly beyond dispute. In effect, the legislature pronounces a socially reprehensible act, which may or may not constitute an immoral act by certain religious standards, a crime that the State has a right to suppress to protect public order and the general welfare. The wall of separation between Church and State is no defense against the States police power over conduct constituting concubinage, bigamy or polygamy.

While Escritors cohabitation with Quilapio conforms to the religious beliefs of the Jehovahs Witnesses, the cohabitation violates Article 334 of the Revised Penal Code. The State cannot interfere with the religious beliefs of the Jehovahs Witnesses, in the same way that the Jehovahs Witnesses cannot interfere with the States prohibition on concubinage. The free exercise of religion protects practices based on religious grounds provided such practices do not violate existing laws enacted in the reasonable exercise of the States police power.[22]

As early as in 1933 in People v. Bitdu,[23] this Court has ruled that religious practices cannot override laws relating to public policy. In Bitdu, the accused, a Muslim woman charged with bigamy, raised the defense that under Muslim religious customs she validly divorced her first husband. At that time there was no statute recognizing divorces and multiple marriages under Sharia law. In rejecting this defense, this Court quoted with approval the trial courts decision stating as follows:

x x x In the Philippine Islands we have a law (Act No. 2710) enumerating the causes and conditions under which divorce may be secured and granted. Any divorce obtained in the Philippine Islands for causes and under conditions other than those enumerated in said law, would have no legal effect. The habits and customs of a people, the dogmas or doctrines of a religion cannot be superior to or have precedence over laws relating to public policy x x x. (Emphasis supplied)

In Bitdu, the Solicitor-General urged this Court to uphold the validity of Muslim divorces, citing the case of American Indians whose customs and practices on marriages and divorces were, and still are, recognized by the United States Government. This Court stated:

The decisions of American courts, cited by the Solicitor-General, sustaining the validity of divorces granted to members of Indian tribes according to the customs and usages thereof, are likewise not in point. The various Indian tribes in the United States were dealt with by the Government of the United States as independent nations and treaties were made with them.

As to the suggestion of the Solicitor-General that divorces among the Moros according to their religious practices should be recognized as valid as a matter of public policy, because in the contrary case "there would be no end of criminal prosecutions, for polygamy still abounds among them, and the remarriages of people divorced under the Koran are the order of the day," that is a matter for the consideration of the Legislature and the Governor-General. xxx. (Emphasis supplied)

The free exercise of religious belief is absolutely protected, but the freedom to act according to such religious belief is subject to the police power of the State.[24] As held in Reynolds v. United States[25] which involved the practice of polygamy:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make 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. Government could exist only in name under such circumstances. (Emphasis supplied)

Article 334 of the Revised Penal Code seeks to protect marriage as the foundation of the family. The Constitution mandates that [M]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Article 334 of the Revised Penal Code is a reasonable exercise of the States police power to protect a social institution that the Constitution declares as inviolable. The religious teachings of the Jehovahs Witnesses cannot amend or repeal Article 334 of the Revised Penal Code on concubinage. Escritor clearly recognized this when she promised to legalize[26] in the future her union with Quilapio.

Under the Revised Administrative Code of 1987, one of the grounds for disciplinary action is conduct prejudicial to the best interest of the service.[27] The penalty for a first offense is suspension of six months and one day to one year. A second offense is punishable with dismissal from the service.[28]

Escritor, however, deserves the same compassionate treatment accorded to a similarly situated court employee in De Dios v. Alejo[29] if Escritor should end her unlawful relationship with Quilapio. In De Dios, the Court, in deciding not to dismiss an employee because he finally terminated his cohabitation with another woman, ruled:

In the instant case, We cannot close our eyes to the important considerations that respondents have rendered government service for more than thirty-three and twenty-five years, respectively, and that there is no showing that they have ever been found guilty of any administrative misconduct during all those periods. In the case of respondent Alejo, it seems rather sadistic to make her suffer the extreme penalty of dismissal from the service after she had taken care of her co-respondent's four children, giving them the needed love and attention of a foster mother after they were completely abandoned by their errant and unfaithful natural mother. Even respondent Marfil, if to a lesser degree, is deserving of compassion. Most importantly, respondents have amply demonstrated that they recognize their mistake and have, therefore, actually mended their ways by totally breaking their relationship complained of, in order to conform with the imperatives of public interest. Objectively speaking, it cannot be denied that such separation requires a great deal of sacrifice and entails personal difficulties that cannot be easily ignored, thus making the resolution of respondents to give up what is most meaningful to them worthy of some measures of liberality in the imposition of the indispensable penalty which has to be meted to them. (Emphasis supplied)

Therefore, any initial penalty imposed on Escritor should be lifted the moment she ends her cohabitation with Quilapio.

Given the circumstances, it would seem unduly harsh to penalize Escritor for cohabiting for the last 23 years with a man she believes is her husband and she knows is the father of her son. No third party has claimed or suffered injury because of their cohabitation. On the contrary, suspending or even dismissing her for her continued cohabitation would only work hardship on her family. The remedy, however, lies not with this Court but with the legislature. We can only call the legislatures attention to Escritors failure to legalize her union with Quilapio, a failure that deserves legislative inquiry and probably remedy, even as we are bound to apply the law without fear or favor.

Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one day without pay for conduct prejudicial to the best interest of the service. However, the suspension shall be lifted immediately upon Escritors manifestation to this Court that she has ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio, during or after her suspension and while Quilapios marriage with his legal wife still subsists, shall merit the penalty of dismissal from the service.

[1] Escritor and Quilapio signed the Declaration Pledging Faithfulness with their church leaders as witnesses. This document states:

Declaration of Pledging Faithfulness

I, Soledad S. Escritor, do here declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public Authorities and it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make (sic) this possible, I promise to legalize this union.

[2] Adm. Matter No. MTJ-92-691, 10 September 1993, 226 SCRA 193.

[3] Adm. Matter No. P-137, 15 December 1975, 68 SCRA 354.

[4] Now the Civil Service Commission.

[5] Section 1, Article III of the 1987 Constitution provides: No person shall be x x x denied the equal protection of the laws.

[6] Section 5, Article III of the 1987 Constitution provides: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

[7] Section 6, Article II of the 1987 Constitution provides: The separation of Church and State shall be inviolable.

[8] Arciga v. Maniwang, Admin. Case. No. 1608, 14 August 1981, 106 SCRA 594; Blacks Law Dictionary, p. 751, 6th Edition (1990).

[9] Blacks Law Dictionary, p. 468, ibid.

[10] Report and Recommendation of Investigating Judge Bonifacio Maceda dated 1 July 2002.

[11] TSN, 12 October 2000, p. 7; Rollo, p. 23.

[12] Article 334 of the Revised Penal Code provides:

The crimes of adultery and concubinage shall not be prosecuted except upon the complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.


[13] Ibid.

[14] See note 2. Article 180 of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides: The provisions of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married in accordance with the provisions of this Code or, before its effectivity, under Muslim law. In the United States, Native Americans are allowed to marry according to their customs as long as they are members of a tribe recognized and treated with as such by the United States government. Thus, a Native American can enter into a polygamous marriage if his tribes customs allow it, even if it conflicts with state law (Hallowell v. Commons, 210 F. 793, 8th Circuit, 1914). The various Indian tribes in the United States were dealt with by the U.S. Government as independent nations and treaties were made with them [People v. Bitdu, 58 Phil. 817 (1933)].

[15] While generally credited as the leading advocate of the First Amendment, Thomas Jefferson was neither a framer nor signer of the U.S. Constitution. In Everson v. Board of Education [330 U.S. 1 (1947)], the credit for authoring the First Amendment is given to James Madison, an author of the Federalist Papers and known as the Father of the Constitution. In his dissenting opinion in Wallace v. Jaffree [472 U.S. 38 (1985)], Justice William Rehnquist totally belittles Jeffersons role in the adoption of the First Amendment. Rehnquist claims that Jefferson would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clause of the First Amendment. Rehnquist even criticizes Jeffersons wall of separation as a misleading metaphor.

[16] Quoted in Reynolds v. United States, infra, see note 16.

[17] 98 U.S. 145.

[18] David Barton, The Image and the Reality: Thomas Jefferson and the First Amendment, 17 Notre Dame Journal of Law, Ethics and Public Policy 399 (2003).

[19] 414 U.S. 872 (1990).

[20] A Mexican intoxicant made from the tops of a spineless, dome-shaped cactus native to Mexico and the southwest United States.

[21] 406 U.S. 205 (1972).

[22] Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), Vol. 1, p. 321, citing Reynolds v. United States, 98 U.S. 145 (1878).

[23] 58 Phil. 817 (1933).

[24] Ibid., p. 322, citing Cantwell v. Connecticut, 310 U.S. 296 (1944).

[25] See note 16.

[26] Declaration Pledging Faithfulness, see note 1.

[27] Section 46(27), Chapter 6, Book V of the 1987 Revised Administrative Code.

[28] Section 52(20) of Civil Service Commission Memorandum Circular No. 19-99.

[29] See note 3.