Article III, Section 5 of the 1987 constitution states: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” This provision is in all previous constitutions and basic laws: the 1902 Philippine Organic Act (Section 5), the 1916 Philippine Autonomy Act (Section 3k), the 1935 constitution (Article III, Section 1(7), and the 1973 constitution (Article IV, Section 8).
A legacy of US constitutional law, it is the US Bill of Right’s First Amendment, adopted in 1791, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
It has two parts: (1) the non-establishment clause and (2) the free exercise clause.
Non-establishment according to Everson v. Board of Education (1947) means: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions… Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’.”
Free exercise according to Cantwell v. Connecticut (1940) has two aspects. “On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion… the amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” Free exercise as belief or the freedom to believe cannot be restricted by law but free exercise as action or the freedom to act in accordance with such beliefs may be subject to government regulation.
Both guarantee and protect freedom of religion. But should both be present for the protection of religious liberty? Can religious freedom be guaranteed and protected when one is missing?
On May 6, 2023, King Charles III of the United Kingdom was crowned. The event displayed in full pageantry the establishment of a church and religion in a country consistently ranked “Free” by Freedom House with a 2022 Freedom House score of 93/100, outranked by only 22 of 209 countries.
While non-establishment is the constitutional norm in the US and Philippines, establishment has a long history in the UK. In 1534, parliament’s Act of Supremacy declared King Henry VIII the Church of England’s “supreme head.” In 1559, another Act of Supremacy installed Queen Elizabeth I the Church’s “supreme governor” and mandated an Oath of Supremacy for all public servants and clerics. In 1661 to 1665, four parliamentary Acts, called the “Clarendon Code,” re-entrenched the Church following the restoration of the English monarchy after the civil war. The 1701 Act of Settlement mandated communion with the Church of England, and never communion with the Church of Rome, to all who ascend the throne, ensuring that all English monarchs are Protestants, never Roman Catholics.
This long history of establishment was in full display during the coronation.
The head of state’s formal enthronement took place in a church — Westminster Abbey — and the Church of England’s top prelate — the archbishop of Canterbury, primate of all England — conducted.
The “coronation service” was set “within the context of the Eucharist… the defining act of worship for the Church universal.”
The coronation oath reveals the details and extent of establishment. There is a “Church established by law, whose settlement” the king “will swear to maintain.” To the utmost of his power, the king promised to:
• “maintain the Laws of God and the true profession of the Gospel”;
• “maintain in the United Kingdom the Protestant Reformed Religion established by law”;
• “maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England”; and,
• “preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges as by law do or shall appertain to them or any of them.”
He also took the statutory “Accession Declaration Oath” and professed, testified, and declared that he is “faithful Protestant” and that he will uphold and maintain the enactments “which secure the Protestant succession to the Throne.”
Despite an established church and religion, there is freedom of religion in the UK. There is general acceptance of religious diversity and there is no state-sponsored religious discrimination or persecution. The reason is free exercise. As the king promised to maintain and preserve establishment, he too made a promise to uphold free exercise. After taking the oaths, he, kneeling before the church altar, prayed: “Grant that I may be a blessing to all thy children, of every faith and belief, that together we may discover the ways of gentleness and be led into the paths of peace; through Jesus Christ our Lord. Amen.”
Millard O. Lim is a lecturer at the Department of Political Science, Ateneo de Manila University. He teaches comparative politics and religion and politics.
