Separation of Church and State, Non-Establishment of Religion and Human Rights Standards by Clara Rita A. Padilla

I, too, was baptized a Catholic. As a small child, my father used to give me a reward for completing each mass I attended by giving me barquillos. But, as a young five-year old, I questioned how the Catholic Church would make me sit down, kneel, and stand up several times during mass that seemed to last an eternity to me. At some point, no amount of barquillos could make me go to mass. In college, the service to the poor program of the University of the Philippines Student Catholic Action (UPSCA, for short) encouraged me to be part of UPSCA throughout my whole college life.

The exercise of one’s religion is a basic right. There is danger, however, when one dominant religion such as the Catholic Church imposes its views on others who do not share the same views.

What the Filipino Catholic bishops fail to recognize is that alongside the right to exercise one’s religion is the right to freedom of thought and conscience (Art. 18, International Covenant on Civil and Political Rights). The freedom of religion is protected equally with the freedom of thought and conscience (Human Rights Committee, General Comment 22).

With the constitutional guarantee of the right to practice one’s religion is the protection of the non-establishment of religion and the separation of church and state. The guarantee of non-establishment of religion means that the state must not establish any religion in its government and must not prefer one religion over another while the guarantee of separation of church and state guards against the views of one religion from influencing the laws and policies of the state. This means that government officials are representatives of the people and not of any religion.

In the case of Ang Ladlad Party-List which we argued before the Supreme Court, we argued on grounds of non-establishment of religion and separation of church and state. The Supreme Court ruled in our favor by holding that the standard to be used in government should not be religious morality but rather secular morality that is good for all the citizens.

The Spanish colonial rule brought us Catholicism and even some of its out-dated colonial laws. Around the world, countless Catholics are not against reproductive rights. In many predominantly Catholic countries, they allow access to contraceptives including emergency contraceptives, and sexuality education. Over thirty predominantly Catholic countries[1] have registered emergency contraceptive pills such as Postinor and the like. These emergency contraceptives are important in preventing pregnancies such as in cases of rape.

According to the UNFPA 2010 State of the World Population, the Philippine contraceptive prevalence rate for modern methods is 34% compared to 62% of Spain. The same report states that the Philippine maternal mortality ratio is 230 per 100,000 live births while Spain has only 4 per 100,000 live births (UNFPA SWP 2010). Spain allows abortion on certain grounds and was even the third country to allow same-sex marriage.

Even the Vatican Council itself declared in its 1965 Dignitatis Humanae Declaration that "the human person has a right to religious freedom” and that no person shall be coerced to act against one’s beliefs.[2] It further declared that "in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion…."[3] The Council added that "the Christian faithful, in common with all other men [and women], possess the civil right not to be hindered in leading their lives in accordance with their consciences."[4] In plain and simple language, “walang pilitan ng paniniwala.” The Filipino bishops, the likes of the Barangay Ayala Alabang officials and others who shove their anti-choice beliefs down our throats should uphold the Dignitatis Humanae Declaration which respects the right to religious freedom and conscience.

Pope Benedict XVI has been quoted to say that using condoms may be justified to stop the spread of AIDS citing the examples of women in prostitution and their use of condoms. By justifying the use of condoms to fight the spread of HIV and AIDS, the Pope is making a realistic stance to address the spread of a deadly virus which can be prevented by effective and consistent use of condoms and providing programs such as sex education to discuss vulnerabilities to infection, prevention and treatment of HIV and AIDS. The Pope’s relaxed stance is an example of how religious morality should be in line with secular standards, public health, and human rights.

It is time for us to separate the Catholic Church as an institution from the Catholic religion. I question the Philippine Catholic Church hierarchy’s stance on the Reproductive Health Care (RH) bill since such stance is detrimental to the health and lives especially of poor Filipino women who are the ones most affected by the delayed passage of a comprehensive RH law.

The realities of unintended pregnancies, maternal deaths and deaths related to unsafe abortion should be addressed. Surveys have come out showing that Filipinos clamor for the passage of the RH bill into law.

The 2008 National Demographic and Health Survey (2008 NDHS) cites health concerns and fear of side effects as the two foremost reasons why women do not use contraceptives while only three percent do not use contraceptives because of religious belief.

The job of the enlightened Catholics would be to urge our legislators and the executive branch of our government to ensure that reproductive rights are fulfilled---not tomorrow but now. At the end of the day, there should really be no other standard except human rights standards.
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[1] Argentina, Austria, Belgium, Bolivia, Brazil, Burundi, Chile, Colombia, Cuba, Dominican Republic, Ecuador, France, Guatemala, Hungary, Ireland, Italy, Lesotho, Lithuania, Luxembourg, Mexico, Nicaragua, Paraguay, Peru, Poland, Portugal, Rwanda, Slovakia, Slovenia, Spain, Uruguay, and Venezuela.
[2] Declaration on Religious Freedom Dignitatis Humanae on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious Promulgated by his Holiness Pope Paul VI on December 7, 1965.
[3] Id..
[4] Id.

Description of the Author:

Clara Rita “Claire” Padilla is the founder and Executive Director of EnGendeRights. She is a widely published feminist lawyer and women’s rights activist. She has specialized expertise in the field of gender, gender-based violence, law, sexual and reproductive health and rights, and sexual orientation. She worked in the Philippines and in New York, United States. She has extensive experience in training, litigation, research, writing, and policy advocacy.

After graduating from law school, she has dedicated her life in changing laws, policies, and practices that are discriminatory against women and lesbians, gays, bisexuals, transgenders and intersex (LGBTI). She has conducted trainings in urban poor communities and far-flung areas in the Philippines and has conducted trainings for judges, police, lawyers, doctors, government officials, crisis intervention counselors, academe, students, and members of civil society. She has also raised women’s and LGBTI concerns to the international level especially the United Nations mechanisms on various issues including sexual and reproductive rights, gender-based violence, sexual orientation and gender identity, migration and trafficking, among others.

She spearheaded the submission of a collaborative Shadow Report to the August 2006 Review of the Committee on Elimination of Discrimination against Women (CEDAW Committee) on the Philippines and made an oral intervention in said CEDAW Committee Session in New York leading to the successful adoption of strong sexual and reproductive health and rights language in the CEDAW Committee’s Concluding Comments on six of the areas of concern stated in our Shadow Report (i.e., access to the full range contraceptive methods including emergency contraception, access to safe and legal abortion, sexuality education for adolescents, skills and education for women in prostitution, legalization of divorce and repeal of discriminatory Muslim Code provisions).

She wrote the EnGendeRights submission to the First Universal Periodic Review in November 2007 and made the oral intervention in June 2008 in Geneva. She was a member of the International Women’s Rights Action Watch Asia Pacific (IWRAW-AP) delegation that advocated towards the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP ICESCR) in December 2008. She spearheaded the submission of a Request for Inquiry under the Optional Protocol to Convention on All Forms of Discrimination against Women (OP CEDAW) in 2008.

She was an International Visiting Legal Fellow at the Center for Reproductive Rights, New York , N.Y. , from July 2002 through July 2003. Her previous consultancies include drafting the very first version of the Reproductive Health Care Bill which was filed as HB 4110 in December 2001 (under consultancy with PLCPD), facilitating discussions on gender equality and CEDAW for the justices of the Philippine courts and trainings on sexual harassment for members of the committee on decorum and investigation of the Philippine judiciary in 2008 (a project under the European Commission), a comparative study of gender-based violence (GBV) and HIV/AIDS legislation in ASEAN member countries where she developed a model legislation addressing the link between GBV and HIV/AIDS in 2009 (under consultancy with the Philippine Commission on Women), conducting briefings for representatives of Cambodian government agencies and the UN Country Team in Cambodia on the Philippine request for inquiry related to reproductive rights violations and facilitating discussions on communications and inquiries under the Optional Protocol to CEDAW for Cambodian NGOs in 2011 (under consultancy with UN Women), facilitating discussion on international and local mandates on reproductive rights for PRISM2 staff in 2011 (under consultancy with USAID-PRISM2), drafting of briefs on the reproductive health care bill, amendments to the Anti-Trafficking Law and the proposed law prohibiting discrimination in employment advertising based on sex and a speech on the urgency of the passage of the reproductive health bill into law in 2011 (under short-term consultancy for the Office of Senator Miriam Defensor-Santiago), drafting a bill proposing amendments to the Philippine Anti-Rape Law which included the recommendations of the CEDAW Committee in the Karen Tayag Vertido vs. Philippines in 2010 (Communication No. 18/2008; under consultancy with the Philippine Commission on Women), and drafting of the “Country Analysis of the AIDS, Gender and Age Situation and Response in the Philippines” in 2010 (under the EnGendeRights consultancy with UNICEF).

She conducted trainings on gender, gender-based violence, sexual and reproductive rights, sexual orientation and gender identity, laws related to women, and international human rights standards including the following: (a) speaker on the Optional Protocol to CEDAW at the NGO Meeting on Engagement with National Human Rights Institutions (NHRIs), Kuala Lumpur, Malaysia, 27-29 July 2008; (b) speaker in several trainings and meetings related to CEDAW with IWRAW-Asia Pacific particularly on “Human Rights Committee Gender Discrimination Cases” at the Consultation on Realising the Potential of the Optional Protocol: Litigation Strategies on the Claiming of Equality and Non-Discrimination in December 2007 in Nepal and “Advocating for an Optional Protocol to CEDAW” at the Southeast Asia Women’s Human Rights Implementation Meeting in Jakarta in September 2007; (c) speaker on Strategies in “Advocating for the Sexual and Reproductive Health and Rights of Lesbians, Gays, Bisexuals and Transgenders” for 4th Asia Pacific Conference on Reproductive and Sexual Health and Rights held in Hyderabad, India, on October 30, 2007; (d) speaker in April 2006 during the Integrated Bar of the Philippines Eastern Visayas Convention before an audience of more than 700 lawyers and judges on the “Anti-Violence Against Women and Their Children Act of 2004” and “Gender Issues in Legal Ethics”, both of which were credited as Mandatory Continuing Legal Education units; (e) speaker on March 31, 2007 on sexual and reproductive health and rights before an audience of about 1200 lawyers, prosecutors, and judges during the 11th IBP National Convention of Lawyers in Cagayan de Oro. In these trainings, she includes discussions on international human rights standards including CEDAW and CEDAW Committee jurisprudence; (f) guest expert/presenter at the first annual meeting in New York of the Center for Reproductive Rights’ International Litigation Advisory Committee (ILAC) in June 2005; (g) panel presenter/participant in the Equality Now sponsored “International Lawyers’ Meeting: Using the Law to Promote Sex Equality” held in Nairobi, Kenya on June 9-11, 2001 where the other participants/presenters included Judge Navanethem Pillay, then President of the International Criminal Tribunal for Rwanda and the current High Commissioner for Human Rights, as Chair and Professor Catharine MacKinnon as Presenter.

She has always given time to invitations asking her to share her expertise on a rights-based approach to sexual and reproductive rights including the Reproductive Health Care Bill, gender issues, violence against women (VAW), laws related to women including the Magna Carta of Women (RA 9710), Anti-Rape Law (RA 8353, RA 8505), Anti-Sexual Harassment Law (RA 7877), paralegal workshops to effectively address VAW, the Anti-Violence Against Women and their Children Act (Anti-VAWC or RA9262), migration and trafficking (RA 9208), the right to safe and legal abortion, CEDAW and Optional Protocol to CEDAW including jurisprudence, rights of lesbians against discrimination in international law, the mandate and views of the UN Special Rapporteur on Violence against Women, among others.

She wrote ground-breaking articles including: The Abortion Scare versus Human Rights Standards (2010), Reasons Why We Need the RH Law (2010), Primer on the Inquiry Procedure Under the OP CEDAW (2010); A Call for Philippine Implementation of Women’s Rights under CEDAW, 53 Ateneo Law Journal 765-803 (2008); Using CEDAW to Uphold Sexual and Reproductive Health and Rights (2006); Challenging Fundamentalist Catholic Dogma in Philippine Law with Freedom of Conscience and Religion” (2003); Lesbians & Philippine Law (2001; co-written).

She has won two Supreme Court en banc (by the full court) cases. In October 1997, she succeeded in the landmark case of Pioneer Texturizing Corporation vs. National Labor Relations Commission and Lourdes de Jesus (G.R. 118651) where the Supreme Court overturned its previous doctrine laid down in Maranaw vs. NLRC (238 SCRA 190). In the Pioneer case, she successfully argued that illegally dismissed employees should be automatically reinstated at work or in the payroll without need of a writ of execution. In April 2010, she and several other lawyers won their petition for certiorari with the Supreme Court granting the accreditation of of a lesbian, gay, bisexual, transgender (LGBT) party-list organization in the case of Ang Ladlad LGBT Party vs. Commission on Elections Ang Ladlad Party-List (G.R. No. 190582).