Adultery vs. immorality

Gregorio Miguel Pallugna

CAN a man and a woman, both married but not to each other, live together as husband and wife bear a child and not be considered immoral or even criminally liable under Philippine laws? Yes, according to the Supreme Court in 2003. Yes, the Supreme Court again affirmed in 2006.

In the case of Soledad Escritor (A.M. NO. P-02-1651), the Supreme Court was tasked to resolve the question raised above. Soledad was a married woman who had a common law relationship with a married man for twenty years. They cohabited as husband and wife and had an 18-year old child at the time the administrative complaint was filed against her for Immorality in having an adulterous relationship. Soledad admitted the allegations against her but defended herself by claiming that she was a member of the religious sect called Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, and that their common-law relationship was allowed by their religion. In fact, they executed a document called “Declaration of Pledging Faithfulness” which was sanctioned by their church elders.

Normally, under our laws, the act of Soledad and her live-in partner would constitute adultery and concubinage which is punished under the Revised Penal Code. It likewise constitutes immorality which is a ground for administrative sanctions for government employees which Soledad is one. In this case however, the Supreme Court in affirming the “Benevolent Neutrality” theory declared that “the government may take religion into account to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.” The Supreme Court then went on to say that “In the ideal world, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened may turn to the courts for protection.”

This is not the first time that the Supreme Court declared an exemption from a law on the ground of the free exercise of religion. One example is when the Court exempted the American Bible Society from paying taxes for the distribution and sale of Bibles. There are also laws which allow polygamy, such as in Muslim and tribal marriages. What is surprising however, is that this case of Soledad is the first time where a person has been exempted, not by law but by the Court, from liability for having an adulterous relationship.

Effectively, the Court is saying that despite the fact that the acts of Soledad and her partner are considered as immoral, illegal and criminal under our laws an exception will be made when the same is allowed under a legitimate religious order. It said that “in the area of religious exercise as a preferred freedom, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.” Soledad was ultimately exempted from any liability because the state was not able to present any urgent and compelling reason to prevent her from exercising her religious freedom. The preservation of the family which is considered by our Constitution as an inviolable social institution lost to the freedom to exercise religion.

What about Catholics or other religious members who have already acquired decrees of annulment from the Church, can they now live in together and have a child with another man or woman despite having no Court Declaration of nullity or annulment of marriage? With the ruling in Estrada vs. Escritor, and if they can get a certification from their Church allowing it, I would say anybody has a fair chance of getting away with it. Basically, what the Supreme Court said is that if God allows you, you can have your cake and eat it too!

(Gregorio Miguel Pallugna is a lawyer based in Cagayan de Oro.)