A legal philosopher once concluded that law professors were “like a priesthood that had lost their faith and kept their jobs,” who taught the “inherited creed” of “objectivism and formalism,” and then “brazenly advertised their failure as the triumph of worldly wisdom over intellectual and political enthusiasm.”Footnote 1 In the essay “A Christian in the Office of Constitutional Judge,” Ernst-Wolfgang Böckenförde addresses the dilemma of a Constitutional Court judge who sought to honor his secular duties while remaining true to his religious beliefs.Footnote 2 He is a Catholic judge who is sworn to uphold a secular constitution that is neutral to religion and yet confesses to a “spirituality [that] knows no separation between the personal-private and the occupational spheres,” that “integrat[es] all of life in a way of life borne by and reflective of faith” and prescribes a “holistic way of life.”Footnote 3 In the end, I propose, the clash is resolved not so much by asking which of the two prevails, but by redefining the nature of law and of rights, and of the role of courts in advancing substantive values. In what follows, I reflect on Böckenförde’s essay in light of my own work as a former judge and my roots in Philippine constitutional law, which I have taught for more than three decades.
Secularity, Neutrality, and the Judicial Role
In his essay, Böckenförde situates the larger debate about the secular state and religious neutrality within a specific professional role, that of constitutional court judge, with its own ethical rules and substantive norms that govern a realm distinct from that of religion. Therein he actually finds sources of both salvation and anguish. On one hand, the “occupational”Footnote 4 constraint actually eases the burden. The judge, he says, is not “politically formative” as legislators and presidents are. Judging is “not a sphere of activity in which one could act as an agent … advocate [or] representative” of Christian or Catholic causes.Footnote 5 A judge who uses his interpretive powers as “a ‘loophole’ for clandestinely smuggling certain positions into the constitution” exceeds his mandate and thus breaches his own occupational ethics.Footnote 6 On the other hand, Böckenförde locates the difficulty in his own judge’s oath, which, as he said, was “the first and only oath of office I performed with a religious affirmation” and which “mobilizes the internal powers of commitment of someone who swears it consciously.”Footnote 7 In other words, the oath of office, far from insulating the office holder from impermissible nonlegal, religious considerations, anchored his professional duty on the sanctity of a faith-based belief.
When his court was called upon to strike down a law decriminalizing abortion performed in the first trimester of pregnancy, a journalist wrote of Böckenförde that there were “‘three souls’ in his breast: that of the Catholic, of the jurist, and of the Social Democrat.”Footnote 8 Böckenförde himself commented, “The only thing that was relevant to me … was the ‘soul of the judge.’”Footnote 9 He continued: “Anything else, including the option for the Catholic in me, would have amounted in my mind to a violation of my official duty and of the oath of office I had sworn with religious affirmation. The question could and had to be decided solely according to the guarantee in the constitution … independent of the extent to which it is aligned with Christian-ecclesiastical positions or falls short of them.”Footnote 10 That was squarely in accord with his oath—which he chose to affirm by asking for God’s help—to rule solely in accordance with Germany’s Basic Law.
What eased his burden in this caseFootnote 11 was that the court held that life begins at conception or, possibly, at implantation,Footnote 12 but regardless of whether or not the fetus was an independent rights holder, the state had a duty to protect prenatal life, while allowing abortions under certain conditions, based on “medical (e.g., a threat to the life of the mother), criminal (e.g., rape), or social circumstances (e.g., teen pregnancies),” and holding further that an “otherwise illegal first-trimester abortion would still be illegal, but no criminal sanctions would be assessed if it was preceded by counseling.”Footnote 13 While the court apparently did not fully satisfy all “three souls”—and it seems the Catholics were not too pleased—there was in the end no frontal clash among them. Otherwise, it would have put him in a bind. As Böckenförde noted, “According to my personal conviction, which is supported by my faith, an abortion is not only a very terrible thing, it is the killing of a (still unborn) human being … In Christian terms, one can hardly discern a reason that would make an abortion appear permissible and justifiable.”Footnote 14
A similar dilemma confronted a Philippine judge who, for religious reasons, refused to impose the death penalty before it was abolished in 2003, in a case of rape with homicide, where death was the mandatory penalty. The Supreme Court reversed and chastised the judge as follows:
The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty … other than a sentence of death.
We are aware of the trial judge’s misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws.Footnote 15
The Philippine Supreme Court gave absolute primacy to the “soul of the judge” and excluded altogether the claims of the spiritual life, or in Böckenförde’s words, “turn[ed Christian spirituality] into an atrophied entity, in which only fidelity to the office and personal credibility are left.”Footnote 16 In the end, Böckenförde recognized that there are cases in which one’s constitutional and spiritual duties cannot be reconciled and, at that fork in the road, the only option for the Christian judge is “public resignation from the relevant offices.”Footnote 17
Juridical Techniques for Avoidance of Normative Conflicts
But short of the moment of resignation, in the Philippines and other jurisdictions and at certain stages of adjudication, a judge who subscribes to a “holistic” faith has at his disposal techniques of legal analysis with which to reconcile his articles of faith with conflicting constitutional duties. For instance, the power of judicial review in the Philippines enables a judge to avoid normative conflicts by raising threshold issues of jurisdiction and admissibility. It can be asked if the proper parties are available to seek relief from the court,Footnote 18 if the case is “ripe for adjudication”Footnote 19 or whether a less severe procedure is still available, or if the case has been “mooted”Footnote 20 for having been overtaken by events. A court can also apply deferential standards of review rather than heightened scrutiny,Footnote 21 invoke the structural limits of judicial review over legislative or political acts,Footnote 22 or uphold countervailing claims upon the state, for example, the need for military discipline under the president’s commander-in-chief powers.Footnote 23 Significantly, for constitutional courts in general, many of these usual jurisdictional challenges are unavailable because these courts, by design, are created to address broader-gauged legal issues.
Another mode to reconcile normative conflicts is to recognize that simply criminalizing offending acts may not be the most effective way to uphold the norm or, in other words, that one can distinguish between affirming a constitutional norm at the level of principle, and implementing it through effective practical means through legislation. As the court recognized, the “[d]ifferent forms of far-reaching penal protection for unborn life … have not been able to prevent pregnancy termination from becoming and remaining a mass occurrence”Footnote 24 and that, as Böckenförde has elsewhere noted, the enforcement of those penal laws on abortion had been “inconsistent and infrequent.”Footnote 25 Thus the court allowed the constitutional command to protect unborn life to be legislatively implemented through “normative and practical measures” that “necessitates a concept of protection which combines elements of preventative [sic] and repressive protection,”Footnote 26 that is to say, the requirement of counseling and, where the exceptions do not apply, the prospect of penal sanctions. The court stated that the “criminal law is not the primary means of legal protection because of its sharpness,” but it is still the “ultimate measure of protection” against “socially damaging” conduct.Footnote 27 Significantly, the court concluded: “If, however, there are other constitutionally adequate protective measures it is possible, in a limited number of cases, not to punish unjustified pregnancy terminations. In these cases, the legal system’s prohibition can be clearly expressed in other ways which are in keeping with the constitution.”Footnote 28
That Böckenförde joined the court’s “illegal but not criminal” formula indicates that criminalization is not the only way to affirm a norm, and that other, less “sharp” legislative methods are constitutionally valid if they in fact attain the real-world results commanded by the norm.
The Challenge Posed by Liberal Legalism to the Religious Judge
The tensions in the separation of religion and state doctrine emanate from both directions—that is, from transformations in the role of the state and of religion—and they revolve around the principle of liberal legality, which entails more than just legality or the primacy of law in the regulation of social life and in the exercise of collective power, as it further requires “a regime of law that helps to secure liberty” that aims at both the “governance of law in life” and the “control of reason in law.”Footnote 29
The secular state has expanded its reach beyond the original so-called night watchman functions to cover welfare state programs (such as education, housing, health care, and child care) that were hitherto the responsibility of nonstate entities (such as family, village, and social or religious communities). Stated thus, the traditional notion was that the constitution protects the rights of persons only from violations committed by the state and not by nonstate entities, and the role of courts is merely to stop the government from violating such rights. The role of courts is thus curative, rather than preventive or structural. However, religions, including Catholicism, have more actively reached out beyond traditional worship in the temples or churches, toward immersion in communities for social causes and organizing the marginalized and the poor.
In other words, the separation of church and state is strained by the inevitable overlap between the two realms, between God’s and Caesar’s, both of which expand into the same sphere, where the welfare state and apostolic ministry overlap, and where these realms issue conflicting commands, there we find the clash among the competing souls. For instance, the expanded reach of the state can transform the notion of what norms are legally enforceable. Courts can act not only when a rights-violation is invoked, such as when a free exercise or establishment right is violated. This requirement was fully met in the German abortion case, which recognized that the unborn has the right to life under the Basic Law. In the Philippines, however, the anti-abortion clause of the Constitution is contained in its directive principles, which declare that the “State … shall equally protect the life of the mother and the life of the unborn from conception.”Footnote 30 In Philippine penal law, abortion is a crime. Significantly, in a case dealing not with the legalization of abortion but access to contraceptives, including alleged abortifacients, the Philippine Supreme Court indicated that that directive principle gives rise to legally enforceable norms that will suffice to strike down a pro-abortion law, citing the “clear and unequivocal intent” of the drafters “to prevent the Legislature from enacting a measure legalizing abortion.”Footnote 31
The adjudication of abortion cases is also affected by the liberalized rules on standing, that is, who can call upon constitutional courts to act. Standing, strictly construed, requires that the action be brought by the real party in interest, this is, by the actual party who suffers injury-in-fact. Yet who can sue on behalf of the unborn? In this regard, there is a difference between constitutional courts and ordinary courts, the former typically having more latitude to entertain broader normative claims. The mere creation of constitutional courts and granting them such latitude in itself signals a greater willingness by the state to submit these questions to decision according to law. But even with traditional courts, liberalized rules on standing recognize that there are transcendent norms that affect the public at large, and that the injury-in-fact requirement may unduly frustrate recourse to the law-based decision making.
Conclusion
Böckenförde takes the challenge posed to church-state separation by a “holistic” or “comprehensive” religion whose believers carry their faith into all aspects of life, and he situates the debate in the inner sanctum of the liberal state founded on the principle of legality, namely, in the chambers of the constitutional judge who is sworn precisely to honor the secular constitution. He contrasts the constitutional judge to other public officers in the political departments—the legislative and executive—and finds the judge better positioned to be religion-neutral, while also noting that his own judge’s oath ended with a religious affirmation.
As noted above, reflecting on the “‘three souls’ in his breast: that of the Catholic, of the jurist, and of the Social Democrat,” Böckenförde stated, “The only thing that was relevant to me in the entire process was the ‘soul of the judge.’”Footnote 32 In that case, his court arrived at a decision that allowed him to follow his oath as a judge to apply solely the secular tenets of the Basic Law, while remaining true to the teachings of his faith. This is a luxury that might not always be available to judges of conscience at a time when substantive social claims are increasingly codified into constitutions, and contested social issues are brought before the courts to be resolved on the basis of legally enforceable norms and not by counting votes in the ordinary political process.
