Neutrality or Partiality: Deconstructing the Compelling State Interest Test in the Tension Between Religious Liberty and Gender Equality

A review of Philippine jurisprudence on the right to religion underscores the adherence of the Supreme Court to the benevolent neutrality doctrine, which allows religious accommodations in relation to state actions, and the compelling state interest test, which accords religious freedom a “preferred” status within a hierarchy of rights.

This Essay posits that the compelling state interest test elevates the right to religious liberty to a preeminent status. In cases where anti- discrimination legislation addressing diverse Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics (“SOGIESC”) is enacted and faces constitutional challenges for impinging on religious freedom, the right to gender equality carries a disproportionately heavier burden. Both rights, however, are equal, indivisible, and interconnected. Thus, it is argued that a paradigm shift is needed from a perspective of hierarchy to equal treatment of the rights.