Week 3

Section 11. Personal Dignity and Human Rights

Section 12. Family Life; Mother; Unborn

Roe v. Wade, 410 U.S. 113 (1973)

PRIMARY HOLDING
A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy
contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live
outside the womb, which usually happens between 24 and 28 weeks after conception.
FACTS
The law in Texas permitted abortion only in cases where the procedure was necessary to save the life of
the mother. When Dallas resident Norma McCorvey found out that she was pregnant with her third
child, she tried to falsely claim that she had been raped and then to obtain an illegal abortion. Both of
these efforts failed, and she sought the assistance of Linda Coffee and Sarah Weddington, who filed a
claim using the alias Jane Roe for McCorvey. (The other named party, Henry Wade, was the District
Attorney for Dallas County.) McCorvey gave birth to her child before the case was decided, but the
district court ruled in her favor based on a concurrence in the 1965 Supreme Court decision of Griswold
v. Connecticut, written by Justice Arthur Goldberg. This concurrence had found that there was a right to
privacy based on the Ninth Amendment of the Constitution. However, the district court refrained from
issuing an injunction to prevent the state from enforcing the law, leaving the matter unresolved.
Issue: Whether a plaintiff still has standing to bring a case based on her pregnancy once she has given
birth.
Holding: Yes. The mootness doctrine does not bar her case from being heard, even though this individual
plaintiff's position would no longer be affected, and she did not have an actual case or controversy. This
situation fits within the exception to the mootness rule that covers wrongs that are capable of repetition
yet evading review. Most cases are not heard through to appeal in a period shorter than a pregnancy, so
strictly applying the mootness doctrine would prevent these issues from ever being resolved.
OPINIONS: The majority found that strict scrutiny was appropriate when reviewing restrictions on
abortion, since it is part of the fundamental right of privacy. Blackmun was uninterested in identifying
the exact part of the Constitution where the right of privacy can be found, although he noted that the
Court had previously located it in the Fourteenth rather than the Ninth Amendment. The opinion applied
a controversial trimester framework to guide judges and lawmakers in balancing the mother's health
against the viability of the fetus in any given situation. In the first trimester, the woman has the exclusive
right to pursue an abortion, not subject to any state intervention. In the second trimester, the state
cannot intervene unless her health is at risk. If the fetus becomes viable, once the pregnancy has
progressed into the third trimester, the state may restrict the right to an abortion but must always
include an exception to any regulation that protects the health of the mother. The Court, which included
no female Justices at the time, appears to have been confused about the differences between the
trimester framework and viability, which are not necessarily interchangeable. It is interesting to note that
Blackmun was particularly invested in this case and the opinion, since he had worked at the Mayo Clinic
in Minnesota during the 1950s and researched the history of abortions there. This may explain why he
framed the opinion largely in terms of protecting the right of physicians to practice medicine without
state interference (e.g., by counseling women on whether to pursue abortions) rather than the right of
women to bodily autonomy.
CASE COMMENTARY: The Court was praised in many circles for its progressive attitude toward evolving
social trends, even though the decision was framed in paternalistic language and seemed more focused
on protecting physicians than women. However, many commentators have viewed its decision as a prime
example of judicial "activism," a term that refers to when the Court is seen to infringe on the authority of
other branches of government.. A magnet for controversy to the current day, Roe has been challenged
consistently and lacks support from many current members of the Court. The trimester framework
proved less workable than the majority had hoped, and decisions such as Planned Parenthood v. Casey
have eroded what initially seemed like a sweeping statement in favor of women's rights. Many states
that oppose Roe have enacted laws that will go into effect in the event that it is overturned.

Syllabus
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas
criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice
for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion
prosecutions pending against him, was permitted to intervene. A childless married couple (the Does),
the wife not being pregnant, separately attacked the laws, basing alleged injury on the future
possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the
wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford,
and members of their classes, had standing to sue and presented justiciable controversies. Ruling that
declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as
vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court
ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive
rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and
Hallford.

Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of
declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal
from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are
necessarily identical. P. 123.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit.
Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the
usual federal rule that an actual controversy must exist at review stages, and not simply when the action
is initiated. Pp. 124-125.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford,
who alleged no federally protected right not assertable as a defense against the good faith state
prosecutions pending against him. Samuels v. Mackell, 401 U. S. 66. Pp. 125-127.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too
speculative to present an actual case or controversy. Pp. 127-129.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving
procedure on the mother's behalf without regard to the stage of her pregnancy and other interests
involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state
action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the
State cannot override that right, it has legitimate interests in protecting both the pregnant woman's
health and the potentiality of human life, each of which interests grows and reaches a "compelling"
point at various stages of the woman's approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163,
164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are
reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human
life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

4. The State may define the term "physician" to mean only a physician currently licensed by the State,
and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully
recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. P. 166.

314 F. Supp. 1217, affirmed in part and reversed in part.

Meyer v. Nebraska, 262 U.S. 390 (1923)

Brief Fact Summary. Plaintiff was convicted for teaching a child German under a Nebraska statute that
outlawed the teaching of foreign languages to students that had not yet completed the eighth grade.
Synopsis of Rule of Law. The Fourteenth Amendment prohibits states from creating legislation that
restricts liberty interests when the legislation is not reasonably related to an acceptable state objective.
Facts. Plaintiff was convicted for teaching a child German under a Nebraska statute that outlawed the
teaching of foreign languages to students that had not yet completed the eighth grade. The Supreme
Court of Nebraska upheld the conviction.
Issue. Does the statute as construed and applied unreasonably infringe on the liberty guaranteed by the
Fourteenth Amendment?
Held. The statute as applied is unconstitutional because it infringes on the liberty interests of the
plaintiff and fails to reasonably relate to any end within the competency of the state.

The Fourteenth Amendment encompasses more than merely the freedom from bodily restraint. The
state argues that the purpose of the statute is to encourage the English language to be the native tongue
of all children raised in the state. Nonetheless, the protection of the Constitution extends to those who
speak other languages. Education is a fundamental liberty interest that must be protected, and mere
knowledge of the German language cannot be reasonably regarded as harmful.

Discussion. Liberty interests may not be interfered with by the states when the interference is arbitrary
and not reasonably related to a purpose which the state may permissively regulate.

Syllabus

A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public
school, of any modern language, other than English, to any child who has not attained and
successfully passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and
exceeds the power of the State. P. 262 U. S. 399.

So held where the statute was applied in punishment of an instructor who taught reading in German, to
a child of ten years, in a parochial school.

107 Neb. 657, reversed.

ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a statute
against teaching of foreign languages to young children in schools.

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an
information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he
unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten
years, who had not attained and successfully passed the eighth grade. The information is based upon
"An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919,
which follows [Laws 1919, c. 249.]:

"Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or

public school, teach any subject to any person in any language other than the English language."
"Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall
have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued
by the county superintendent of the county in which the child resides."

"Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a
misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25),
nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding
thirty days for each offense."

"Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval."

The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the
offense charged and established was "the direct and intentional teaching of the German language as a
distinct subject to a child who had not passed the eighth grade," in the parochial school maintained by
Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it held
that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid exercise
of the police power. The following excerpts from the opinion sufficiently indicate the reasons advanced
to support the conclusion.

"The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting
foreigners, who had taken residence in this country, to rear and educate their children in the language of
their native land. The result of that condition was found to be inimical to our own safety. To allow the
children of foreigners, who had emigrated here, to be taught from early childhood the language of the
country of their parents was to rear them with that language as their mother tongue. It was to educate
them so that they must always think in that language, and, as a consequence, naturally inculcate in them
the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was
intended not only to require that the education of all children be conducted in the English language, but
that, until they had grown into that language and until it had become a part of them, they should not in
the schools be taught any other language. The obvious purpose of this statute was that the English
language should be and become the mother tongue of all children reared in this state. The enactment of
such a statute comes reasonably within the police power of the state. Pohl v. State, 132 N.E. (Ohio)
20; State v. Bartels, 181 N.W. (Ia.) 508."

"It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state and
arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them,
without reason, from having their children taught foreign languages in school. That argument is not well
taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a child is
able to devote to study in the confinement of school are limited. It must have ample time for exercise or
play. Its daily capacity for learning is comparatively small. A selection of subjects for its education,
therefore, from among the many that might be taught, is obviously necessary. The legislature no doubt
had in mind the practical operation of the law. The law affects few citizens, except those of foreign
lineage.

Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of
importance to teach their children foreign languages before such children have reached the eighth
grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction upon
the citizens generally, which, it appears, was a restriction of no real consequence."

The problem for our determination is whether the statute, as construed and applied, unreasonably
infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . .
. deprive any person of life, liberty, or property, without due process of law."

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has
received much consideration and some of the included things have been definitely stated. Without
doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit
of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City
Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313; Allgeyer v.
Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago,
Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244
U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v.
Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established
doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest,
by legislative action which is arbitrary or without reasonable relation to some purpose within the
competency of the State to effect. Determination by the legislature of what constitutes proper exercise
of police power is not final or conclusive, but is subject to supervision by the courts. Lawton v.
Steele, 152 U. S. 133, 152 U. S. 137.

The American people have always regarded education and acquisition of knowledge as matters of
supreme importance which should be diligently promoted. The Ordinance of 1787 declares,

"Religion, morality, and knowledge being necessary to good government and the happiness of mankind,
schools and the means of education shall forever be encouraged."

Corresponding to the right of control, it is the natural duty of the parent to give his children education
suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by
compulsory laws.

Practically, education of the young is only possible in schools conducted by especially qualified persons
who devote themselves thereto. The calling always has been regarded as useful and honorable,
essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be
regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in
error taught this language in school as part of his occupation. His right thus to teach and the right of
parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.

The challenged statute forbids the teaching in school of any subject except in English; also the teaching
of any other language until the pupil has attained and successfully passed the eighth grade, which is not
usually accomplished before the age of twelve. The Supreme Court of the State has held that "the
so-called ancient or dead languages" are not "within the spirit or the purpose of the act." Nebraska
District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not
proscribed; but German, French, Spanish, Italian and every other alien speech are within the ban.
Evidently the legislature has attempted materially to interfere with the calling of modern language
teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to
control the education of their own.

It is said the purpose of the legislation was to promote civic development by inhibiting training and
education of the immature in foreign tongues and ideals before they could learn English and acquire
American ideals, and "that the English language should be and become the mother tongue of all children
reared in this State." It is also affirmed that the foreign born population is very large, that certain
communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and
that the children are thereby hindered from becoming citizens of the most useful type, and the public
safety is imperiled.

That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically,
mentally and morally, is clear; but the individual has certain fundamental rights which must be
respected. The protection of the Constitution extends to all, to those who speak other languages as well
as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready
understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the
Constitution -- a desirable end cannot be promoted by prohibited means.

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:

"That the wives of our guardians are to be common, and their children are to be common, and no parent
is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the
good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a
separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed,
will be put away in some mysterious, unknown place, as they should be."

In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into
barracks and intrusted their subsequent education and training to official guardians. Although such
measures have been deliberately approved by men of great genius, their ideas touching the relation
between individual and State were wholly different from those upon which our institutions rest, and it
hardly will be affirmed that any legislature could impose such restrictions upon the people of a State
without doing violence to both letter and spirit of the Constitution.

The desire of the legislature to foster a homogeneous people with American ideals prepared readily to
understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the
late war and aversion toward every characteristic of truculent adversaries were certainly enough to
quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the
State and conflict with rights assured to plaintiff in error. The interference is plain enough, and no
adequate reason therefor in time of peace and domestic tranquility has been shown.

The power of the State to compel attendance at some school and to make reasonable regulations for all
schools, including a requirement that they shall give instructions in English, is not questioned. Nor has
challenge been made of the State's power to prescribe a curriculum for institutions which it supports.
Those matters are not within the present controversy. Our concern is with the prohibition approved by
the Supreme Court. Adams v. Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse incident to an
occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely
proper. No emergency has arisen which renders knowledge by a child of some language other than
English so clearly harmful as to justify its inhibition with the consequent infringement of rights long
freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without
reasonable relation to any end within the competency of the State.

As the statute undertakes to interfere only with teaching which involves a modern language, leaving
complete freedom as to other matters, there seems no adequate foundation for the suggestion that the
purpose was to protect the child's health by limiting his mental activities. It is well known that
proficiency in a foreign language seldom comes to one not instructed at an early age, and experience
shows that this is not injurious to the health, morals or understanding of the ordinary child.

The judgment of the court below must be reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Brief Fact Summary.
Appellees, two non-public schools, were protected by a preliminary restraining order prohibiting
appellants from enforcing an Oregon Act that required parents and guardians to send their children to
public school. Appellants appealed the order.
Synopsis of Rule of Law.
The 14th Amendment provides a liberty interest in a parent’s or guardian’s right to decide the mode in
which their children are educated. State’s may not usurp this right when the questioned legislation does
not reasonably relate to a viable state interest.

Facts. Appellee the Society of Sisters, a corporation with the power to establish and maintain academies
or schools and Appellee Hill Military Academy, a private organization conducting an elementary, college
preparatory, and military training school, obtained preliminary restraining orders prohibiting appellants
from enforcing Oregon’s Compulsory Education Act. The Act required all parents and guardians to send
children between 8 and 16 years to a public school. The appellants appealed the granting of the
preliminary restraining orders.
Issue. Does the Act unreasonably interfere with the liberty of parents and guardians to direct the
upbringing and education of children under their control?
Held. The Act violates the 14th Amendment because it interferes with protected liberty interests and has
no reasonable relationship to any purpose within the competency of the state.
The Appellees have standing because the result of enforcing the Act would be destruction of the
appellees’ schools. The state has the power to regulate all schools, but parents and guardians have the
right and duty to choose the appropriate preparation for their children.

Discussion.
While the state has the right to insure that children receive a proper education, the 14th Amendment
provides parents and guardians with a liberty interest in their choice in the mode in which their children
are educated.

(FULL CASE)
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders
restraining appellants from threatening or attempting to enforce the Compulsory Education
Act * adopted November 7, 1922, under the initiative provision of her Constitution by the voters of
Oregon. Jud.Code, § 266. They present the same points of law; there are no controverted questions of
fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate
prayers asked for their protection.

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having
control or charge or custody of a child between eight and sixteen years to send him "to a public school
for the period of time a public school shall be held during the current year" in the district where the child
resides, and failure so to do is declared a misdemeanor. There are exemptions not specially important
here -- for children who are not normal, or who have completed he eighth grade, or who reside at
considerable distances from any public school, or whose parents or guardians hold special permits from
the County Superintendent. The manifest purpose is to compel general attendance at public schools by
normal children, between eight and sixteen, who have not completed the eighth grade. And without
doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of
appellees' business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for
orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire
necessary real and personal property. It has long devoted its property and effort to the secular and
religious education and care of children, and has acquired the valuable good will of many parents and
guardians. It conducts interdependent primary and high schools and junior colleges, and maintains
orphanages for the custody and control of children between eight and sixteen. In its primary schools,
many children between those ages are taught the subjects usually pursued in Oregon public schools
during the first eight years. Systematic religious instruction and moral training according to the tenets of
the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious,
contemplate continuity of training under appellee's charge; the primary schools are essential to the
system and the most profitable. It owns valuable buildings, especially constructed and equipped for
school purposes. The business is remunerative -- the annual income from primary schools exceeds thirty
thousand dollars -- and the successful conduct of this requires long-time contracts with teachers and
parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of
children who would otherwise continue, and their income has steadily declined. The appellants, public
officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of
parents to choose schools where their children will receive appropriate mental and religious training, the
right of the child to influence the parents' choice of a school, the right of schools and teachers therein to
engage in a useful business or profession, and is accordingly repugnant to the Constitution and void.
And, further, that, unless enforcement of the measure is enjoined the corporation's business and
property will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon,
engaged in owning, operating and conducting for profit an elementary, college preparatory and military
training school for boys between the ages of five and twenty-one years. The average attendance is one
hundred, and the annual fees received for each student amount to some eight hundred dollars. The
elementary department is divided into eight grades, as in the public schools; the college preparatory
department has four grades, similar to those of the public high schools; the courses of study conform to
the requirements of the State Board of Education. Military instruction and training are also given, under
the supervision of an Army officer. It owns considerable real and personal property, some useful only for
school purposes. The business and incident good will are very valuable. In order to conduct its affairs,
long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers
of the State and County, have publicly announced that the Act of November 7, 1922, is valid, and have
declared their intention to enforce it. By reason of the statute and threat of enforcement, appellee's
business is being destroyed and its property depreciated; parents and guardians are refusing to make
contracts for the future instruction of their sons, and some are being withdrawn.
The Academy's bill states the foregoing facts and then alleges that the challenged Act contravenes the
corporation's rights guaranteed by the Fourteenth Amendment and that, unless appellants are
restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The
prayer is for an appropriate injunction.

No answer was interposed in either cause, and, after proper notices, they were heard by three judges
(Jud.Code § 266) on motions for preliminary injunctions upon the specifically alleged facts. The court
ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property
without due process of law consequent upon the unlawful interference by appellants with the free
choice of patrons, present and prospective. It declared the right to conduct schools was property, and
that parents and guardians, as a part of their liberty, might direct the education of children by selecting
reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that
enforcement of the challenged statute would unlawfully deprive them of patronage, and thereby destroy
their owners' business and property. Finally, that the threats to enforce the Act would continue to cause
irreparable injury, and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect,
supervise and examine them, their teachers and pupils; to require that all children of proper age attend
some school, that teachers shall be of good moral character and patriotic disposition, that certain studies
plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly
inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of
appellees' primary schools, and perhaps all other private primary schools for normal children within the
State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long
regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they
have failed to discharge their obligations to patrons, students or the State. And there are no peculiar
circumstances or present emergencies which demand extraordinary measures relative to primary
education.

Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922
unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education
of children under their control: as often heretofore pointed out, rights guaranteed by the Constitution
may not be abridged by legislation which has no reasonable relation to some purpose within the
competency of the State. The fundamental theory of liberty upon which all governments in this Union
repose excludes any general power of the State to standardize its children by forcing them to accept
instruction from public teachers only. The child is not the mere creature of the State; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for
additional obligations.

Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which
the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Life
Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Association v. Greenberg, 204 U. S. 359, 204
U. S. 363. But they have business and property for which they claim protection. These are threatened
with destruction through the unwarranted compulsion which appellants are exercising over present and
prospective patrons of their schools. And this court has gone very far to protect against loss threatened
by such action. Truax v. Raich, 239 U. S. 33; Truax v. Corrigan, 257 U. S. 312; Terrace v. Thompson, 263 U.
S. 197.

The courts of the State have not construed the Act, and we must determine its meaning for ourselves.
Evidently it was expected to have general application, and cannot be construed as though merely
intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211 U. S.
45. No argument in favor of such view has been advanced.

Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in
possible customers as to enable him to restrain exercise of proper power of the State upon the ground
that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any
proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with
their patrons and the consequent destruction of their business and property. Their interest is clear and
immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson,
supra, and many other cases where injunctions have issued to protect business enterprises against
interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S.
229; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City Central
Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404; Truax v. Corrigan, supra, and
cases there cited.

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in
the remote future. If no relief had been possible prior to the effective date of the Act, the injury would
have become irreparable. Prevention of impending injury by unlawful action is a well recognized function
of courts of equity. The decrees below are Affirmed.
*
"Be it Enacted by the People of the State of Oregon:"

"Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as
follows:"

"Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent, guardian or other person
in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and
of the age of eight years or over at the commencement of a term of public school of the district in which
said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of
time a public school shall be held during the current year in said district, shall be guilty of a
misdemeanor and each day's failure to send such child to a public school shall constitute a separate
offense; provided, that, in the following cases, children shall not be required to attend public schools:"

"(a) Children Physically Unable -- Any child who is abnormal, subnormal or physically unable to attend
school."

"(b) Children Who Have Completed the Eighth Grade -- Any child who has completed the eighth grade, in
accordance with the provisions of the state course of study."

"(c) Distance from school -- Children between the ages of eight and ten years, inclusive, whose place of
residence is more than one and one-half miles, and children over ten years of age whose place of
residence is more than three miles, by the nearest traveled road, from public school; provided, however,
that, if transportation to and from school is furnished by the school district, this exemption shall not
apply."

"(d) Private Instruction -- Any child who is being taught for a like period of time by the parent or private
teacher such subjects as are usually taught in the first eight years in the public school; but before such
child can be taught by a parent or a private teacher, such parent or private teacher must receive written
permission from the county superintendent, and such permission shall not extend longer than the end of
the current school year. Such child must report to the county school superintendent or some person
designated by him at least once every three months and take an examination in the work covered. If,
after such examination, the county superintendent shall determine that such child is not being properly
taught, then the county superintendent shall order the parent, guardian or other person, to send such
child to the public school the remainder of the school year."

"If any parent, guardian or other person having control or charge or custody of any child between the
ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty of
a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than
$100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such
fine and imprisonment in the discretion of the court."

"This Act shall take effect and be and remain in force from and after the first day of September, 1926."

Wisconsin v. Yoder, 402 U.S. 994 (1972)

Brief Fact Summary.
Several Amish families appealed a decision convicting them of failing to send their children to school
until the age of 16 based upon Freedom of Religion under the constitution.
Synopsis of Rule of Law.
The law compelling parents to send their children to public school until the age of 16 is unconstitutional
as applied because it impermissibly interferes with the Amish religious beliefs.

Facts. Respondents Jonas Yoder, Wallace Miller, and Adin Yutzy are members of the Amish religion.
Wisconsin’s compulsory school-attendance law required them to cause their children to attend public or
private school until they reach 16. Respondents declined to send their children to public school after
completion of the eighth grade. Respondents were convicted of violating the law and fined $5 each.
Issue. Did the application of the compulsory attendance law violate respondent’s rights under the First
and Fourteenth Amendments to the United States Constitution?
Held. The application of the law is unconstitutional as applied to the Amish.
The Amish object to the high school education because the values taught there are in marked variance
from the Amish values and way of life. It places Amish children in an environment hostile to their beliefs
and takes them away from their community during a crucial period in their life. The Amish do not object
to elementary education. Expert Dr. Hostetler testified that the compulsory attendance could result in
not only great psychological harm to Amish children but ultimately the destruction of the Old Order
Amish church community.
The State has the power to impose reasonable regulations for the control and duration of basic
education. Previous precedent has held that this power must yield to the right of parents to provide an
equivalent education in a privately operated system. The State’s power is subject to a balancing test
when it impinges on fundamental rights such as those protected by the Free Exercise Clause of the First
Amendment and the traditional interest of parents with respect to the religious upbringing of their
children.

In order for Wisconsin to compel such attendance, it must follow that either the State does not deny the
free exercise of religious belief by its requirement or that there is a state interest of sufficient magnitude
to override the interest claiming protection under the Free Exercise Clause. This Court determines that
the Amish objection to the attendance is rooted in religious beliefs that directly conflict with the
compulsory school attendance law.
The State advances two arguments. First, it notes that some degree of education is necessary to prepare
citizens to participate effectively and intelligently in our open political system. Second, education
prepares individuals to be self-reliant and self-sufficient participants in society. We accept these
propositions. However, the evidence adduced shows that an additional one or two years of formal high
school would do little to serve those interests. Such education may be necessary for preparation for the
modern society in which we live, but is not for the separated agrarian community of the Amish faith.

The State attacks respondents’ position as fostering ignorance from which children must be protected by
the State. However, the record shows that the Amish community has been a highly successful social unit
within our society, producing productive and law-abiding citizens. The State also supports its position on
the possibility that some children will choose to leave the Amish community. This argument is highly
speculative on the record, and the practical agricultural training and habits of industry would support
children that did choose to leave.

The requirement for compulsory high school education is a fairly recent development, designed to not
only provide educational opportunities, but also to avoid child labor or forced idleness. In these terms,
Wisconsin’s interest in compelling school attendance is less substantial for Amish children than for
children generally.

The State finally argues that exempting the Amish children fails to recognize the children’s substantive
right to a secondary education, giving due regard to the power of the State as parens patriae. On this
record there is no need to decide an issue in which the Amish parent’s are preventing children who wish
to further their education from attending school.

Dissent. The majority assumes that the interests at stake are only those of the parents and the State. The
children also have a legitimate interest in their education. The inevitable effect of the decision is to
impose the parents’ notions of religious duty upon their children. It is the future of the student, not the
parents, that is imperiled by today’s decision. The views of the two children in question were not
canvassed, and should be on remand.

Discussion. The majority’s decision did not determine that the statute would violate Constitutional rights
if the children wanted to pursue further education, but found that such a decision was unnecessary
because no such claim was made on the record. The dissent suggested that the cause should be
remanded to determine the desire of the children.

Ginsberg v. New York, 390 US 629 (1968)

FACTS: Sam Ginsberg was the owner of “Sam’s Stationery and Luncheonette”, where he had a lunch
counter that sold “girlie” magazines. A sixteen-year-old boy went to the store to purchase copies, which
he was told to do so by his parents to lead to Ginsberg’s prosecution. About a week later, the police then
asked him to return to the store, where Ginsberg sold the same boy copies of the magazines that
contained nude material and explicit verbal descriptions. He was convicted of violating Section 484-h of
New York’s Penal Law, which prohibited the sales to people under the age of seventeen of 1) pictures of
nudity or sexual conduct or 2) literature containing narrative accounts or sexual excitement, if these
materials were “harmful to minors”.

PROCEDURAL HISTORY: Ginsberg appeared before a judge without a jury in Nassau County District
Court, where he was found guilty on two counts of violating Section 484-h of New York’s Penal Code. On
appeal, the Second Department of the New York Supreme Court affirmed his conviction.

LEGAL ISSUE: 1. Was Section 484-h of New York’s Penal Law unconstitutional with respect to the
Fourteenth Amendment?
2. Did Section 484-h of New York’s Penal Law violate the First and Fourteenth Amendment?

HOLDING: 1. No. 2. No
RATIONALE: In a 6-3 decision, the Court ruled that Section 484-h of New York’s Penal Law did not violate
the First and Fourteenth Amendments as a restriction on one’s expression. As demonstrated in prior
cases, Justice Brennan wrote that obscenity was not protected by the First Amendment in relation to
speech or press. He also acknowledged that the material was not obscene for adults, however, Section
484-h did not deal with adults – it was concerned with minors.
DISSENT/CONCUR: Justice Stewart concurred, as he argued that the government regulation could
extend to instances where the person who is purchasing the material lacked the capacity to make a
choice. Justices Douglas and Black dissented, and they acknowledged that the act was not a violation of
due process, however, they disagreed that obscene material was excluded from First Amendment
protection. Lastly, Justice Fortas dissented, as he argued that the majority failed to define obscenity for
the purposes of censorship of material sold to minors.

EVALUATION: The majority opinion for this case is certainly correct. The law prohibited the sales to
people under the age of seventeen of pictures of nudity/sexual conduct or literature containing narrative
accounts or sexual excitement, and Ginsberg completely broke this law by outright selling the previously
described material to a sixteen year-old boy.

JAMES M. IMBONG v. PAQUITO N. OCHOA, GR No. 204819, 2014-04-08

Facts:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to... believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good."
GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its
declared policy against abortion, the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and... injectables which are abortives, in violation of
Section 12, Article II of the Constitution which guarantees protection of both the life of the mother and
the life of the unborn from conception.

The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to
one's health, as it causes cancer and other... health problems

The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement
of contraceptives. For the petitioners, the use of... public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring religious freedom... they
argue that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state
interest test" to justify the regulation of the right to free exercise... of religion and the right to free
speech

The RH Law violates the constitutional provision on involuntary servitude and subjects medical
practitioners to involuntary servitude because, to be accredited under the PhilHealth program, they are
compelled to... provide forty-eight (48) hours of pro bono services for indigent women, under threat of
criminal prosecution, imprisonment and other forms of punishment

The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes
contraceptive use

The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. It is
claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of spouses
to mutually decide on matters pertaining to the overall well-being of their... family. In the same breath, it
is also claimed that the parents of a child who has suffered a miscarriage are deprived of parental
authority to determine whether their child should use contraceptives.
Issues: Whether the Court may exercise its power of judicial review over the controversy.
Whether the RH law is unconstitutional

Ruling:
Actual Case or Controversy
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for
judicial determination. Considering that the RH Law and its implementing rules have already taken effect
and that budgetary measures to carry out the law have... already been passed, it is evident that the
subject petitions present a justiciable controversy.
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations thereof,
particularly public health officers who are threatened to be dismissed from... the service with forfeiture
of retirement and other benefits. They must, at least, be heard on the matter NOW.
Locus Standi
After all, the RH Law drastically affects the constitutional provisions on the right to life and... health, the
freedom of religion and expression and other constitutional rights.
the Court entertains no... doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication.
the Court need not wait for a life to be taken... away before taking action.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades
the entire RH Law. It is, in fact, the central idea of the RH Law.[126] Indeed, remove the provisions that
refer to contraception or are related to it and... the RH Law loses its very foundation
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health"
and "responsible parenthood" are interrelated and germane to the overriding objective to control the
population growth.
It is a universally accepted principle that every human being enjoys the right to life.[137] Even if not
formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular... law, custom, or belief. It precedes and transcends any
authority or the laws of men.
Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from... the moment of fertilization.
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code,
which penalizes the destruction or expulsion of the fertilized ovum.
the RH Law is consistent in prohibiting abortifacients... the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a bounden
duty to protect it
2-The Right to Health
Thus, the Court agrees with the... observation of respondent Lagman that the effectivity of the RH Law
will not lead to the unmitigated proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require the prescription of a licensed physician.
With
R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that only contraceptives
that are safe are made available to the public.
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare
services, methods, devices, and supplies.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country.
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures.
Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL

Principles:
a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the
validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment.
The traditional meaning of the word "conception" which, as described and defined by all reliable and
reputable sources, means that life begins at fertilization.
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she
could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life
of the unborn from conception, that the State must protect equally with the life of the mother.

Orceo v. COMELEC, GR 190779 March 26, 2010

This is a petition for certiorari1 questioning the validity of Resolution No. 8714 insofar as it provides that
the term "firearm" includes airsoft guns and their replicas/imitations, which results in their coverage by
the gun ban during the election period this year.
Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of
Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the Services of
Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and Local
Elections. The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16,
2009, and took effect on December 25, 2009.
Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear
Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled
An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for Other Purposes.
Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or
transporting firearms or other deadly weapons in public places, including all public buildings, streets,
parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during
the election period.
Under Section 2 (b) of Resolution No. 8714, the term "firearm" includes "airgun, airsoft guns, and their
replica/imitation in whatever form that can cause an ordinary person to believe that they are real."
Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election period
from January 10, 2010 to June 9, 2010.
Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the year
2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct
injury or make him liable for an election offense2 if caught in possession of an airsoft gun and its
replica/imitation in going to and from the game site and playing the sport during the election period.
Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of
jurisdiction in including "airsoft guns and their replicas/imitations" in the definition of "firearm" in
Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions "airsoft guns and their
replicas/imitations." He asserts that the intendment of R.A. No. 7166 is that the term "firearm" refers to
real firearm in its common and ordinary usage. In support of this assertion, he cites the Senate
deliberation on the bill,3 which later became R.A. No. 7166, where it was clarified that an unauthorized
person caught carrying a firearm during the election period is guilty of an election offense under Section
261 (q) of the Omnibus Election Code.
Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns in the
definition of "firearm," Resolution No. 8714, in effect, criminalizes the sport, since the possession of an
airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs
the use thereof.
Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714 insofar as
it includes airsoft guns and their replicas/imitations within the meaning of "firearm," and declaring the
Resolution as invalid; (2) ordering the COMELEC to desist from further implementing Resolution No.
8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the COMELEC to
amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the meaning of
"firearm"; and (4) ordering the COMELEC to issue a Resolution directing the Armed Forces of the
Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC
to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations
are concerned.
The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and
their replicas/imitations in the term "firearm" in Section 2 (b) of R.A. No. 8714.
The Court finds that the COMELEC did not commit grave abuse of discretion in this case.
R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes)4 provides:
SEC. 32. Who May Bear Firearms. − During the election period, no person shall bear, carry or transport
firearms or other deadly weapons in public places, including any building, street, park, private vehicle or
public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the
Commission. The issuance of firearms licenses shall be suspended during the election period.
Only regular members or officers of the Philippine National Police, the Armed Forces of the Philippines
and other law enforcement agencies of the Government who are duly deputized in writing by the
Commission for election duty may be authorized to carry and possess firearms during the election
period: Provided, That, when in the possession of firearms, the deputized law enforcement officer must
be: (a) in full uniform showing clearly and legibly his name, rank and serial number, which shall remain
visible at all times; and (b) in the actual performance of his election duty in the specific area designated
by the Commission.
xxxx
SEC. 35. Rules and Regulations. — The Commission shall issue rules and regulations to implement this
Act. Said rules shall be published in at least two (2) national newspapers of general circulation.
Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714, which contains
the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent portion of
the Resolution states:
NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the Republic of the
Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436, 9189,
9369 and other elections laws, the Commission RESOLVED, as it hereby RESOLVES, to promulgate the
following rules and regulations to implement Sections 32 and 33 of Republic Act No. 7166 in connection
with the conduct of the May 10, 2010 national and local elections:
SECTION 1. General Guiding Principles. – During the election period: (a) no person shall bear, carry or
transport firearms or other deadly weapons in public places, including all public buildings, streets, parks,
and private vehicles or public conveyances, even if licensed to possess or carry the same; and (b) no
candidate for public office, including incumbent public officers seeking election to any public office, shall
employ, avail himself of or engage the services of security personnel or bodyguards, whether or not such
bodyguards are regular members or officers of the Philippine National Police (PNP), the Armed Forces of
the Philippines (AFP) or other law enforcement agency of the Government.
The transport of firearms of those who are engaged in the manufacture, importation, exportation,
purchase, sale of firearms, explosives and their spare parts or those involving the transportation of
firearms, explosives and their spare parts, may, with prior notice to the Commission, be authorized by
the Director General of the PNP provided that the firearms, explosives and their spare parts are
immediately transported to the Firearms and Explosives Division, CSG, PNP.
SEC. 2. Definition of Terms. – As used in this Resolution:
(a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July
2009 which is from 10 January 2010 to 09 June 2010;
(b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term
also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary
person to believe that they are real;
(c) Deadly weapon includes bladed instrument, handgrenades or other explosives, except pyrotechnics.
xxxx
SEC. 4. Who May Bear Firearms. − Only the following persons who are in the regular plantilla of the PNP
or AFP or other law enforcement agencies are authorized to bear, carry or transport firearms or other
deadly weapons during the election period:
(a) Regular member or officer of the PNP, the AFP and other law enforcement agencies of the
Government, provided that when in the possession of firearm, he is: (1) in the regular plantilla of the
said agencies and is receiving regular compensation for the services rendered in said agencies; and (2) in
the agency-prescribed uniform showing clearly and legibly his name, rank and serial number or, in case
rank and serial number are inapplicable, his agency-issued identification card showing clearly his name
and position, which identification card shall remain visible at all times; (3) duly licensed to possess
firearm and to carry the same outside of residence by means of a valid mission order or letter order; and
(4) in the actual performance of official law enforcement duty, or in going to or returning from his
residence/barracks or official station.
xxxx
(b) Member of privately owned or operated security, investigative, protective or intelligence agencies
duly authorized by the PNP, provided that when in the possession of firearm, he is: (1) in the
agency-prescribed uniform with his agency-issued identification card prominently displayed and visible
at all times, showing clearly his name and position; and (2) in the actual performance of duty at his
specified place/area of duty.
xxxx
SEC. 8. Enforcement. – Any person who, not wearing the authorized uniform mentioned herein, bears,
carries or transports firearm or other deadly weapon, shall be presumed unauthorized to carry firearms
and subject to arrest.5
Petitioner contends that under R.A. No. 7166, the term "firearm" connotes real firearm. Moreover, R.A.
No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules and
regulations contained in Resolution No. 8714 should not include airsoft guns and their
replicas/imitations in the definition of the term "firearm."
The Court is not persuaded.
Holy Spirit Homeowners Association, Inc. v. Defensor6 held:
Where a rule or regulation has a provision not expressly stated or contained in the statute being
implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature
of subordinate legislation, designed to implement a primary legislation by providing the details thereof.
All that is required is that the regulation should be germane to the objects and purposes of the law; that
the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.7
Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of
R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections 32
and 33 of R.A. No. 7166. Under this broad power, the COMELEC was mandated to provide the details of
who may bear, carry or transport firearms or other deadly weapons, as well as the definition of
"firearms," among others. These details are left to the discretion of the COMELEC, which is a
constitutional body that possesses special knowledge and expertise on election matters, with the
objective of ensuring the holding of free, orderly, honest, peaceful and credible elections.
In its Comment,8 the COMELEC, represented by the Office of the Solicitor General, states that the
COMELEC’s intent in the inclusion of airsoft guns in the term "firearm" and their resultant coverage by
the election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or
terror during the election period. An ordinary citizen may not be able to distinguish between a real gun
and an airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun
or a recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of
free, orderly, honest, peaceful and credible elections this year.
Contrary to petitioner’s allegation, there is a regulation that governs the possession and carriage of
airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007,
entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale,
Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The
Circular defines an airsoft gun as follows:
Airsoft Rifle/Pistol x x x includes "battery operated, spring and gas type powered rifles/pistols which
discharge plastic or rubber pellets only as bullets or ammunition. This differs from replica as the latter
does not fire plastic or rubber pellet.
PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its
use only to sporting activities, such as war game simulation.9 Any person who desires to possess an
airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP
Standard Operating Procedure No. 13, which prescribes the procedure to be followed in the licensing of
firearms.10 The minimum age limit of the applicant is 18 years old.11 The Circular also requires a Permit to
Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site.12
A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an
absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may
thereafter be reasonably imposed.13
The inclusion of airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the
gun ban during the election period is a reasonable restriction, the objective of which is to ensure the
holding of free, orderly, honest, peaceful and credible elections.1avvphi1
However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term
"firearm" under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns.
Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in these
constitutional provisions:
Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution. x x x
Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism and nationalism, accelerate
social progress, and promote total human liberation and development.
Petitioner asserts that playing airsoft provides bonding moments among family members. Families are
entitled to protection by the society and the State under the Universal Declaration of Human Rights.
They are free to choose and enjoy their recreational activities. These liberties, petitioner contends,
cannot be abridged by the COMELEC.
In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the
aforementioned state policies, but even constitutional freedoms are not absolute, and they may be
abridged to some extent to serve appropriate and important interests.
As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft
gun. As a lawyer, petitioner is aware that
a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and
other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the
aforementioned State policies, which do not directly uphold a licensee’s absolute right to possess or
carry an airsoft gun under any circumstance.
Petitioner’s allegation of grave abuse of discretion by respondent COMELEC implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of
power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so
patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.14
The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and
airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election
period, with the apparent objective of ensuring free, honest, peaceful and credible elections this year.
However, the replicas and imitations of airsoft guns and airguns are excluded from the term "firearm" in
Resolution No. 8714.
WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and imitations of
airsoft guns from the term "firearm" is concerned. Replicas and imitations of airsoft guns and airguns are
hereby declared excluded from the term "firearm" in Resolution No. 8714. The petition is DISMISSED in
regard to the exclusion of airsoft guns from the term "firearm" in Resolution No. 8714. Airsoft guns and
airguns are covered by the gun ban during the election period.

BASCO v. PAGCOR, G.R. No. 91649 (Digested Case)

G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND

LORENZO SANCHEZ,petitioners, v. PHILIPPINE AMUSEMENTS AND GAMING CORPORATION
(PAGCOR), respondent.

Re: Principle of Local Autonomy

FACTS: The PH Amusement and Gaming Corp. was created by PD 1067-A and granted a
franchise under PD 1067-B. Subsequently, under PD 1869, the Government enabled it to
regulate and centralize all games of chance authorized by existing franchise or permitted
by law, under declared policy. But the petitioners think otherwise, that is why, they filed
the instant petition seeking to annul the PAGCOR Charter — PD 1869, because it is
allegedly contrary to morals, public policy and order, and because of the following
issues:

ISSUES:
(1) WON it waived the Manila City gov't's right to impose taxes and license fees, which is
recognized by law.

(2) WON it has intruded into the LGUs' right to impose local taxes and license fees, and
thus contrary to the principle of local autonomy enshrined in the Constitution.

(3) WON it violates the equal protection clause as it allows some gambling acts but also
prohibits other gaming acts.

(4) WON it violates the Cory gov't's policy of being away from monopolistic and crony
economy, and toward free enterprise and privatization.

HELD:
(1) No. The fact that PAGCOR, under its charter, is exempt from paying tax of any kind is
not violative of the principle of local autonomy. LGUs' have no inherent right to impose
taxes. LGUs' power to tax must always yield to a legislative act which is superior having
been passed by the state itself which has the inherent power to tax. The charter of LGUs
is subject to control by Congress as they are mere creatures of Congress. Congress,
therefore, has the power of control over LGUs. And if Congress can grant the City of
Manila the power to tax certain matters, it can also provide for exemptions or even take
back the power.

(2) No. LGUs' right to impose license fees on "gambling", has long been revoked. As
early as 1975, the power of local governments to regulate gambling thru the grant of
"franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested
exclusively on the National Government. Furthermore, LGUs' have no power to tax
instrumentalities of the gov't such as PAGCOR which exercises governmental functions
of regulating gambling activities.

(3) No. The clause does not preclude classification of individuals who may be accorded
different treatment under the law as long as the classification is not unreasonable or
arbitrary. A law does not have to operate in equal force on all persons or things to be
conformable to Article III, Section 1 of the Constitution. The Constitution does not require
situations which are different in fact or opinion to be treated in law as though they were
the same.
(4) No. The judiciary does not settle policy issues. The Court can only declare what the
law is and not what the law should be. Under our system of government, policy issues
are within the domain of the political branches of government and of the people
themselves as the repository of all state power. On the issue of monopoly, the same is
not necessarily prohibited by the Constitution. The state must still decide whether public
interest demands that monopolies be "regulated" or prohibited. Again, this is a matter of
policy for the Legislature to decide. The judiciary can only intervene when there are
violations of the statutes passed by Congress regulating or prohibiting monopolies.

G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,
petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.

H.B. Basco & Associates for petitioners.

Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:

A TV ad proudly announces:

"The new PAGCOR — responding through responsible gaming."

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived
the Manila City government's right to impose taxes and license fees, which is recognized by law;

B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the
local government's right to impose local taxes and license fees. This, in contravention of the
constitutionally enshrined principle of local autonomy;

C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR — conducted
gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking
and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and
toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared
national policy of the "new restored democracy" and the people's will as expressed in the 1987
Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11,
12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p.
3, Second Amended Petition; p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A
dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to
establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of
the Philippines." Its operation was originally conducted in the well known floating casino "Philippine
Tourist." The operation was considered a success for it proved to be a potential source of revenue to
fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR
to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to
regulate and centralize all games of chance authorized by existing franchise or permitted by law, under
the following declared policy —

Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to centralize and
integrate all games of chance not heretofore authorized by existing franchises or permitted by law in
order to attain the following objectives:

(a) To centralize and integrate the right and authority to operate and conduct games of chance into one
corporate entity to be controlled, administered and supervised by the Government.

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming
pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including
games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and
which will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects,
such as flood control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan
Centers, Nutritional Programs, Population Control and such other essential public services; (2) create
recreation and integrated facilities which will expand and improve the country's existing tourist
attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos without direct
government involvement. (Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent
therewith, are accordingly repealed, amended or modified.

It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's
income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other
socio-cultural and charitable projects on its own or in cooperation with various governmental agencies,
and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989,
PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.

But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward
"crony economy", and is violative of the equal protection clause and local autonomy as well as for
running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12
(Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution.

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest
and most delicate function which belongs to the judicial department of the government." (State v.
Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is
clear that the legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute (Lozano v. Martinez, supra).

In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the —

. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of
constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond
a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must
negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or
expediency of a statute and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v.
Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970];
Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220,
241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521, 540)

Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
petitioners to file the instant petition.

Considering however the importance to the public of the case at bar, and in keeping with the Court's
duty, under the 1987 Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163
SCRA 371)

With particular regard to the requirement of proper party as applied in the cases before us, We hold that
the same is satisfied by the petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if,
strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court
to waive the requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that "the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must
technicalities of procedure." We have since then applied the exception in many other cases. (Association
of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).

Having disposed of the procedural issue, We will now discuss the substantive issues raised.

Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
(Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as
the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978).
The police power of the State is a power co-extensive with self-protection and is most aptly termed the
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most
essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
force that enables the state to meet the agencies of the winds of change.

What was the reason behind the enactment of P.D. 1869?

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations
in one corporate entity — the PAGCOR, was beneficial not just to the Government but to society in
general. It is a reliable source of much needed revenue for the cash strapped Government. It provided
funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and
control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will be
minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes
and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They
must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from
paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever
nature, whether National or Local."

(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or otherwise as
well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and
collected under this franchise from the Corporation; nor shall any form or tax or charge attach in any way
to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues or
earnings derived by the Corporation from its operations under this franchise. Such tax shall be due and
payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or
assessments of any kind, nature or description, levied, established or collected by any municipal,
provincial or national government authority (Section 13 [2]).

Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v.
City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7
SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the
municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must
always yield to a legislative act which is superior having been passed upon by the state itself which has
the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).

(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that
"municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18,
1957) which has the power to "create and abolish municipal corporations" due to its "general legislative
powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has
the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if
Congress can grant the City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as
1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or
permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:

Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other
local governments to issue license, permit or other form of franchise to operate, maintain and establish
horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked.

Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks,
jai-alai and other forms of gambling shall be issued by the national government upon proper application
and verification of the qualification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits" for the operation
of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.

(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it
also exercises regulatory powers thus:

Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the affiliated entities, and shall
exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliating entities mentioned under the preceding section, including, but not
limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliated entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original
incorporation.

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental,
which places it in the category of an agency or instrumentality of the Government. Being an
instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes.
Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local
government.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control
the operation of constitutional laws enacted by Congress to carry into execution the powers vested in
the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)

This doctrine emanates from the "supremacy" of the National Government over local governments.

Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the
part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States
(Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate
a federal instrumentality in such a way as to prevent it from consummating its federal responsibilities, or
even to seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2,
p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).

The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has
the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D.
1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:

Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy
taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide,
consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively
to the local government. (emphasis supplied)

The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or
revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but
rather is consistent with the principle of local autonomy.

Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III
Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio."

Local Government has been described as a political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs. In a unitary system of government, such as the
government under the Philippine Constitution, local governments can only be an intra sovereign
subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a
system can only mean a measure of decentralization of the function of government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to local government units
remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance
for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).

What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant
of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are
void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re
Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p.
548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because
"it legalized PAGCOR — conducted gambling, while most gambling are outlawed together with
prostitution, drug trafficking and other vices" (p. 82, Rollo).

We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the
well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have
to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the
Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).

The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or
objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in law as though they were the
same (Gomez v. Palomar, 25 SCRA 827).

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not
clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by
B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the
applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are
other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)

The equal protection clause of the 14th Amendment does not mean that all occupations called by the
same name must be treated the same way; the state may do what it can to prevent which is deemed as
evil and stop short of those cases in which harm to the few concerned is not less than the harm to the
public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v.
Arizona, 249 US 2651).

Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away
from monopolies and crony economy and toward free enterprise and privatization" suffice it to state
that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the
government's policies then it is for the Executive Department to recommend to Congress its repeal or
amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not what the
law should be.1âwphi1 Under our system of government, policy issues are within the domain of the
political branches of government and of the people themselves as the repository of all state power.
(Valmonte v. Belmonte, Jr., 170 SCRA 256).

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and
Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be regulated
or prohibited. Again, this is a matter of policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and the
legislature. If the executive and the legislature failed to heed the directives of the articles the available
remedy was not judicial or political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas
v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore,
for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the
Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must be
clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare
a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption.
The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as
the state principles on social justice, role of youth and educational values" being raised, is up for
Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521
—

Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they
claim to have been violated by that statute. This Court, however, is not compelled to speculate and to
imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court
notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and
expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and
which this Court may not constitutionally pass upon. Those issues should be addressed rather to the
political departments of government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control, physical
health, or even their lives does not necessarily mean that the same are directly attributable to gambling.
Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

BOY SCOUTS OF PHILIPPINES v. COA, GR No. 177131, 2011-06-07

Facts:
The jurisdiction of the Commission on Audit (COA) over the Boy Scouts of the Philippines
(BSP) is the subject matter of this controversy that reached us via petition for prohibition [1]
filed by the BSP under Rule 65 of the 1997
Rules of Court.
This case arose when the COA issued Resolution No. 99-011 [5] on August 19, 1999 ("the
COA Resolution"), with the subject "Defining the Commission's policy with respect to the
audit of the Boy Scouts of the Philippines." In its whereas... clauses, the COA Resolution
stated that the BSP was created as a public corporation under Commonwealth Act No. 111,
as amended by Presidential Decree No. 460 and Republic Act No. 7278; that in Boy Scouts
of the Philippines v. National Labor Relations Commission,... [6] the Supreme Court ruled
that the BSP, as constituted under its charter, was a "government-controlled corporation
within the meaning of Article IX(B)(2)(1) of the Constitution"; and that "the BSP is
appropriately regarded as a government instrumentality... under the 1987 Administrative
Code." [7] The COA Resolution also cited its constitutional mandate under Section 2(1),
Article IX (D).
BE IT RESOLVED FURTHERMORE, that for purposes of audit supervision, the Boy Scouts
of the Philippines shall be classified among the government corporations belonging to the
Educational, Social, Scientific, Civic and Research Sector under the Corporate Audit Office
I, to... be audited, similar to the subsidiary corporations, by employing the team audit
approach.
It is the position of the BSP, with all due respect, that it is not subject to the Commission's
jurisdiction on the following grounds:
We reckon that the ruling in the case of Boy Scouts of the Philippines vs. National Labor
Relations Commission, et al. (G.R. No. 80767) classifying the BSP as a
government-controlled corporation is anchored on the "substantial Government
participation" in the National
Executive Board of the BSP. It is to be noted that the case was decided when the BSP
Charter is defined by Commonwealth Act No. 111 as amended by Presidential Decree 460.
The said RA virtually eliminated the "substantial government participation" in the National
Executive Board by removing: (i) the President of the Philippines and executive secretaries,
with the exception of the Secretary of Education, as members thereof; and (ii) the
appointment... and confirmation power of the President of the Philippines, as Chief Scout,
over the members of the said Board.
Also the BSP respectfully believes that the BSP is not "appropriately regarded as a
government instrumentality under the 1987 Administrative Code" as stated in the COA
resolution. As defined by Section 2(10) of the said code, instrumentality refers to "any
agency of the National
Government, not integrated within the department framework, vested with special functions
or jurisdiction by law, endowed with some if not all corporate powers, administering special
funds, and enjoying operational autonomy, usually through a charter."
In a letter [12] dated July 3, 2000, Director Crescencio S. Sunico, Corporate Audit Officer
(CAO) I of the COA, furnished the BSP with a copy of the Memorandum [13] dated June 20,
2000 of Atty. Santos M. Alquizalas, the
COA General Counsel. In said Memorandum, the COA General Counsel opined that
Republic Act No. 7278 did not supersede the Court's ruling in Boy Scouts of the Philippines
v. National Labor Relations Commission, even though said law eliminated the substantial...
government participation in the selection of members of the National Executive Board of the
BSP.
Analysis of the said case disclosed that the substantial government participation is only one
(1) of the three (3) grounds relied upon by the Court in the resolution of the case. Other
considerations include the character of the BSP's purposes and... functions which has a
public aspect and the statutory designation of the BSP as a "public corporation".
The BSP reiterates its stand that the public character of its purpose and functions do not
place it within the ambit of the audit jurisdiction of the COA as it lacks the government
ownership or control that the Constitution requires before an entity may be subject of said...
jurisdiction. [45] It avers that it merely stated in its Reply that the withdrawal of government
control is akin to privatization, but it does not necessarily mean that petitioner is a private
corporation.[46] The BSP claims that it... has a unique characteristic which "neither
classifies it as a purely public nor a purely private corporation"; [47] that it is not a
quasi-public corporation; and that it may belong to a different class altogether.
Issues:
whether the BSP falls under the COA's audit jurisdiction
Ruling:
There are three classes of juridical persons under Article 44 of the Civil Code and the BSP,
as presently constituted under Republic Act No. 7278, falls under the second classification.
Article 44 reads:
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose created by law;
their personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder,
partner or member. (Emphases supplied.)
The BSP, which is a corporation created for a public interest or purpose, is subject to the
law creating it under Article 45 of the Civil Code, which provides:
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed
by the laws creating or recognizing them.
The purpose of the BSP as stated in its amended charter shows that it was created in order
to implement a State policy declared in Article II, Section 13 of the Constitution
Evidently, the BSP, which was created by a special law to serve a public purpose in pursuit
of a constitutional mandate, comes within the class of "public corporations" defined by
paragraph 2, Article 44 of the Civil Code and governed by the law which creates it, pursuant
to
Article 45 of the same Code.
The BSP is a public corporation or a government agency or instrumentality with juridical
personality, which does not fall within the constitutional prohibition in Article XII, Section 16,
notwithstanding the amendments to its charter. Not all corporations, which are... not
government owned or controlled, are ipso facto to be considered private corporations as
there exists another distinct class of corporations or chartered institutions which are
otherwise known as "public corporations." These corporations are treated by law... as
agencies or instrumentalities of the government which are not subject to the tests of
ownership or control and economic viability but to different criteria relating to their public
purposes/interests or constitutional policies and objectives and their administrative...
relationship to the government or any of its Departments or Offices.
We believe that the BSP is appropriately regarded as "a government instrumentality" under
the 1987 Administrative Code.
It thus appears that the BSP may be regarded as both a "government controlled corporation
with an original charter" and as an "instrumentality" of the Government within the meaning
of Article IX (B) (2) (1) of the Constitution
As presently constituted, the BSP still remains an instrumentality of the national
government. It is a public corporation created by law for a public purpose, attached to the
DECS pursuant to its Charter and the Administrative Code of 1987. It is not a... private
corporation which is required to be owned or controlled by the government and be
economically viable to justify its existence under a special law.
Thus, the test of economic viability clearly does not apply to public corporations dealing with
governmental functions, to which category the BSP belongs. The discussion above conveys
the constitutional intent not to apply this constitutional ban on the creation of public...
corporations where the economic viability test would be irrelevant. The said test would only
apply if the corporation is engaged in some economic activity or business function for the
government.
It is undisputed that the BSP performs functions that are impressed with public interest.
Historically, therefore, the BSP had been subjected to government audit in so far as public
funds had been infused thereto. However, this practice should not preclude the exercise of
the audit jurisdiction of COA, clearly set forth under the Constitution, which pertinently...
provides:
Section 2. (1) The Commission on Audit shall have the power, authority, and duty to
examine, audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or pertaining to,... the
Government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with original charters, and on a post-audit
basis: (a) constitutional bodies, commissions and offices that have been granted fiscal...
autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations with original charters and their subsidiaries;
and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly,
from... or through the Government, which are required by law of the granting institution to
submit to such audit as a condition of subsidy or equity.
Since the BSP, under its amended charter, continues to be a public corporation or a
government instrumentality, we come to the inevitable conclusion that it is subject to the
exercise by the COA of its audit jurisdiction in the manner consistent with the provisions of
the BSP
Charter.
WHEREFORE, premises considered, the instant petition for prohibition is DISMISSED.
SO ORDERED.
Principles:
Instrumentality - refers to any agency of the National Government, not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with
some if not all corporate powers, administering special funds, and... enjoying operational
autonomy usually through a charter. This term includes regulatory agencies, chartered
institutions and government-owned or controlled corporations.
Chartered institution - refers to any agency organized or operating under a special charter,
and vested by law with functions relating to specific constitutional policies or objectives. This
term includes the state universities and colleges, and the... monetary authority of the State.