“I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” – President James Madison, Letter to Edward Livingston, 1822
Illegal immigrants are trying to beat deportation by taking refuge in churches. While the optics and P.R. may be in their favor, the law is clearly not.
Per CBS 4 in Denver, Jeanette Vizguerra, an illegal alien who came to the U.S. 14 years ago, has taken up residence in a Colorado church to avoid being deported by the Trump Administration:
She has taken sanctuary in the First Unitarian Society of Denver church located at 1400 N Lafayette St. in Denver’s Capitol Hill neighborhood. She says she has been fighting to stay in this country for the last eight years.
“This is not just an attack on me but an attack on the whole immigrant community,” said Vizguerra. “We have to look and see what we’re going to do, how we’re going to take action to protect ourselves.”
Ah yes, it would appear that two of the platform planks that elected the current GOP government – immigration control and religious freedom – might finally be coming to an impasse. Religious liberty opponents and open-border advocates, rejoice.
In a related story earlier this week, The Washington Post paints the potential legal showdown between ICE and sanctuary cities as a “looming conflict” of immigration enforcement and the First Amendment.
But is harboring illegals really a religious freedom issue? Case law and common sense suggest otherwise.
As pointed out in the WaPo story, such cases (and there are far more in the works) hearken back to the old-world principle of sanctuary, wherein legal authorities would not make arrests inside churches and people could seek legal asylum therein.
No such legal principle presently exists in the United States, of course, but some forms of it are still observed prudentially by law enforcement officials. Simply put, that is due to the fact that while serving a warrant on parish grounds clearly doesn’t violate the First Amendment, the optics of hauling someone out of the pews in a set of handcuffs are usually terrible.
As to whether or not this is truly a First Amendment issue, there already exists ample amount of precedent from a pair of connected Reagan-era federal circuit cases stemming the efforts of the “sanctuary movement” – a network of churches who harbored illegals in the 1980s.
In the so-called “sanctuary trials,” two Christian laypeople – the Catholic John Elder and the Methodist Stacey Lynn Merkt – were charged with knowingly giving aid to illegal immigrants. Both appealed for relief on religious freedom grounds, and both appeals were denied.
“The sincerity of appellants' religious motivation to aid El Salvadorans was not doubted by the trial court,” reads a federal district opinion in Merkt’s case.
“Whether such motivation, in turn, required defiance of the nation's border control laws, hence, whether enforcement of those laws so as to inhibit and punish appellants burdened their religious practice, is another matter ,” it continues. “They chose confrontational, illegal means to practice their religious views — the "burden" was voluntarily assumed and not imposed on them by the government.”
Things would be different today — or, at least, that’s what Liz Platt, one of the legal experts in the WaPo story, believes.
“The courts did something that would never fly today,” Platt said. The courts “questioned whether their religious beliefs were really being burdened. They had some clergy members come in and say, ‘Actually, there’s no reason why under Christianity you would need to do this.’”
“Under the Supreme Court’s decision in Hobby Lobby,” by contrast, “they were super deferential to the claimants who said that their religious rights had been burdened.”
The ruling rested on the three-part balancing test from the Sherbert and Yoder decisions, which later was codified into the Religious Freedom Act in 1993. It weighs the “undue burden” on a person’s beliefs, the compelling interest of the government, and whether the interest was sought by the “least restrictive means” possible.
While courts may be less apt to act as theological arbiters (a good thing), the claim would still fall apart on the final two portions of balancing test, as it did in Elder and Merkt’s cases.
The idea that a government doesn’t have a compelling interest in enforcing its own laws, or that it doesn’t have any business establishing its citizenship criteria, is profoundly stupid and was rejected outright by the Fifth Circuit. Clearly, managing sovereign borders is one of the primary jobs of a functioning country. (Or, at least, that’s what everyone used to believe.)
Subsequently, the “narrowly tailored” alternative of simply deporting the aliens without pressing charges against their conspirators would “implicate the Border Patrol in a wasteful ‘catch-me-if-you-can’ scheme” and “reduce appellants’ efforts to a pitiful farce.”
More importantly, such a practice would, a judge warned in Elder’s case, “result in no immigration policy at all” because “These widely-held beliefs allow adherents to exercise considerable discretion and would permit religious individuals to form personal immigration policies.”
Applying this concept at the institutional level would effectively give lawmaking and enforcement power to congregations, parishes, and religious conferences. Now THAT’s an Establishment Clause problem for you … not to mention it would be even more chaotic for immigration policy than allowing sanctuary cities and blue states to try to circumvent the law, as so many already do.
This brings us back to today. “[T]he Trump administration may be torn between what it prioritizes more: its ability to deport immigrants in the country illegally,” concludes the WaPo story, “or the right of religious Americans to stand in their way.”
While the paragraph makes for a great stinger, just like the "right" of an non-citizen to enter this country against the popular will, no such right exists.
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, jihadism, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.