The Times reports today that several religious congregations around the country are planning to offer sanctuary to illegal immigrants who face deportation. This is the second article in two days describing efforts by religious leaders to oppose some of the more draconian immigration policies advocated since 9/11. Yesterday, the Times reported that a coalition of evangelical Christians is asking Congress to approve a guest worker program for illegal immigrants. Although the coalition also supports increased border security, its endorsement of a guest worker program – along with the sanctuary initiative – is a welcome instance of religious leaders rejecting conservative ideology and exercising independent judgment.
Whether the sanctuary initiative will have any effect is another matter. The Times article states that “it was not immediately clear whether the government would send agents into churches that harbor immigrants or what legal standing they would have to do so.” But I think it’s perfectly clear that government agents can enter church property to apprehend illegal immigrants or any other suspected criminals. The Supreme Court has held that the free exercise clause only prohibits government action that singles out religious organizations for discriminatory treatment. So as long as the agents are simply following a general policy of arresting illegal immigrants, churches (as well as temples and mosques) would have no constitutional basis for keeping them out. Nor would they have a valid claim under the Religious Freedom Restoration Act. That act prohibits the federal government from burdening the free exercise of religion when doing so is not necessary to further a compelling governmental interest. But the government certainly has a compelling interest in arresting illegal immigrants. And if those immigrants are hiding in churches, it would seem necessary to enter church property to arrest them.
Interestingly, this is not the only recent example of churches being used as sanctuaries. Last year, Congress approved the Fugitive Safe Surrender program, which encourages fugitives to turn themselves in at local churches in exchange for favorable treatment, including the possibility of leniency. The goal of the program is worthy – to get fugitives off the streets by giving them a safe place to surrender. But as one of my students, Jeffrey Gruen, argues in his student note, it almost certainly violates the establishment clause. In the words of the legislation, the program “temporarily transforms a church into a courthouse,” complete with judges, prosecutors, and public defenders. It would be hard to find a better example of religion and government becoming excessively entangled.