Thursday, August 23, 2007

Churches as Sanctuaries (Part II)

Earlier this summer, I wrote about a movement by several religious congregations around the country to offer sanctuary to illegal immigrants who face deportation. At the time, a question had arisen about the government’s authority to make arrests on religious property, and I argued that there was no constitutional or statutory obstacle to doing so. It was unclear, however, whether the government would actually send officers into churches, mosques, and temples for this purpose.

We may now have the answer. An article in the Times this week reports that federal agents recently arrested Elvira Arellano, an illegal immigrant and outspoken advocate of immigration reform who spent the last year in a Chicago church that had offered her sanctuary. But Arellano was not arrested at the church. She was arrested a few blocks away from another church in Los Angeles where she had just given a speech about the effects of deportation on immigrant families. Sadly, she was with her 8-year old son who is an American citizen and remained behind when she was sent back to Mexico.

An immigration official declined to explain why Arellano was not arrested earlier, but the Times reports that “immigration agents generally do not make arrests on religious property.” If true, this raises another question: Does the government’s decision not to make arrests on church property favor religion in such a way as to violate the Establishment Clause? I think the answer is no. The Establishment Clause prohibits government from endorsing or funding religion, but it does not generally prohibit government from accommodating religious exercise. For instance, the Supreme Court recently held that the Establishment Clause was not violated by a federal law protecting the ability of prison inmates to worship as they please. True, harboring fugitives is not exactly religious exercise. But the government could plausibly argue that it is simply respecting the ability of congregants to worship without fear of disturbance. And then, of course, it can arrest them as they drive away.


Tam said...

Prof. Healy,

I would agree with you, I think. It seems like only the endorsement test can reasonably apply here to argue for an EC violation. One might say that by its selective non-application of the law in favor of those who take shelter in churches, the government is "making religion relevant to the person's standing in the political community," and more specifically, in a way that sends a message "to adherents that they are insiders, favored members of the political community."

I don't know what the facts of this case are, but one might counter that the person taking sanctuary here was not a church member, and thus, the benefit that accrued was not to an "adherent" of the religion.

However, suppose it were the case that churches only give sanctuary to members of its own faith. Or, suppose that even though churches have no such "de jure" requirement, nonetheless, as a "de facto" matter, it turns out that only religious illegal immigrants are the ones who seek refuge, because there is a strong sensibility in Mexican culture that one doesn't step foot into a church unless one belongs to the faith, no matter what. Would those circumstances strengthen the "appearance of endorsement" argument?

Furthermore, while I realize that Employment Division v. Smith is a free exercise case rather than an establishment clause case, one might read it as the Court's revealed preference for less accomodation for religion. Assuming you agree with the level of generality of that characterization, do you think that makes it more likely that the above argument would succeed, since such a Court would be more apt to view the non-arrests as an unconstitutional accomodation?

Thomas Healy said...

The problem with the endorsement argument is that one could say the same thing about any accomodation of religion, and yet the Court has upheld other accomodations. The Religious Land Use and Insitutionalized Persons Act, for instance, could be seen as singling out religious prisoners for favorable treatment since it protects their right to worship while not protecting the right of prisoners to, say, lift weights or watch TV. It also gives religious organizations more protection against zoning laws than is provided to non-religious groups. But the Court rejected an Establishment Clause challenge to the law. You may be right that under some set of facts a decision not to make arrests on church property could be a violation; I'm just not sure what those facts would be.

As to the Smith decision, I don't read it as expressing hostility to legislatively approved accomodations. Scalia's majority opinion expressly endorses use of the political process to gain religious accomodations. I think what the Court objected to was reading the free exercise clause to require accomodations. I also don't think the current justice (five of whom are Catholic) are likely to read the Establishment Clause as prohibiting religious accomodations.

egarber said...

I think it depends on how that accommodation finds its way into law. The RFRA cases reflect that the Supreme Court won't tolerate excessive federal efforts to require accommodation by the states. Of course, those cases have to do with Congress' 14th amendment authority, and a larger separation of powers matter.

As far as states writing their own rules, I would think that becomes an equal protection issue. Suppose my friend and I are both seeking a safehouse (probably the wrong word). He goes into a church, and I go into a private home.

If the police execute the law in such a way that I get arrested, and my buddy doesn't, you basically have a rule whereby your liberties are more protected if you're "religious", or less protected if you're not.

Paul said...

It seems a stretch to me to assert that disagreement with the law is a right of religious accommodation. That is, for example, the use of drugs for religious purposes is not mere disagreement. There is an existing (not really sure that prior establishment of the practice is relevant) religious practice that comes into conflict with a generally applicable law. RFRA and/or 1st Amendment accommodation doctrine requires some analysis to determine if the generally applicable law finds an exception to enforcement due to the religious practice.

Here, though, there is simply disagreement on immigration policy. It is not an integral part of a religious practice or ceremony to come to the United States. Here, the churches granting "sanctuary" are simply harboring fugitives. RFRA/1stA should be granting no protection here.

I agree with egerber's conclusion in his example as well. I also think it is fairly clear that the substantive nature of the crime combined with the specific religion in question is directing the practice as well. I find it hard to accept that if a Mosque granted sanctuary to a suspected terrorist fugitive that the response would be the same.

Tam said...


No one has argued that illegal immigrants have a right not to be arrested, either hypothetically or under some application of any law currently in effect. The issue is merely whether the government's application of law-enforcement discretion not to arrest illegal immigrants on church property constitutes a violation of the establishment clause.

Prof. Healy,

Points taken, re the endorsement argument being too strong, and also on your reading of Justice Scalia's opinion in Smith.

On the majority-Catholic point, however, since the two new Catholic Justices merely replaced Justices of other religions (Lutheran and Episcopalian, according to a quick google search), rather than atheists or agnostics, are there reasons to think that Catholics are more likely to be accommodationist? (That is a genuine question, not a rhetorical one).

Thomas Healy said...


Good point. I don't know of any reason why Catholic justices would be more sympathetic to legislative accomodation than Lutheran, Episcopalian, or Jewish justices. I suppose I mentioned the Catholic justices because more attention has been paid to their religious beliefs than to the beliefs of the other justices. In any event, it's hard to imagine this particular Court readily striking down legislative or executive efforts to accomodate religious exercise.

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