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.