In January, the Department of Homeland Security rescinded a policy enacted by the Obama Administration, and expanded by the Biden Administration, that barred immigration law enforcement from making arrests in “sensitive” areas, namely churches and schools. According to Biden DHS Secretary Alejandro Mayorkas, this had become “fundamental” agency practice, which is something like so-called “super precedent”—that is, rules that progressives prefer.
“Criminals will no longer be able to hide in America’s schools and churches to avoid arrest,” declared President Trump’s DHS. “The Trump Administration will not tie the hands of our brave law enforcement and instead trusts them to use common sense.” To most Americans this seems like common sense. If fugitives are exploiting lenient policies to avoid arrest and deportation, then those policies need adjusting.
However, not everyone seems to appreciate the administration’s common sense. In February, religious groups filed a complaint against DHS, Customs and Border Patrol (CBP), and Immigration and Customs Enforcement (ICE), alleging that rescinding this policy violated religious freedom. A district court ruled against their request for a preliminary injunction, writing that such raids on churches were rare and therefore did not present a burden to the plaintiffs.
A new complaint filed in late April in the U.S. District Court for the District of Oregon asserts that by rescinding its prior guidance and practice, which discouraged ICE activity in “sensitive” or “protected” locations, DHS violated the Administrative Procedure Act and the Religious Freedom Restoration Act, as well as the First Amendment. The plaintiffs are Oregon’s largest Hispanic union and several churches.
The complaint insists that “havens” are “necessary for a functioning society.” Enforcing laws and borders are apparently less necessary. The plaintiffs’ claim that their mission is to create a “more perfect union” is disrupted by federal policy. Plaintiffs must be allowed to aid and abet lawbreaking for the sake of the nation. It cites “this nation’s foundational principles guaranteeing the free exercise of religion; the right to assembly; and the unalienable rights to life, liberty, and the pursuit of happiness”—the privileges of this nation and its lawful citizens, that is.
Whatever the transcendent grounding of these privileges, their particular expression is reserved only for American citizens, and their exercise protected by the American government. The complaint forgoes the basic distinction between the ius civile and ius gentium, laws of particular peoples and laws of all civilized peoples, and the ius naturale, the law of all human beings.
The Left’s approach to immigration is to universalize American privileges to the detriment of America itself.
Before further examining the merits of the case, let’s look at the plaintiffs, who act more like leftist activist NGOs than churches. Westminster Presbyterian Church (PCUSA) of Gainesville, Florida, which is pastored by Rebecca Lawson Putman, is “Deliberately Diverse and Fully Inclusive” and “Committed to change unfair systems.” Our Lady of Guadalupe Parish of San Diego, California, a Jesuit parish, calls itself an “immigrant parish” and features a “migrant ministry,” which apparently includes sheltering migrants who have entered the country illegally.
Augustana Lutheran Church of Portland displays a rainbow flag on its website and describes itself as “a multicultural and multinational congregation of justice-seekers and peacemakers who welcome and affirm every person.” Augustana has a history of defying law enforcement. In 2014, the church hid an illegal Salvadoran from ICE agents for more than two months. At an event called “Sanctuary Sunday,” the church publicly offered asylum to illegal immigrants, or “immigrant Oregonians” as they put it, from “hateful and unjust laws.” The church proudly displays a sign that reads: “Augustana is a Sanctuary. No weapons, no guns, no force allowed.”
The Rev. W.J. Mark Knutson, the pastor of Augustana since 1995, has made a name for himself as the figurehead of these sanctuary churches. “Theologically, we’ll stand our ground against the government—an unjust law is no law at all,” Knutson told The Associated Press. “These are sacred spaces.” And sacred spaces are, apparently, lawless spaces.
The reader will search in vain for similar vigilance in resisting obvious cases of government overreach. None of these churches, for example, locked arms with Pastor John McArthur in his pleas for leniency from the California government’s authoritarian COVID policies. Where, too, is the concern and compassion for the victims of illegal aliens? No statement of support for, say, the Laken Riley Act can be found on the plaintiffs’ websites or press releases. Minatur innocentibus qui parcit nocentibus (he threatens the innocent who spares the guilty).
They Sell Sanctuary
William Blackstone’s Commentaries of the Laws of England relates how the plea of sanctuary functioned under common law. A criminal was spared punishment if he fled to a church, confessed his crime, and thereafter fled the country within 40 days, never to return except by royal permission. All personal property was forfeited. In any case, the plea of sanctuary for criminal offenses was abrogated by statute in 1623, and sanctuary from civil offenses in 1723.
Hence, the plea of sanctuary was never incorporated into the United States as part of the common law, and no statute has ever reintroduced it. During the Vietnam War, some churches offered sanctuary to draft dodgers, as was the case in Bridges v. Davis and United States v. Beyer. But in both cases federal law enforcement entered the churches and arrested the men.
Immigration law contains no special provisions for sanctuary. Title 8 of the U.S. Code § 1324 makes it a crime to knowingly conceal, harbor, or shield from detection an illegal alien “in any place.” Moreover, case law indicates that “harboring” is not limited to actual concealment, and includes taking steps to afford shelter to an illegal alien. No intent to conceal an alien from authorities is required so long as the alien sheltered was known to be an alien by the providers of the shelter. The Second and Fifth Circuits have extended this standard to include any conduct “tending substantially to facilitate an alien’s remaining in the United States illegally.” In other words, anyone who knowingly assists a fugitive may be subject to arrest and prosecution, and a church providing such sanctuary may be subject to criminal fines.
The First Amendment Recovered
It is bizarre but nevertheless true, as the complaint claims in the case pending before the U.S. District Court in Oregon, that precedent has extended First Amendment rights to aliens residing in the U.S. However, precedent cited by the plaintiffs does not indicate that the First Amendment is a barrier to deportation simpliciter, but rather that it is a barrier to selective or targeted deportation (when others are similarly situated) on account of views publicly expressed or associations held. That is, “impermissibly motivated enforcement,” a ridiculous standard, is distinguishable from the present case. In other words, precedent demands uniform enforcement of immigration law. By reintroducing uniformity of enforcement, DHS’s revised policy is more congruent with court precedent.
In the precedent in question, all but one appellant was charged under the McCarran-Walter Act for membership in the Popular Front for the Liberation of Palestine, which “advocates the doctrines of world communism.” The Supreme Court granted an injunction because the appellants “were likely to prove that the [Immigration and Naturalization Service] did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups.” The government admitted, namely, “that the alleged First Amendment activity was the basis for selecting the individuals for adverse action.” That case had questions of association and speech at its center; the present case does not.
The First Amendment does not offer a shield either to the plaintiffs or illegal aliens from Section 1324. The government has a compelling interest in law enforcement, the safety of its citizens, and national sovereignty. Opinions contrary to the government’s pertaining to immigration law do not constitute a religious belief. Churches are not uniquely burdened by uniform enforcement of immigration law, which does not outlaw or hinder religious practice. More basically, criminal law is not negated by the First Amendment.
The famous cases of Wisconsin v. Yoder and Sherbert v. Verner, wherein government regulations were forced to yield to religious convictions, are hardly analogous. In Yoder, Wisconsin’s compulsory school attendance requirement was in play, the violation of which carried a sentence of 30 days in prison. Also incongruous is that the appellants (being Amish) did not flee prosecution. Sherbert involved a dispute over unemployment compensation for a Seventh-day Adventist. Notably in both cases, the appellants were U.S. citizens.
More pertinent is a case like United States v. Lee, in which an Amish employer sued the government because Social Security taxes violated his conscience. The Court disagreed, finding that religious liberty is limited by legitimate government interests and the functions essential to accomplishing said interests. This is especially the case when it comes to uniform, universally applicable policies.
As with other criminal offenders, the First Amendment rights of aliens do not protect them from arrest, prosecution, or deportation. Likewise, the right to speech and assembly does not protect incitement to imminent violence, nor does the right to association and religion permit entering and remaining in the country illegally. To no avail could a religion insist that criminal activity was central to its faith and practice. More generally, Justice Scalia said it best in Employment Division v. Smith:
“It is a permissible reading of the [Free Exercise Clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended…. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself,”—contradicts both constitutional tradition and common sense. To adopt a true “compelling interest” requirement for laws that affect religious practice would lead towards anarchy.”
Justifying Lawlessness
Returning to the present case, any functional “sanctuary” enjoyed by churches exists entirely because of federal prosecutorial discretion—not law, constitutional or otherwise. Nor is reversal of prior policy arbitrary and capricious as the plaintiffs claim. DHS’s new policy is based on considering relevant factors with a rational connection between facts and policy. It is therefore no violation of the APA. As the mere existence of the plaintiffs’ complaint indicates, certain churches are indeed harboring illegal aliens. They are clearly not attempting to reconstruct the common law notion of sanctuary; otherwise they would be facilitating deportations every month or so.
The new DHS guidance issues are agency prerogative and outline the standards, manner, and limits of executing pertinent laws. The agency guidance in question was never so much as blackletter law, nor was it ever invested with constitutional weight.
More pressing than a change in agency policy is the crisis of unenforced laws. Laws repeatedly and permissibly violated thwart the effect of the law itself. The past three decades have featured repeated and increasing trampling of laws that pertain to the security and identity of the United States. The Trump Administration has introduced no new law here—American laws are sufficiently strong on paper. Rather, it has opted to enforce existing law.
That churches are being used to harbor criminals is no defense against enforcement. That churches are aiding and abetting lawbreaking is a blight on Christianity, which Tertullian defended on the basis that its adherents were law-abiding, faithful citizens. Christians, whether Roman Catholic, Eastern Orthodox, or Protestant, have long recognized the temporal sovereignty of secular or civil government. When it comes to things concerning safety, security, and law and order, there is no basis for resisting civil power, which has been given the sword so that citizens may live quiet and peaceable lives.
More fundamentally, these plaintiffs are intentionally or negligently confusing the nature of the immigration crisis by pretending that those who cross our borders illegally are not already guilty of a crime, but rather victims to be pitied.
None of this means that Christians are compelled to exercise vigilante aid to deportations, nor does it mean that Christians cannot show basic kindness to illegal immigrants. It does mean that Christians should not obstruct justice—the giving to each man what he is due. What illegal immigrants are due is a fair and impartial application of the law, the repercussions of which fall only on the lawbreakers themselves. The repercussions may appear severe, but such is the cost of lawlessness.
That certain pockets of the American citizenry and the lawbreakers they harbor have become accustomed to laxity during the past several administrations does not thereby negate the law itself nor delegitimize its proper enforcement. Arguments for the sanctity of human experience do not change this.
DHS’s new policy is a long overdue corrective in the interest of safeguarding U.S. sovereignty. The department is right to say that the new policy “empowers” federal agents “to protect Americans” from the “invasion” of the southern border by “criminal aliens.” This is, in fact, the situation we are facing. And religious liberty must be tempered by due regard to this urgency. The courts should dismiss these sorts of complaints, though given their recent shenanigans I won’t hold my breath. Liberal courts that insist on their apolitical objectivity to obstruct good laws are as activist as the liberal churches that cling to the “separation of church and state” to justify lawlessness.