RELIGIOUS LIBERTY, IMMIGRATION SANCTUARY, AND UNINTENDED CONSEQUENCES FOR REPRODUCTIVE AND LGBTQ RIGHTS.

• Author: Keeley, Laura

Abstract

The idea that people in the United States are free to exercise their religion has existed as long as the country itself. Presently, in the aftermath of the presidential election of Donald Trump, there has been renewed interest among religious congregations in providing sanctuary for undocumented immigrants at risk of deportation. This note considers the idea that potential religious liberty claims could be made by faith-based communities to provide sanctuary. It pays particular attention to potential unintended consequences those claims could have for reproductive and LGBTQ rights. This note proposes that any religious liberty claims made in the name of sanctuary should 1) be evaluated in the domain of antidiscrimination law and not analogized to much broader "conscience clauses "; 2) advocate for a narrower construction of religious liberty jurisprudence and religious liberty-protecting statutes; and 3) push courts to evaluate the sincerity of sincerely held religious beliefs.

INTRODUCTION

Jeanette Vizguerra, a forty-five-year-old mother of four, walked into a Colorado church in February 2017, a few weeks after the inauguration of President Donald Trump. Vizguerra went back to her Colorado home--eighty-six days later.

Vizguerra spent three months between two Denver churches, First Unitarian Society and First Baptist, avoiding Immigration and Customs Enforcement (ICE) officers. (1) Vizguerra, an undocumented immigrant, has lived in the United States since 1997. Three of her children--ages six, ten, and twelve at the time--were born in the United States. (2) Her adult daughter has Deferred Action for Childhood Arrivals (DACA) status (3) and a two-year-old son. Vizguerra had been granted multiple stays of removal, postponing her deportation, since pleading guilty to using a fake social security number in an attempt to work in 2009. (4) Her lawyer applied for a renewal of her stay on December 6, 2016, but her stay of removal expired on February 7, 2017. (5) Rather than going to a scheduled meeting with ICE officials, Vizguerra went to church. (6) She declared sanctuary at First Unitarian Society. After eighty six days, she was granted another stay of deportation, valid through March 15, 2019. (7)

For First Unitarian Society's Reverend Mike Morran, the duty to shelter Vizguerra was a moral one. "It is our position as a people of faith that this is sacred and faithful work," he said at the press conference in which Vizguerra announced her decision to seek sanctuary. (8) The fact that offering sanctuary to Vizguerra and helping her evade immigration authorities violated federal law did not deter Morran from fulfilling what he saw as his moral duty. (9)

Vizguerra is not the only undocumented immigrant who has sought sanctuary rather than face deportation, and the two churches in Denver are part of a much larger network of faith communities willing to defy the law to help this population. (10) More than 800 religious congregations--up from about 400 pre-election--in the United States are engaged in supporting the sanctuary movement in some way. (11)

The federal government does not have to respect a claim for sanctuary, though ICE official policy calls for avoiding enforcement actions, like arrests and searches, at "sensitive locations" like schools, hospitals, and places of worship. (12) There is no guarantee the Trump administration will continue to follow the policy. (13) Given the unpredictability of the current administration, more undocumented immigrants might opt for sanctuary in a house of worship rather than risk deportation with ICE.

The intersection of religious liberty and immigration pits two of the Trump administration's prominent policy goals against each other. The administration has issued executive orders focused on both the promotion of religious liberty (14) and increased immigration enforcement and deportation. (15) The idea of freedom of religious exercise in the United States has existed as long as the country itself. And we have been debating exactly what that means for just as long. (16) Opinions on the place of religion in secular society have changed significantly over time. In 1971, Chief Justice Burger wrote for the Court when he said, "The Constitution decrees that religion must be a private matter for the individual, the family, and institutions of private choice," such as churches, mosques, and temples. (17) This view has eroded over time, with religious liberties seeping further and further into secular spaces. (18)

This Note considers the idea that potential religious liberty claims could be made by faith-based communities to provide sanctuary for undocumented immigrants and pays particular attention to potential unintended consequences those claims could have in the areas of reproductive and LGBTQ rights. Arguments to justify religious liberty in the name of sanctuary could be used in the future by different parties in attempts to limit reproductive rights (19) and discriminate against LGBTQ persons. (20) The announcement by President Trump of the creation of a new oversight entity in the Department of Health and Human Services, the Conscience and Religious Freedom Division, is an example of this religious-liberty-as-discrimination phenomenon. (21) This Note proposes that any religious liberty claims made in the name of sanctuary should 1) be evaluated in the domain of antidiscrimination law and not analogized to much broader "conscience clauses"; (22) 2) advocate for a narrower construction of religious liberty jurisprudence and religious liberty-protecting statutes, such as the Religious Freedom Restoration Act (RFRA); and 3) push courts to evaluate the sincerity of sincerely held religious beliefs.

Part I establishes the First Amendment protections afforded to religion through the Free Exercise Clause and the Establishment Clause, which also act to make sure that no one religion receives preferential treatment to others. It then turns to the relevant history of the original sanctuary movement of the 1980s and the subsequent renewal in interest in protecting religious liberties in the 1990s after the Supreme Court's decision in Employment Division v. Smith. (23) This upwelling of interest resulted in the Religious Freedom Restoration Act of 1993 (RFRA), a widely supported bipartisan effort that codified the idea that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless the government shows that application of the burden is "the least restrictive means" to further a "compelling governmental interest." (24) A compelling government interest is protecting "third-parties"--"persons who derive no benefit from an exemption because they do not believe or engage in the exempted religious practices" (25)--from burdens as a result of an exemption. (26) This Note then chronicles the subsequent modifications to RFRA, including the Court's decision that it was unconstitutional as applied to the states, (27) and outlines the status of religious freedom jurisprudence now. RFRA applies to the federal government, and the twenty-one states that passed their own RFRA-like laws (28) have a similar governing standard. Otherwise, the Court's free exercise line of cases, including Smith, remains the relevant standard. (29) RFRA was universally praised at the time it was passed, but that support splintered a few years later as the idea of marriage equality for LGBTQ persons began to gather more support and opponents of marriage equality began using claims of religious freedom to resist it. (30)

Part II looks at how RFRA has developed into a sword to attack reproductive and LGBTQ rights. To do so, this Note closely examines the decision in Burwell v. Hobby Lobby, (31) which brought an unprecedented expansion to RFRA's protection by holding that closely held (32) for-profit companies were "persons" that could have sincerely held religious beliefs covered under RFRA. The decision, which allowed those companies to claim an exemption from the Affordable Care Act of 2010's contraception mandate, (33) set the groundwork for further erosion of birth control coverage for women and provided a blueprint for businesses to challenge antidiscrimination provisions protecting LGBTQ persons. Of all the issues with the Hobby Lobby decision, the Court gutting the third-party burden analysis of its importance could be the most damaging going forward. By discussing, in detail, the reasoning and implications of Hobby Lobby, this Note provides an example of a religious liberty claim extended too far, and Hobby Lobby should be fresh in the minds of any litigator or activist preparing to use religious liberty claims to attempt to help undocumented immigrants. A case decided by the Supreme Court in June 2018, Masterpiece Cakeshop v. Colorado Civil Rights Commission, (34) threatens to further expand religious freedom in the future at the expense of third parties and allow for-profit companies to refuse to serve the LGBTQ community.

Part III offers a proposed framework, as stated above, for any potential religious liberty claims made in the name of sanctuary. Such claims are not merely theoretical. An Arizona man volunteering with No More Deaths, a humanitarian organization affiliated with the Unitarian Universalist Church of Tucson, has asserted RFRA as a defense (35) to criminal charges of violating the anti-harboring provision of Immigration and Nationality Act (INA) (36) for allegedly providing two undocumented migrants food, water, beds, and clean clothes at a private residence that serves as an aid station in the desert over an approximate three-day period. (37) His trial is set for May 29, 2019. (38) This Note's suggestions for potential religious liberty claims should help prevent any further erosion of antidiscrimination law or reproductive rights in the name of religious liberty. Properly framed religious...