The Intersection of Religious Freedom and Immigration Enforcement

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Twenty-seven religious organizations came together earlier this month to sue the Trump administration over its decision to authorize immigration enforcement actions in churches and other religious settings. “Criminals will no longer be able to hide in America’s schools and churches to avoid arrest,” said a Department of Homeland Security (DHS) spokesperson about the administration decision that led to the lawsuit.

Filed in the U.S. District Court for the District of Columbia, their lawsuit claims:

The rescission of the sensitive locations policy is already substantially burdening the religious exercise of Plaintiffs’ congregations and members. Congregations are experiencing decreases in worship attendance and social services participation due to fear of immigration enforcement action. For the vulnerable congregants who continue to attend worship services, congregations must choose between either exposing them to arrest or undertaking security measures that are in direct tension with their religious duties of welcome and hospitality. Likewise, the choice that congregations currently face between discontinuing social service ministries or putting undocumented participants at risk of arrest is no choice at all… (pp. 8-9)

This lawsuit overlaps in important ways with one that five Quaker congregations filed in late January in a federal district court in Maryland. The judge in this case issued a preliminary injunction on Monday that bars – unless the conditions of the rescinded policy are satisfied – enforcement on the premises of the congregations that filed the lawsuit, which now also include the Cooperative Baptist Fellowship and Sikh Temple Sacramento, among a few others. The injunction does not apply nationwide.

Nevertheless, these lawsuits and the DHS policy change they are challenging raise critical questions at the intersection of human dignity, the rule of law, and religious freedom. It is those underlying substantive matters that I want to address.

While the brokenness of our border policies must no longer go unaddressed, the current administration must uphold human dignity and the rule of law in its immigration enforcement efforts. Both are foundational to America and generally reinforce one another. And protecting everyone’s religious freedom, rightly understood, is integral to both.

When DHS announced in January the revocation of its “Guidelines for Enforcement Actions In or Near Protected Areas,” it opened places of worship and other religious settings to immigration enforcement actions. It must be said that this decision is part of broader changes in U.S. immigration policy to deal with the consequences of the massive increase in illegal immigration during the last four years. Any worthwhile appraisal of this change must appreciate that larger context.

Saying that, the administration should still restore the strong presumption against entering into churches, faith-based schools, religious health clinics, and other faith-based spaces to arrest illegal immigrants. Such a presumption is good policy and a vital way to respect the religious freedom of those serving, and those being served, in religious institutions. Immigration authorities should forgo arresting illegal immigrants in these spaces absent the exigent circumstances spelled out in the rescinded policy involving threats to public safety, national security, or related circumstances.

Religious Americans must be free to exercise their faith among their foreign-born neighbors, including those who are in the country illegally. The religious freedom of illegal immigrants must also be respected. God-given, equal human dignity – the principal foundation of religious freedom – transcends borders. The recent lawsuits essentially get these things right.

But we must ask, what does the rule of law demand in this context? Neither equal human dignity nor religious freedom confer an unqualified right to enter, or remain in, a country in which a person has no legal status. Moreover, neither principle authorizes religious communities to be complicit in lawbreaking, provided that the law in question is not inherently unjust. Despite the view of many that U.S. immigration law is flawed and in desperate need of reform, it does not fall into that category. If the administration restored the strong presumption against enforcement actions in religious settings, as it should do, it would nevertheless be an abuse of that presumption for religious communities to harbor illegal immigrants for the purpose of shielding them from arrest or removal.

Admittedly, there are some additional considerations that might be relevant. What about harboring illegal immigrants seeking asylum or other forms of legal relief or protection? What about safeguarding the integrity of families when an illegal immigrant has U.S. citizen children and removal would divide the family? There may be other circumstances that lead religious communities to contemplate extraordinary measures to secure illegal immigrants in their care from apprehension. The array of factors in specific cases that might warrant such action prevents me from drawing overly general conclusions in this context. Nevertheless, a religious community’s calling to show compassion for the immigrants in their midst should not be understood as supplying a prima facie right, on religious freedom grounds, to interfere with the government’s enforcement of immigration law.

Ultimately, the administration should restore heightened protections for sacred spaces when it comes to immigration enforcement. And if it does, religious communities should not exploit those heightened protections as a means to obstruct the government’s legitimate enforcement of immigration law.

Firmly committing to the rule of law, human dignity, and religious freedom offers no easy answers, but it does provide a framework for dealing justly with everyone involved.