Donald Trump has wasted no time making good on his campaign to enact a reign of terror against immigrants. Now, churches and religious groups are pushing back, suing the administration for violating their religious freedom.
On day one, the Department of Homeland Security rescinded the sensitive locations policy. That policy, in place for decades in various forms, generally prohibited U.S. Immigration and Customs Enforcement from undertaking immigration enforcement actions in places like churches, hospitals, and schools—unless there was an imminent risk of harm or threat to national security or public safety.
The principle behind the sensitive location policy is that no one should be denied access to essential activities, such as medical care or religious observance, and that there are ample other places ICE can arrest people. Throwing out that policy doesn’t just mean that undocumented immigrants are more vulnerable to arrest in a place of worship, however. It also means that churches whose faith requires them to welcome undocumented immigrants to worship must choose between honoring their faith and following the law.
A sign that prohibits ICE or Homeland Security is posted at St. Paul and St. Andrew United Methodist Church in New York
That’s where this lawsuit comes in. Twenty-seven Jewish and Christian religious groups, representing national denominations and interdenominational associations with millions of members, sued to reinstate the sensitive locations policy and prohibit immigration enforcement actions in places of worship unless there are exigent circumstances. They contend that the government’s actions violate the Religious Freedom Restoration Act.
The RFRA was enacted in 1993 and provides for religious exemptions from federal laws.
It prohibits the government from substantially burdening someone’s exercise of their religious beliefs, even if it stems from a generally applicable rule, unless the government shows that the burden is the least restrictive means of pursuing a compelling government interest.
RFRA is a conservative fan favorite. Indeed, two powerhouse conservative legal organizations, the Alliance Defending Freedom and the Becket Fund, were founded after RFRA’s passage just to litigate religious freedom cases, usually for evangelical Christians. The RFRA underpinned Burwell vs. Hobby Lobby’s holding that the Affordable Care Act’s contraception mandate violated the religious freedom of the evangelical owners of Hobby Lobby. The RFRA is what the Supreme Court’s most conservative justices routinely lean on when dissenting in cases that expand rights for LGBTQ people. Basically, Christian litigants trot the RFRA out every time they want to be exempt from any laws protecting reproductive freedom, LGBTQ rights, and anything else they don’t like.
But the RFRA has been used successfully by other religious litigants, including in the context of immigrants. In 2020, a federal judge threw out the convictions of three Unitarian Universalist church members who had been arrested for leaving food and water for migrants in the desert. The judge found they were exercising their sincere religious beliefs in leaving supplies and held that applying the criminal law to them violated the RFRA.
Because RFRA cases turn on showing that the law burdens a sincere exercise of religious beliefs, the 27 groups suing to restore the sensitive location policy spend much of their complaint detailing how caring for immigrants is core to their faith. They reference that welcoming strangers, or immigrants, is central to the Torah and present throughout the Christian Gospels. They explain that their religion teaches that all human beings are created in the image of God and therefore deserve care. They state that as citizens of God’s kingdom, they reject all hierarchies of race, language, nationality, and legal status. They also detail their other actions to serve their communities, such as food distribution and preschools, and that providing those services is foundational to their religion. In a particularly savvy move, several plaintiffs explain that their faith requires them to worship together in person, an argument foundational to COVID-19-era challenges by conservative churches seeking exemptions from stay-at-home orders.
ICE officers detain a person.
Put simply, what all the plaintiffs are saying is that if ICE can come in and arrest immigrants in houses of worship, that substantially burdens their ability to exercise their religious beliefs that require them to serve and protect everyone. If the groups continue to serve undocumented persons, they are serving them up to ICE, which violates their religious duties of welcoming and care. If they decide to no longer serve undocumented persons, that also violates their religious duties of welcoming and care. Several of the plaintiffs explained they were already being harmed. Fewer people are attending services because of fear of ICE, clergy members are having to take time away from ministering to secure resources to keep undocumented congregants safe, and fewer community members are using services like soup kitchens.
This should be a slam dunk for the plaintiffs. All of them have shown that longstanding tenets of their faith require them to actively protect immigrants, to join with them in person for worship and fellowship, and to serve the community without regard to legal status. They can’t do that if ICE can just roll into their houses of worship and shatter the peace and sanctuary of the space to arrest people.
The government has not yet filed a response in this case. However, there’s no question their position will be that there is such a compelling interest in arresting undocumented people that it overrides the right of the plaintiffs to practice their religious beliefs. Any compelling interest the Trump administration will put forth, though, is based on their fiction that there is a border invasion of hardened criminals.
Even if a court agrees with that fiction, plaintiffs should still prevail. That’s because the government has to show that the action they want to take—here, sending ICE agents into a church to arrest someone—is the “least restrictive” means of furthering that compelling interest.
That will be tough because the rescinded policy already had a lengthy list of exceptions that gave ICE agents discretion to arrest people in sensitive locations. Under that policy, ICE agents could still go into houses of worship and arrest someone if there was an imminent risk of death or harm, if there was a threat to national security, or if criminal evidence was about to be destroyed. They could also still go in if they were in hot pursuit of someone they had personally observed crossing the border or who posed a public safety threat. Basically, the policy already provided for any emergency circumstances the Trump administration can come up with.
No one really knows what the federal courts will do when the sincere belief of millions of people runs headlong into the administration’s desire to terrorize immigrants. But if past RFRA decisions mean anything at all, these religious groups should be allowed to exercise their religious beliefs and to heed the call to welcome strangers that is so central to their faith.
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