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The looming conflict between Trump’s immigration sweeps and religious freedom

A Feb. 7 photo released by U.S. Immigration and Customs Enforcement shows foreign nationals being arrested during a targeted enforcement operation. (Charles Reed/U.S. Immigration and Customs Enforcement via Associated Press)
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When Guadalupe García de Rayos was detained by Immigration and Customs Enforcement in Mesa, Ariz., after the most recent of her mandated check-ins with the agency, her lawyer, Ray Ybarra Maldonado, was furious. On a conference call, Maldonado said that ICE had lied to him and that he would advise anyone in Rayos’s shoes to seek sanctuary in a church instead of turning themselves in.

Rayos considered that option. Understanding that the check-in might pose a new risk during the Trump administration, allies suggested that she do so. She declined, opting instead for going to Mass and praying before she went to the ICE office.

She was deported to Mexico, leaving her two children behind.

Seeking sanctuary at a church would not have offered as much shelter as you might assume. Many of us are familiar — thanks to “The Hunchback of Notre Dame” — with the concept of taking refuge in a place of worship as a way to avoid civil authorities. While this was a doctrine that existed in some places in the past, it was never instituted by American colonists, and it is not the case now that someone hoping to avoid arrest can be assured of protection in a house of worship. (Nor is it the case that “sanctuary cities” offer protection from detention by federal immigration authorities, as recent raids have made clear.)

There is, however, a reason that Rayos’s attorney recommended seeking refuge in a church. David Leopold, an immigration attorney from Cleveland and former president of the American Immigration Lawyers Association, pointed to a 2011 memorandum from then-ICE Director John Morton. It established that ICE would not conduct enforcement actions in enumerated “sensitive locations”: hospitals, schools, the site of a wedding or funeral, during a demonstration or at a place of worship.

It wasn’t impossible to conduct such an action; it was just that any enforcement in one of the places on the list mandated approval from a top ICE official before proceeding (except in the case of an emergency).

What makes places of worship uniquely appealing on that list, of course, is that they alone are part of the long tradition of seeking sanctuary. The concept, established more than 1,700 years ago in the Theodosian Code of A.D. 392, upholds tenets offered in the Bible. Exodus 22:21 — part of the delineation of laws following the Ten Commandments — implores readers to not mistreat or oppress foreigners. Deuteronomy 27:19 declares that those who deny justice to foreigners, orphans and widows should be cursed.

Churches, in other words, may act to protect immigrants out of a sense of religious obligation. And that is where things might get tricky for the Trump administration.

Last week, a draft executive order that was circulating in the White House was leaked to the media. Titled “Establishing a Government-Wide Initiative to Respect Religious Freedom,” the draft document sides strongly with recent efforts to support the role of religious beliefs in commercial and legal interactions. The draft order focused on political issues that have been at the heart of that conflict, such as same-sex marriage and contraception. But it was a clear indicator that the administration supported a broad interpretation of religious freedom rights.

The most noteworthy case on this subject was Burwell vs. Hobby Lobby, determined in favor of the retail chain by the Supreme Court in 2014. Five justices agreed that the provisions of the 1993 Religious Freedom Restoration Act meant that Hobby Lobby could not be forced to cover contraception in its health insurance for employees, despite such a mandate in the Affordable Care Act.

Liz Platt is the director of the Public Rights/Private Conscience Project at Columbia Law School. When we spoke by phone Friday, she suggested that the new breadth of accommodation for religious liberties might make the issue of offering sanctuary trickier. She noted that offering sanctuary to immigrants living in the country illegally has been challenged in the courts previously, with the religious motivations behind the effort playing a muted role.

During the 1980s, a number of religious institutions were helping people fleeing violence in Central America to travel illegally through the United States. Some of those participating in the effort were arrested, and, among other things, the question was raised of whether the arrests violated their First Amendment rights to free religious practice. They lost.

“The courts did something that would never fly today,” Platt said. The courts “questioned whether their religious beliefs were really being burdened. They had some clergy members come in and say, ‘Actually, there’s no reason why under Christianity you would need to do this.’ ”

“Under the Supreme Court’s decision in Hobby Lobby,” by contrast, “they were super deferential to the claimants who said that their religious rights had been burdened,” she continued. “Under this much, much greater deference to the religious objector and much expanded right to a religious accommodation, I think it’s certainly a possibility that those cases could come out the opposite way today.”

“The new, much, much broader of right to religious exemption that’s provided under RFRA is going to really give them a chance to relitigate” the question of sanctuary, Platt said. She noted, too, that religion might not even be the only boundary, if the leaked executive order is any guide. The document “contained protections not only for religion, but also for conscience,” she said. This raises the prospect of someone harboring an immigrant in their home, challenging prosecution by citing their conscientious decision to do so.

The issue of punishment for those offering sanctuary is key. Since sanctuary isn’t a legal doctrine, those who offer it to immigrants in the country illegally are putting themselves at risk under statutes outlawing the harboring of undocumented immigrants. Federal code bars transporting people known to be in the country illegally or concealing, harboring or shielding those known to be undocumented — “in any place, including any building or any means of transportation.” That includes places of worship.

Leopold, the immigration attorney, agreed that there might be a tension in the administration’s likely priorities. “There’s an inherent conflict between the harboring statutes and religious freedom in this country,” he said. He said he suspects that this could become a significant issue under Trump, thanks in part to his attorney general.

“The law is very broad. And that’s my fear,” Leopold said. “My concern is that you have an attorney general in Jeff Sessions who is anti-immigrant. At this point, he’s the chief law enforcement officer in the country, and he can use the criminal statutes to prosecute people for harboring.”

The penalty for being convicted of harboring someone known to be in the country illegally is five years in federal prison.

The prohibition against raiding places of worship, as outlined in 2011, is a memorandum that could be overturned at any point. There’s another reason that ICE is disinterested in launching raids at places of worship, of course: aesthetics. No head of a government agency wants to have to explain to the public why there were photographs of a priest being lead to a police vehicle in handcuffs.

“I think that if Jeff Sessions begins to prosecute people for harboring … I think there’s going to be hell to pay,” Leopold said. “I think people are going to recoil at any prosecution of a church or a religious figure or parishioners for doing what they believe is their religious duty.”

He compared it to recent protests at airports over Trump’s immigration ban. “It’s the same response that you see when people get off airplanes and are detained at the airport suddenly because they have a passport from a Muslim country,” he added. “I think you’ll see the same thing if you see the government going into a place of worship.”

Leopold and Platt suggest that the conclusion to any debate over sanctuary might end the same way, in court. If so, the Trump administration may be torn between what it prioritizes more: its ability to deport immigrants in the country illegally — or the right of religious Americans to stand in their way.