Liberties Reporting on First Amendment freedoms

A shield for all faiths

Religious Liberty | Border activists’ acquittal shows breadth of federal law protecting religious liberty
by Steve West
Posted 2/11/20, 01:51 pm

A federal court in Arizona last week tossed out the criminal convictions of four immigration activists who left food and water for migrants crossing a border in the desert. But the case was less about immigration than about the scope of a federal law protecting religious liberty.

Activists Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick volunteered with No More Deaths, a humanitarian organization funded by Unitarian Universalists. In 2017, they entered Cabeza Prieta National Wildlife Refuge in southwestern Arizona and left food and 1-gallon jugs of water along trails used by migrants entering the United States unlawfully.

The desolate, waterless federal refuge is the size of Rhode Island and shares a 56-mile border with the state of Sonora, Mexico. Summer temperatures there can reach 120 degrees. Numerous migrants who crossed the border into the refuge have succumbed to starvation or dehydration while walking 50 miles or more to the nearest town. Authorities recovered 32 sets of human remains from the refuge in 2017, according to evidence introduced at the trial.

Hoffman and others admitted to entering the refuge without a permit, but they said their religious belief motivated them and claimed legal protection under the Religious Freedom Restoration Act (RFRA). In a 22-page opinion, U.S. District Judge Rosemary Márquez agreed.

She described the volunteers’ religious views as “idiosyncratic” but said their beliefs closely tied in with traditional Christian values. Their use of Christian symbolism—like writing “Vaya con Dios,” Spanish for “Go with God,” and drawing crucifixes on water bottles—gave credence to their claim that they had a calling to help the migrants because “life is sacred.”

Márquez castigated the federal government for the “gruesome logic” of its “border enforcement strategy of deterrence by death.” She didn’t buy the assertion that allowing people to leave clean water and food in the refuge increased the risk of death or extreme illness by encouraging illegal crossings.

Congress overwhelmingly passed RFRA in 1993 to protect religious expression from criminal or civil laws that are, on their face, neutral toward faith. The law has protected Christian child-placing agencies and wedding service professionals from sexual orientation and gender identity nondiscrimination laws. Christian employers also have used it as a shield from federal requirements to cover contraception and abortifacients in their health insurance plans. It also has protected a religious order that worshipped using an illegal hallucinogenic drug and a Sikh woman who violated regulations by wearing a ceremonial sword into a federal building.

The No More Deaths case helps clarify an ongoing debate over whether RFRA holds more weight than other laws that might limit the free exercise of religion. Luke Goodrich, president of the religious liberty law firm Becket, said RFRA and the First Amendment should win out, as they did in this case. The government could not prove that its interest in preserving a pristine environment or preventing illegal immigration justified a complete bar on faith-based humanitarian assistance in the wildlife preserve.

RFRA—a law supported by both the American Civil Liberties Union and the Southern Baptist Convention—is blind to political or theological views. Many conservatives reject the open borders advocacy of No More Deaths and the views of Unitarian Universalists, while LGBT advocates have criticized RFRA over its protection of those advocating Biblical marriage only. But it doesn’t play favorites: A 2018 study by Becket and Americans United for Life found that Christians are significantly underrepresented in religious freedom litigation under RFRA and the First Amendment.

“Religious liberty is not a ‘conservative’ or ‘progressive’ issue,” Goodrich tweeted. “It is a PEOPLE issue. People of all faiths need religious liberty to truly be themselves within American society.”

Facebook/California State University San Marcos Facebook/California State University San Marcos The campus of California State University San Marcos

Backroom deliberations out

The California State University system settled with a pro-life student organization, agreeing to revise its student fee policies and pay more than $240,000 in damages and attorneys’ fees.

The settlement followed a federal judge’s decision last summer ruling that Cal State San Marcos discriminated against pro-life views in how it distributed mandatory fees to student-run organizations. U.S. District Judge M. James Lorenz found the school had engaged in “backroom deliberations” to provide $300,000 for a Gender Equity and LGBTQ Pride Center while declining to provide $500 for Students for Life to host Mike Adams, a well-known conservative pro-life speaker.

The agreement requires all 23 campuses of the Cal State system, which has nearly half a million students, to adjust their policies in 90 days to make sure student association funds for speech events are “viewpoint neutral.”

“We’re pleased that the court recognized the right of all students to be free from discrimination based on their viewpoint and that, as a result, the Cal State system will better align with the ‘inclusiveness’ and ‘individual and cultural diversity’ it touts within its community,” said Alliance Defending Freedom senior counsel Tyson Langhofer, whose firm represented Students for Life.

Cal State is not the first university system dinged for discriminatory use of student fees. In August 2019, the University of Florida similarly agreed to make policy changes after a Young Americans for Freedom chapter sued. —S.W.

Lead like Jesus

A military watchdog group is up in arms over a U.S. Navy chaplain’s seminar. The Military Religious Freedom Foundation (MRFF) calls Cmdr. Richard Smothers’ “Lead Like Jesus” seminar at Naval Station Newport in Rhode Island a “blatant violation of the separation of church and state.”

The Navy disputed the organization’s description of the seminar and said the flyer about it that went to command staff was merely informative.

“It’s not any kind of directive from the chaplain to lead like Jesus,” Elizabeth Baker, a spokeswoman for Navy Region Mid-Atlantic, told the Navy Times. “It’s a discussion series after services only for those who volunteer to attend.”

Mike Berry, general counsel for First Liberty, told Fox News that MRFF used a dubious reading of the U.S. Constitution.

“Jesus was a leader,” he said. “It’s perfectly legal to study his leadership.”

The Navy Times reported that a “servant leadership” model has gained popularity as “an antidote to toxic commands and a top-down structure” in the military work environment. —S.W.

Condo turnabout

Florida resident Donna Dunbar can hold her weekly Bible study again after filing a Fair Housing Act complaint. A settlement mediated by the U.S. Department of Housing and Urban Development allows her to use the condominium complex’s community social room for religious meetings, First Liberty announced last week. Cambridge House Condominiums in Port Charlotte, Fla., nixed the study after a 2018 board resolution prohibiting “prayers and other religious services, observations, or meetings of any nature … in or upon any of the common elements.” Dunbar, a lay minister in the Seventh-day Adventist Church, said she was “relieved that I can continue to meet with my friends to pray and study God’s Word together.” —S.W.

Steve West

Steve is a graduate of the World Journalism Institute mid-career course.

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