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7/1/2011 - July 2011 Educational Update - Alabama's Immigration Law and Religious Freedom

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

To:                  SLI Supporters                                  

Date:               July 2011  

From:              A. Eric Johnston

Re:      Alabama’s Immigration Law and Religious Freedom

 

            Illegal immigration in America has reached epidemic proportions.  The federal government has failed to address the problem.  Those states bordering Mexico were the first to experience significant problems.  Arizona passed a very tough immigration law.  Texas Governor Rick Perry recently complained of the lack of enforcement of laws along the very lengthy Texas border.  Governor Perry’s concern epitomized the plight of the states with a large illegal immigrant population. 

            Although Alabama is not a border state, it is one of the states that has received a large immigrant population from Mexico, Central and South America.  There are large concentrations in various parts of the state.  Many are here illegally.  In response to this, the Republican led Alabama legislature passed Act No. 2011-535.  It is touted as the strongest law in America on illegal immigration. 

            SLI believes this law is necessary and proper.  Yet, you may wonder why we would opine on an immigration law.  While we support the law, we have concern about how it may affect religious freedom.  During the legislative process, we requested protection for churches and others who minister to immigrants.  No protective provision was  included in the bill. 

            The bill makes it a crime to conceal, harbor or shield an alien.  The definitions and application are very broad.  These would, no doubt, reach many churches which are ministering to immigrants, some of whom may be illegal.  Most churches do not inquire as to the immigration status of a person.  That was not done in the past and is not expected to be done in the future.  Ministry is to the hearts and needs of people, regardless of their situation.  

            The first effort to protect ministries in the legislation was contained in a provision that stated:  “Nothing in this subdivision shall be construed to permit a bona fide religious organization from transporting persons to and from church functions.”  This language was better than nothing, but the term “bona fide” raised questions and it only concerned transport.  Legislators’ concern was that some religious groups may violate the law, such as some did with liberation theology in South America.  There is no doubt this is true.  The phrase was ultimately omitted.             We drafted an amendment to the bill that would have exempted “the provision of sacerdotal, spiritual or ministry services or assistance by any church or religious organization.”

           This amendment was supported by some legislators, considered, but not adopted.  We believe it would have provided minimal protection to religious activities. 

            As the bill finally became law, there were no exceptions for religious activities.  The question many churches and ministries are now asking is whether they will be prosecuted if they carry on ministry activities for illegal immigrants.  The answer we must give at this time is, we do not know.  We will be optimistic that law enforcement will respect the religious freedom of ministries to engage in ministry activities without the need to determine legal status.  Churches do not want to turn away the spiritually needy because of fear of prosecution. 

            We firmly believe that the Alabama Religious Freedom Amendment, Amendment 622, will provide protection to churches who are providing genuine and appropriate ministerial services.  ARFA provides that the state may not burden a religious activity unless it has a compelling interest to do so and then achieved in the least restrictive or burdensome way.  This new law does not state any compelling interest to investigate religious activities.  It provides no alternative means to permit churches to engage in ministry activities, without fear of prosecution.  The reality of criminal penalties is the most severe of burdens.  Therefore, we believe if law enforcement improperly enforces this law against churches and ministry activities, those actions will be unconstitutional.

           Churches do not want to litigate, however.  The best remedy will be to amend this law in the next legislative session to provide an exception which should have been included in its initial passage.  The next scheduled legislative session is six months away.  Those provisions which may affect churches come into effect September 1, 2011.  This raises the possibility that something must be done in the meantime.  If there is a special legislative session called by Governor Bentley for any reason, we request the need for this amendment be included in the call.  If there is abuse, then a special session specifically for this issue should be called.

            In the meantime, SLI suggests that churches and ministries be circumspect in their activities.  This does not require them to check immigrant status, but they should engage only in normal ministry activities.  Perhaps, an Attorney General’s opinion offering guidance would be helpful.  SLI also suggests the possibility of concerned legal and law enforcement groups to reach a consensus on this issue.  We invite a response from church counsel, denominations and organizations, bar associations, law enforcement, and others on whether a convocation or conference would be helpful.  We encourage churches with questions to contact us. 

 

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