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9/1/2011 - September 2011 SLI Educational Update - Alabama's Immigration Law and Religious Freedom - Part II



 To:                  SLI Supporters                                  

Date:               September 2011  

From:              A. Eric Johnston

Re:                  Alabama’s Immigration Law and Religious Freedom – Part II

Alabama passed a very strong illegal immigration law in this year’s 2011 regular session of the Alabama Legislature.  We reported on that in our July 2011 Educational Update.  At the time, we expressed our early concern for a potential adverse effect on religious activities in Alabama. 

Four lawsuits have been filed against the law.  One is in state court that deals with a unique Alabama constitutional provision encouraging immigration.  The other three lawsuits were filed in federal court and have been combined into one case.  Two of the actions deal with federal preemption of state law and related immigration issues and a third with religious freedom.  While none of the legal claims have been decided, there has been a temporary injunction in the federal case.  Because of the misguided religion lawsuit, there is significant fear and confusion in the religious community in Alabama. 

 This month’s Educational Update is an interim report and an encouragement while we await the judge’s final decision.  That may be yet some months to come.  In the meantime, we want to encourage churches and ministries in their work and ask they not be stampeded by fear mongers and alarmists who are not doing the religious community any favors.

On August 24, 2011, Chief Federal Judge Sharon Lovelace Blackburn held a hearing which lasted all day.  She heard from the Obama Justice Department, the ACLU and the Southern Poverty Law Center against the law, and the Alabama Attorney General’s Office supporting the law.  We were there out of concern for the status on religious freedom.  We were encouraged by what we heard. 

At the hearing, the lawyer for the Alabama Diocese of the Episcopal Church, the North Alabama Conference of the United Methodist Church, and the bishops for the Mobile and Birmingham Catholic churches argued to the court that her clients had standing, that is the right to bring a lawsuit, to challenge the law as a burden and restriction on religious freedom and church activities.  Immediately, Judge Blackburn challenged the lawyer’s position and she was unable to adequately defend it.  Her arguments were confused and off the point.  While it is always dangerous to predict what a court will do, we believe after the court hearing that the lawsuit of the churches will be dismissed. 

The issue of importance to churches and ministries in Alabama is whether the immigration law puts them at risk for criminal charges.  We have met with church groups and have sent out information that our position is that the law is not a threat to legitimate and normal ministry.  We believe the judge will take the same position. 

Judge Blackburn entered an order on August 29, 2011 that merely temporarily enjoins the operation of the law because it was to go into effect on September 1, 2011.  There are many complex issues involved in the case and the court needed longer to investigate those.  The temporary injunction will remain in effect until September 29, 2011, or until the court rules, whichever comes first.

In the meantime, we want to emphasize that churches should not operate out of fear and confusion.  When we wrote our July 2011 Educational Update, we gave a history of proposed amendments to the law which would have protected churches.  We concluded that the Alabama Religious Freedom Amendment (ARFA) would protect churches in any event.  We earlier opined that an Attorney General’s opinion might be necessary.  Because lawsuits were later filed, that was not possible.  However, Attorney General Luther Strange agreed with our position in his argument to the court, and that is even better.

We were pleased that Attorney General Strange personally argued the religious freedom aspect of the case.  He stated that ARFA provides significant protection to the exercise of religious rights, that the idea that you cannot engage in ministry, the sacraments and other activities is simply not true, and that the allegations of the plaintiff churches is “wildly out of perspective and overblown.”  Judge Blackburn’s comment was, “I totally agree.” 

During the hearing, Judge Blackburn read from an affidavit of one of the plaintiff churches’ witnesses that spoke of the fear of not being able to counsel a woman with a problem pregnancy and she might obtain an abortion, not being able to do marriage counseling or performing sacraments, etcetera.  Judge Blackburn ridiculed those comments and characterized them as misleading and disturbing to the public.  Those churches who filed the lawsuit and made those arguments were either or both sadly misinformed about religious freedom and constitutional law, and/or had other motives for their claims. 

We request our readers to share this information with their churches and other ministries.  If any have questions, concerns or want to discuss this further, they may contact the Southeast Law Institute.  We will report as soon as the court issues a more detailed order.  It may not be the end of the case and there will probably be appeals.  The case may go on for many months.  We predict, however, during and after that time churches and ministries will be able to operate without fear or obstacle.

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