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10/3/2011 - October 2011 SLI Educational Update - Alabama's Immigration Law and Religious Freedom - Part III

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

To:                  SLI Supporters                                  

Date:               October 2011  

From:              A. Eric Johnston

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

 Our Educational Updates for July 2011 and September 2011 documented the progress of the “Beason-Hammond Alabama Taxpayer and Citizen Protection Act,” the law regulating unlawful immigration in the State of Alabama.  This law was passed in the regular session of the 2011 Alabama Legislature and was substantially to have gone into effect on September 1, 2011.  Three separate lawsuits were filed claiming the law was unconstitutional.

The United States Justice Department filed a lawsuit claiming federal law preempts states in the immigration area.  The Hispanic Interest Coalition of Alabama and others filed a lawsuit alleging the law violated constitutional rights of certain immigrants.  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 filed a third lawsuit claiming the law violated their religious freedom.  Chief Federal Judge Sharon Lovelace Blackburn combined all of the cases into one hearing on August 24, 2011, and entered rulings on the requests for preliminary injunctions on September 28, 2011, substantially upholding the law, but preliminarily enjoining several provisions.  However, for the church claims, she ruled against them. 

It may be good to procedurally understand where this case is in the process.  The lawsuits ask for “preliminary injunctions,” which would seek to enjoin the law from going into effect on September 1, 2011.  Following that, the judge would further consider the claims of the lawsuits and decide whether to “permanently enjoin” any parts of the law.  The first step of the preliminary injunctions has been taken.  These cases still remain in Judge Blackburn’s court and she will make additional rulings, with the filing of further pleadings and briefs and hearings.  There will be appeals to the 11th Circuit Court of Appeals for review.  It will take many months for all of this to transpire.  Because of the magnitude of the issue and decisions in other federal circuits, one or more of the Alabama cases could reach the United States Supreme Court.  This would delay the final decision even longer.

At the hearing on August 24, 2011, it was clear that Judge Blackburn did not give much credit to the claims of the churches.  This is fully explained in our September 2011 Educational Update.  We were hopeful she would completely dismiss that lawsuit.  However, since the lawsuits are only at the preliminary stage and there was no pending request to otherwise dismiss the churches’ lawsuit, it remains.   There is still little likelihood of success. 

In order to bring a lawsuit a plaintiff must have “standing.”  Standing means that the plaintiff can prove some injury of a legally protected interest that is concrete and particularized, and which is actual or imminent.  The churches claimed they could not enter into constitutionally protected “contracts” to perform marriages, baptisms, operate daycares and housing facilities, transport persons, or do other ministryThe court found no injury for which the churches could claim the need for relief and therefore would not have standing.  In other words, Judge Blackburn does not believe churches and ministries are threatened by this law.

Section 13 of the law would make it unlawful for a person to conceal, harbor, shield or transport an unlawful alien.  Judge Blackburn’s enjoined Section 13 in the Justice Department’s lawsuit.  She ruled there was a conflict between federal and state law.  Federal law does not criminalize concealing, harboring, shielding and transporting of unlawful aliens, while the Alabama law attempted to do so.  This created a conflict in the general area of immigration law and since federal law preempts state law, then federal law would apply and the state law could not.  Stated another way, Section 13 attempted to criminalize conduct specifically allowed under federal law.  The churches had argued in their lawsuit they would be unable to minister to unlawful aliens because of the fear that it might be criminal conduct under Section 13.  Now, since Section 13 does not apply as a result of the decision in the Justice Department’s lawsuit, churches should not have that fear.

This did not specifically reach the questions of concern of the churches.  We believe their angst was misplaced or, even, a ruse for attacking the law.  Even if Section 13 was enforceable, it would only affect criminal activity, that is, concealing, harboring, shielding or transporting unlawful aliens with the intention of circumventing the law.  This is not what churches or other ministries do.  But, if they do, the law should apply.

Frankly, we were disappointed Judge Blackburn did not follow through on her comments at the hearing and specifically rule on the churches’ claims.  Specifically, she did not agree with the churches’ fear that this law would interfere with ministry which is protected by the First Amendment to the United States Constitution and the Alabama Religious Freedom Amendment.  Both of these constitutional provisions provide significant protection to religious activities. 

Because this is a preliminary injunction and additional proceedings will follow, the churches’ lawsuit remains.  We again encourage churches not to operate out of fear but to continue with their normal ministry activities.  If any questions or issues arise, please contact us and we will be glad to provide assistance.  In the meantime, we will provide updates on the proceedings of these lawsuits. 

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