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2/13/2012 - January 2012 SLI Educational Update - Is Refining of the Alabama Immigration Law Good for Religious Freedom? - Part IV



 To:                  SLI Supporters                                  

Date:               January 2012  

 From:              A. Eric Johnston

Re:                  Is Refining of the Alabama Immigration Law Good for Religious Freedom? – Part IV

 Since HB56 was signed by the Governor on June 9, 2011, there has been nonstop legal activity and political and editorial comment.  The law was to go into effect on September 1, 2011, but was partially preliminarily enjoined by the Federal District Court in Birmingham on September 28, 2011.  An appeal followed to the 11th Circuit Court of Appeals in Atlanta, where additional portions were temporarily enjoined and it is set for further review there. 

 At the same time, the U.S. Supreme Court granted review of Arizona’s immigration law, which is similar to Alabama’s.  Oral arguments before that court will probably be heard in April 2012.  While the court opinion will have an effect on Alabama’s immigration law, it will not end the litigation.

 In the meantime, the Alabama legislative session begins on February 7, 2012.  A number of bills will have been pre-filed ranging from repealing the law to amending various provisions.  Some of those will seek to make necessary adjustments demonstrated by court orders and actual practice.  There will be much pressure on the Alabama Legislature to take some legislative action.

 We have addressed the religious liberty aspects of the immigration law in three of our Educational Updates.[1]  We write again about the issue because the upcoming legislative session could adversely affect religious freedom. Efforts to find exceptions for church and ministry activities would be difficult and could result in actually restricting or burdening those activities.  We have argued that the Free Exercise Clause of the First Amendment and the Alabama Religious Freedom Amendment (ARFA) protect churches from criminal prosecution.  The Legislature may again attempt to find exceptions due to pressure from the United Methodist, Episcopal and some Catholic churches and others.  Their concerns are misdirected and we are concerned they may have other motives.

Recently, legislative leadership asked Attorney General Luther Strange for suggested revisions to the immigration law.  The Attorney General responded with a memorandum, which included a recommendation to “create an exception for religious activities that mirrors federal law.”  The law in the mirror, USC § 1324(a)(1)(c), says:

“It is a violation [to transport, harbor, conceal, etcetera, aliens] except where a person encourages or induces an alien to come to or enter the United States, for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow or enable an alien who is present in the United States to perform the vocation of a minister or a missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.”

Trying to read this is like reading it backwards in a mirror.  It is difficult to interpret and appears to address only activities as a minister or missionary.  It does not address other religious activities.

We have written the Attorney General requesting that he stick with the legal arguments he made before the Federal District Court relying on the Free Exercise Clause and ARFA.  To make one specific exception raises the question of whether it is meant to be a limitation on religious activity, rather than a protection of religious activity in general.  We explained to the Attorney General that churches and religious ministries engage in myriad activities which are difficult to conclusively define.  Suggesting a protection for some of those activities could raise a problem for other activities. 

 We have consistently argued that if a church is actually engaged in unlawful activities of transporting, harboring, concealing, etcetera, aliens, then it is subject to the law.  Churches and ministries engaged in legitimate activities have no fear.  Our primary concern is that attempts to amend the immigration law for religious freedom may result in just the opposite.  Secondarily, we are concerned that some may attempt to use the legislative process to introduce religion related amendments for less than altruistic purposes. 

We urge legislators, as well as others who are involved in the effort, to appreciate the fine points of constitutional law on religious freedom and not be amenable to suggestions on how religious freedom may be protected through amendments to the law.  Many wolves will come wearing sheep’s clothing with the apparent best of intentions.  We will make ourselves available to legislators for advice and assistance.  As always, there is no charge for our services.  We have no objectives other than protecting religious freedom.  Our duty is to constitutional religious freedom and how that allows the church to propagate its doctrine and minister to our needs.

[1] July 2011, September 2011 and October 2011.


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