5/1/2012 - May 2012 SLI Educational Update - Is Refining of the Alabama Immigration Law Good for Religious Freedom? - Part II
AN EDUCATIONAL UPDATE FROM
THE SOUTHEAST LAW INSTITUTE™, INC.
To: SLI Supporters
Date: May 2012
From: A. Eric Johnston
Re: Is Refining of the Alabama Immigration Law Good for Religious Freedom? – Part II
Since last year, our comments on Alabama’s immigration law have been numerous. Probably, we have spent more time working on this single issue, than on any other. Our concern is not for the immigration issue, but for how the law affects or does not affect religious freedom in Alabama.
Seldom does a legislative enactment intend to directly affect religious freedom or issues. An example of one that deals directly with the religious issue would be a bill in the Alabama Legislature which would permit the posting of the Ten Commandments in public places. That is an obvious intention of the legislature to deal with religion. More often, it is the collateral effect of a law that touches on religious freedom. That is the case with the immigration law.
As we have explained in past Educational Updates[1], the original HB56 did not have anything in it about religion. There were efforts to lobby an exception into the legislation, but those did not pass. Ultimately, we believe that was for the best. After HB56 was passed, a federal district court threw out the lawsuit of churches that the law burdened religious freedom. We agreed with that finding based on the U.S. and Alabama Constitutions’ religious freedom protections.
Notwithstanding these events, when the immigration law was placed back into the legislative process for amendments[2], HB658, some advocates wanted religious exceptions. The first was one suggested by the Attorney General. It mirrored federal law about permitting an undocumented alien to be a missionary to a church or religious organization in the United States. We commented on that in January preceding the legislative session, insisting it was not a wise move.[3] That provision was removed from the bill.
However, in its place, another onerous provision appeared which purported to protect religious freedom. The part of the law which was of concern to churches is Section 31-13-13, 1975 Code of Alabama, which deals with harboring and transporting aliens. Churches were concerned this might keep them from doing valid ministry. They believe the remedy for this, which is currently proposed in the bill, is:
“Nothing in this section would prevent a church or church-affiliated organization, or an agent of officer of the church or church-affiliated organization, from ministering to or providing material goods or services to all individuals, regardless of the immigration status.”
Obviously, this means to let churches engage in ministry activities. However, this language protects only churches and church-affiliated organizations. It does not protect stand-alone ministries, which are also constitutionally protected. More importantly, the problem with this is that under our constitutions, they already have this protection. The purpose of the immigration law is to deal with immigration and not with religion. If a law does not mention religion or attempt in anyway to define, regulate or affect it, then it raises no concern. However, once a law mentions religion and attempts to define, regulate or affect it in anyway, then it raises a question of the lawmaker’s intention. A simple immigration bill should deal with immigration. It should not deal with religion.
The legislature’s two recent attempts to deal with religion in the immigration law create an argument that religion is one of the purposes of the bill. By doing so, it raises legal issues of intent to define religious parameters of the law. If a law limits religious freedom, as this language does, it creates a constitutional challenge. The solution to this problem is to remove this language as well. No religious reference should be made in the law. If the sponsors of the legislation will not remove the offensive language quoted above, then at a minimum it should be prefaced with the following:
“In addition to the rights, privileges and immunities protected under the United States Constitution, Amendment One, Free Exercise Clause and the Alabama Religious Freedom Amendment, Alabama Constitution, Article I, Section 3.01 . . .”
This will at least recognize that the law does not intend to regulate religion. It recognizes that rights exist under the respective constitutional provisions. In conclusion, churches and religious organizations do not need to be addressed in the immigration law. It is an improper argument that was recognized by Federal Judge Sharon Blackburn in the court case hearing on HB56 and it remains an improper argument at this time.
[1] July, September 2011 and October 2011.
[2] Amending a law currently litigated in the courts is not a wise move. Both Attorney General Strange and bill sponsor Scott Beason have asked the amendment process stop. Once there is a court decision on the Alabama law, after the U.S. Supreme Court decides on the Arizona law in June, we would be better informed on changes to be made.
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