The Expanded Jurisprudence of the Religion Clauses: Will the Sanctuary Movement Benefit?

A car left a farmhouse outside of McAllen, Texas at 3:00 a.m. and headed north to San Antonio on Highway 649. The car contained four passengers, two of whom were from El Salvador. The two Salvadorans had previously entered the country illegally and taken refuge at Casa Oscar Romero where food and shelter is offered to Central American refugees, regardless of the manner in which they enter the United States. The two refugees had gone to a nearby farmhouse with an interpreter, Stacey Lynn Merkt, for a newspaper interview. The interview took longer than expected and Ms. Merkt agreed to accompany the others to San Antonio so the interview could be completed. They chose to travel Highway 649, a secluded backroad, in an attempt to avoid the Border Patrol. They were not successful. Border Patrol agents stopped the car and Stacey Lynn Merkt was later convicted in federal district court of violating 18 U.S.C. §§ 2, 371 and 8 U.S.C. § 1324 (a)(2) by transporting, and conspiring to transport, two illegal aliens. The government had encountered the most recent manifestation of the sanctuary movement in the courtroom for the first time and the government prevailed.

Soon thereafter, John B. Elder, also a worker at Casa Romero, drove three undocumented Salvadorans six miles to a bus station in Harlingen, Texas. An Immigration and Naturalization Service (INS) agent later returned the Salvadorans to Casa Romero where they identified Mr. Elder. He was charged with unlawfully transporting undocumented aliens in violation of 8 U.S.C. § 1324 (a)(2). His motion to dismiss, based on religious freedom, was denied.

In Spokane, Washington, thirteen Salvadorans live on the grounds of a small Catholic church. Sanctuary workers provide them with food, clothing, and support. Other churches in the area contribute. The Salvadorans face possible deportation if the INS decides to act. The sanctuary workers face possible conviction for a federal felony. Yet, in spite of these possibilities, the movement continues to grow. It now includes over two hundred and fifty churches and several cities, including Los Angeles and Seattle. What is it that causes these people to take a stand which puts them in such a precarious position? Certainly a part of it can be found in the horrifying stories of murder, rape, and torture told by the refugees. Many of the people fleeing El Salvador are in desperate need of help. Christians throughout the nation are living out the Gospels, as they understand them, by providing sanctuary, even though to do so places them in conflict with their government. How should we deal with this issue, and the larger issue of religious freedom, in our society? We cherish liberty. We need order. A conversation I had with a sanctuary worker stimulated me to reexamine some basic principles underlying the jurisprudence of the Religion Clauses. The conversation, and the sanctuary movement as a whole, brought three basic issues into sharp focus. What should be the scope of the Free Exercise Clause? Why should we protect religious conduct? What degree of protection should be afforded religious conduct against government intervention?

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Ernest L. Rushing, The Expanded Jurisprudence of the Religion Clauses: Will the Sanctuary Movement Benefit?, 21 Gonz. L. Rev. 177 (1985).

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