A DISCUSSION OF LAW AND JOURNALISM

Immigrants– and Christian Charity –Unwelcome in Alabama

By David M. Krisch

Sharon L. Blackburn, a federal judge in Alabama, has temporarily blocked a controversial state law that has been called the toughest immigration statute in the nation. The injunction will remain in effect until September 29, when the court will enter a ruling. Signed by Governor Robert Bentley, the Alabama law criminalizes those who knowingly employ, harbor, or transport people they know to be illegal immigrants.

In response to passage of the law, Alabama’s Episcopal, Methodist, and Roman Catholic churches have sued the state, arguing that the law is unconstitutional because it violates their First Amendment right to free exercise of religion. The churches argue that the law criminalizes core practices of Christianity such as providing food, clothing, shelter, and transportation to the needy.

The bible, you see, does not differentiate between citizens and non-citizens when it comes to helping the needy.

While nearly every blog and news network ran something about this story, nobody has yet analyzed the likelihood of success for the churches’ claim. We will.  

The Supreme Court has handled cases of this nature since as far back as 1879, when it decided the constitutionality of the Morrill Anti-Bigamy Act, passed by Congress in 1862. The act outlawed polygamy, and Mormons argued that it was unconstitutional because it deprived them of their First Amendment right to freely practice their religion. A Mormon plaintiff, who ignored the statute, was indicted, and the Utah Supreme Court upheld the indictment. When the case reached the United States Supreme Court, the Court held that duties of a religion were not a suitable defense to a statute. “Religious belief cannot be accepted as a justification of an overt act,” the opinion said. With this reasoning in mind, even though helping the needy (an overt act) is a pillar of Christianity, religious mandates are not a suitable defense to the Alabama law.

Over a century later, in 1990, the Supreme Court heard a similar case, and came to the same conclusion. In Employment Division v. Smith, the Court upheld an Oregon drug law against a challenge by Native Americans who sought a religious exemption from the prohibition on the use of peyote, a drug known for its psychoactive properties when ingested. Native Americans utilized peyote as a  “sacred medicine,” which was used to combat spiritual, physical and other social ills. The Court said that since the Oregon law did not intentionally target Native Americans’ religion or culture, the law was constitutional. Likewise, the law in Alabama outlaws all harboring of illegal immigrants, by all Alabamans, religious and non-religious groups alike. Based on case law then, since no religion has been targeted, the law will likely be upheld.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to ensure that general laws, like the one at issue in Smith, do not restrict the practice of religion. RFRA required state governments to put forth a compelling reason for the general law before it could infringe on a religious practice. But in City of Boerne (1997), the Supreme Court found RFRA to be unconstitutional because it exceeded Congress’s power under the Enforcement Clause of the 14th Amendment of the Constitution. The Court found, because there was no detailed example of religious bigotry necessitating RFRA, the stringent requirements under RFRA infringed upon traditional powers of the state to regulate the health and welfare of their citizens.

So far, then, things aren’t looking good for the Alabama churches in this case, but we think they have a chance if they concentrate on the Supremacy Clause of the U.S. Constitution.

The Supremacy Clause says that the U.S. Constitution and federal statutes are “the supreme law of the land”; when a federal and state law conflict, the federal law controls. In 2000, the Supreme Court ruled in Crosby v. National Foreign Trade Council that even when a state law is not in direct conflict with a federal law, the state law can still be found unconstitutional under the Supremacy Clause if the state law is an obstacle to the objectives of the federal government. In the case against Alabama, the churches could argue that the Alabama law is invalid under Crosby because the state law is regulating illegal immigration in a way that is at odds with the federal government’s regulation of illegal immigration.

We’re not saying this argument’s a winner, but it could be worth a shot.

After all, another southern judge saw it that way.  In Georgia, HB 87, a law similar to Alabama’s immigration law, was partially blocked by federal judge Thomas Thrash, Jr. Although he allowed portions of the law to go into effect, he blocked the most controversial clauses, which included one that, like Alabama’s, would punish people who knowingly transport or house illegal immigrants. The judge reasoned that the federal government is the body with the power to deal with illegal immigration, not the state.

Comments

6 Comments »

6 Responses

  1. AmericanPieHole says:

    We either have immigration laws or we don’t. If we do then seek them out, prosecute them, confiscate their wealth and deport them. If we don’t then there is no need for a discussion.
    It is the maybe we do and maybe we don’t that makes this issue complicated becuse there is no solution.

  2. Delaware Bob says:

    If they don’t like this Alabama law, what would they suggest to get rid of all the illegal aliens, the ones who have no right to be in this country. Yes, what would you suggest?

    Let’s face it. Our Federal Government has failed all of us in not enforcing our immigration laws. Look at how many anchor babies, (illegal alien children), the American taxpayers have paid for. Was it about 4.2 million over the last 16-18 years? Maybe this is something that should be written about. Then we have to school these illegal alien children, the parents (parent) goes on welfare, get food stamps, public housing and everything else. What does this cost the American taxpayer? How about the stolen identities, forged documents and fake green cards. Well, you can’t blame the illegal aliens completely. We do have these UNAMERICAN people who hire these illegal aliens. Of course we have these illegal alien students who are DEMANDING we pass the DREAM Act so we can pay for their college tuition. How about the demonstrations of these illegal aliens DEMANDING we give them amnesty. Who do these people think they are? They have no right to be in this country, yet they are DEMANDING! Yes, DEMANDING we give them amnesty. Well, I am DEMANDING we get our immigration laws ENFORCED! Look at the costs of deporting these illegal aliens. Look at the costs of the trials and jailing of these illegal aliens. Look at the costs of the law suits by la raza and the aclu. Oh, don’t forget the Catholic Church. When is this all going to end? I will tell you. It will end when we get rid of all the illegal aliens. That’s when.

  3. Mack says:

    Big Religion, the hierarchy of any church, is like any other Special Interest Group, just follow the money. Most Special Interest Groups are only concerned for “their” agenda of profit and/or power, not the people they attempt to speak for or save from harm. Something about living in a Glass House, the Churches should be able to clean their own house before they tell others what they are doing wrong! Of course they are expecting money to flow in from “our” Federal Government, Citizen Taxpayers, to assist with their Big Religion ministering to the ILLEGALS or they just may receive some funds from the ILLEGAL EMPLOYERS who benefit financially from their ILLEGALS! Doubtful they will get any monetary help from the ILLEGAL EMPLOYERS of course expect the United States Taxpayers to pick up the bill for their ILLEGALS while they soak up all of the PROFIT, you have to admit the SOAKING of United States Taxpayers is good.

  4. Dave Francis says:

    MAKE A COMMITMENT TO AMERICAN WORKERS.

    Texas Governor Rick Perry even though a front runner in the race for the White House, he has infuriated the TEA PARTY because of his pandering to illegal immigrants. His negative policies on many issues including the mandated vaccination on school age girls, as a preventative measure against cervical cancer. Then his dialog on Social Security and immigration has blown up in his face, specially his standpoint on the illegal alien invasion. Perry is more or less complicit with the Democrat and Liberal progressive on trying to pass another amnesty and then being against construction of the border fence. In a 2006 gathering of Mayors in Austin, Texas, Rick Perry stated,” that building a wall along the border with Mexico is a “preposterous” idea.” This was after prior President Bush had signed into law the 2006 Secure Fence Act”

    In a second private discussion in New Hampshire, he was asked if he was against the border fence and then confirmed in a similar statement.” “No, I don’t support a fence on the border,” he said. “The fact is, it’s 1,200 miles from Brownsville to El Paso. Two things: How long you think it would take to build that? And then if you build a 30-foot wall from El Paso to Brownsville, the 35-foot ladder business gets real good.” The trouble is Rick Perry hadn’t obviously read about the original border fence design, which was drafted by Rep. Duncan Hunter of California. Currently the border fencing is just one single strand, that is still not completed, of which initial concept were two parallel fences and stretching 700 miles along the United States/Mexican border, not the 350 miles we have today. The majority of Democrats voted against the bill, but as a Senator–Obama, a Democrat from Illinois, including his now Vice President Joe Biden (D-DE) backed its passage, drawing irate criticism from the open border zealots.

    Perry did say that alternatively, that there was a need “for boots on the ground” and more technology that includes and patrolling unmanned drones. This is not what the Constitutional TEA PARTY wants to hear and I’m sure that he will get a earful in the September 22 audience, as the presidential candidates come together for another debate. Both Michele Bachmann and Herman Cain don’t see illegal immigration in the same way as Perry. The fence needs to be constructed as originally intended, as a double layer fence with room in between for high speed interdiction by the border patrol. If the Border agents were supplemented 3000 to 5000 armed soldiers along the border, both drug smugglers, illegal aliens and criminal crossings would be reduced to a trickle. Perry also introduced a Texas “Dream Act” that would allow the children of illegal aliens to be provided with taxpaying based education. Not only would this further encourage families with children and babies, to arrive illegally on our doorstep—but promote hundreds of thousands of more people entering America through CHAIN MIGRATION.

    In the first amnesty millions more came through CHAIN MIGRATION policies, which brought families members here, copiously expanding a need for SSI and other welfare programs. We cannot keep collecting people through CHAIN MIGRATION, because of the costs, when the initial sponsor stops financially supporting. Same with illegal alien women—ready to conceive—a baby intentionally brought to our nation, so they can apply for welfare and other public entitlements. That the female knowing that once she gets here everything is free, from hospital to child programs as TANF and other taxpayer benefits. Everybody who reads the press articles that taxpayers are looking at $113 billion dollars annually, of the pay-out to the illegal aliens—is still spiraling upwards. Why in this recession, when millions of American workers are out-of-work, are we still subsidizing people who shouldn’t be here?

    How much of this money such as IRS child tax rebates are payouts of criminal fraud. How it is illegal aliens are even paying income tax, when they don’t even exist on Social Security data bases? How come it’s not a felony to cross into America, without permission? Many states including Alabama, Georgia and Arizona have been forced to pass immigration policing laws, to interrupt the huge cost of public assistance to foreign nationals, which the Congress has failed to do.

    Perry Immigration record is dismal, so it’s unlikely he will be supported by the majority of the TEA PARTY. I wonder how Rick Perry stands on Lamar Smith’s Legal Workforce Act, which mandates E-Verify countrywide, or the Secure Communities policing program?
    URGENT AND IMPORTANT
    The permanent E-Verify bill H.R.2885 is already being demonized by the Left, because is success rate is now gaining popularity amongst honest business owners. Thousands of concerned companies have signed on to the E-Verify enforcement program and the voting public can adamantly voice their Senate or House, to sponsor the bill by calling the Washington switchboard at 202-224-3121—TODAY.
    Please call your Rep. if he/she is a Member of the House Judiciary Committee and urge clean passage of the Legal Workforce Act. The Capitol Switchboard number is 202-224-3121. A list of Judiciary Members and their direct office phone numbers is below.
    *****************************************
    Rep. Adams, Sandy (GOP)
    (202-225-2706)
    Rep. Chabot, Steve (GOP)
    (202-2225-3012)
    Rep. Chaffetz, Jason (GOP)
    (202-225-7751)
    Rep. Coble, Howard (GOP)
    (202-225-3065)
    Rep. Forbes, Randy (GOP)
    (202-225-6365)
    Rep. Franks, Trent (GOP)
    (202-225-4576)
    Rep. Gohmert, Louie (GOP)
    (202-225-3035)
    Rep. Goodlatte, Robert (GOP)
    (202-225-5431)
    Rep. Gowdy, Trey (GOP)

    (202-225-6030)
    Rep. Griffin, Tim (GOP)
    (202-225-2506)
    Rep. Issa, Darrell (GOP)
    (202-225-3906)
    Rep. Jordan, Jim (GOP)
    (202-225-2676)
    Rep. King, Steve (GOP)
    (202-225-4426)
    Rep. Lungren, Dan (GOP)
    (202-225-5716)
    Rep. Marino, Tom (GOP)
    (202-225-3731)
    Rep. Pence, Mike (GOP)
    (202-225-3021)
    Rep. Poe, Ted (GOP)
    (202-225-6565)
    Rep. Quayle, Ben (GOP)
    (202-225-3361)
    Rep. Ross, Dennis (GOP)
    (202-225-1252)
    Rep. Sensenbrenner, James (GOP)
    (202-225-5101)

    The toll-free number for the Capitol switchboard is 1-888-262-0265.

    After President Obama speech to the nation, to revitalize jobs for hurting Americans. His emphasis was on repairing bridges, roads, schools and other infrastructure. We must have a guarantee that no illegal aliens get these jobs, by the passage of H.R. 2885, as the mandated E-Verify pledge. There is no possible way, as a Conservative as myself can cover all the facts, as the Liberal press suppresses my articles and comments. This affects every race of working American people from Hispanics, Blacks Whites and people of other descent. So I revert to the factual substance found on such websites as NumbersUSA, Judicial Watch and American Patrol. Each website is specifically designed to contain certain issues on illegal immigration. NumbersUSA offers information on immigration grading, for the 2012 presidential race and Washington insider sources. American Patrol site has a daily investigation of mostly illegal immigrant articles in national and local press. Judicial Watch content introduces the reader to the corruption exercised in Washington and the 50 states.

  5. willem says:

    AmericanPieHole –
    what do you mean “confiscate their wealth”? The whole point of the lawsuit is that some of these people are really poor and hungry. It’s not a question of taking away their Google shares.

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