Monthly Archives: February 2017

When Guadalupe Garca de Rayos was detained by Immigration and Customs Enforcement in Mesa, Ariz., after the most recent of her mandated check-ins with the agency, her lawyer, Ray Ybarra Maldonado, was furious. On a conference call, Maldonado said that ICE had lied to him and that he would advise anyone in Rayoss shoes to seek sanctuary in a church instead of turning themselves in.

Rayos considered that option. Understanding that the check-in might pose a new risk during the Trump administration, allies suggestedthat she do so. She declined, opting instead for going to Mass and praying before she went to the ICE office.

She was deported to Mexico, leaving her two children behind.

Seeking sanctuary at a church would not have offered as much shelter as you might assume. Many of us are familiar thanks to The Hunchback of Notre Dame with the concept of taking refuge in a place of worship as a way to avoid civil authorities. While this was a doctrine that existed in some places in the past, it was never instituted by American colonists, and it is not the case now that someone hoping to avoid arrest can be assured of protection in a house of worship. (Nor is it the case that sanctuary cities offer protection from detention by federal immigration authorities, as recent raids have made clear.)

There is, however, a reason that Rayoss attorney recommended seeking refuge in a church. David Leopold, an immigration attorney from Cleveland and former president of the American Immigration Lawyers Association, pointed to a 2011 memorandum from then-ICE Director John Morton. It established that ICE would not conduct enforcement actions in enumerated sensitive locations: hospitals, schools, the site of a wedding or funeral, during a demonstration or at a place of worship.

It wasnt impossible to conduct such an action; it was just that any enforcement in one of the places on the list mandated approval from a top ICE official before proceeding (except in the case of an emergency).

What makes places of worship uniquely appealing on that list, of course, is that they alone are part of the long tradition of seeking sanctuary. The concept, established more than 1,700 years ago in the Theodosian Code of A.D. 392, upholds tenets offered in the Bible. Exodus 22:21 part of the delineation of laws following the Ten Commandments implores readers to not mistreat or oppress foreigners. Deuteronomy 27:19 declares that those who deny justice to foreigners, orphans and widows should be cursed.

Churches, in other words, may act to protect immigrants out of a sense of religious obligation. And that is where things might get tricky for the Trump administration.

Last week, a draft executive order that was circulating in the White House was leaked to the media. Titled Establishing a Government-Wide Initiative to Respect Religious Freedom, the draft document sides strongly with recent efforts to support the role of religious beliefs in commercial and legal interactions. The draft order focused on political issues that have been at the heart of that conflict, such as same-sex marriage and contraception. But it was a clear indicator that the administration supported a broad interpretation of religious freedom rights.

The most noteworthy case on this subject was Burwell vs. Hobby Lobby, determined in favor of the retail chain by the Supreme Court in 2014. Five justices agreed that the provisions of the 1993 Religious Freedom Restoration Actmeant that Hobby Lobby could not be forced to cover contraception in its health insurance for employees, despite such a mandate in the Affordable Care Act.

Liz Platt is the director of the Public Rights/Private Conscience Project at Columbia Law School. When we spoke by phone Friday, she suggested that the new breadth of accommodation for religious liberties might make the issue of offering sanctuary trickier. She noted that offering sanctuary to immigrants living in the country illegally has been challenged in the courts previously, with the religious motivations behind the effort playing a muted role.

During the 1980s, a number of religious institutions were helping people fleeing violence in Central America to travel illegally through the United States. Some of those participating in the effort were arrested, and, among other things, the question was raised of whether the arrests violated their First Amendment rights to free religious practice. They lost.

The courts did something that would never fly today, Platt said. The courts questioned whether their religious beliefs were really being burdened. They had some clergy members come in and say, Actually, theres no reason why under Christianity you would need to do this.

Under the Supreme Courts decision in Hobby Lobby, by contrast, they were super deferential to the claimants who said that their religious rights had been burdened, she continued. Under this much, much greater deference to the religious objector and much expanded right to a religious accommodation, I think its certainly a possibility that those cases could come out the opposite way today.

The new, much, much broader of right to religious exemption thats provided under RFRA is going to really give them a chance to relitigate the question of sanctuary, Platt said. She noted, too, that religion might not even be the only boundary, if the leaked executive order is any guide. The document contained protections not only for religion, but also for conscience, she said. This raises the prospect of someone harboring an immigrant in their home, challenging prosecution by citing their conscientious decision to do so.

The issue of punishment for those offering sanctuary is key. Since sanctuary isnt a legal doctrine, those who offer it to immigrants in the country illegally are putting themselves at risk under statutes outlawing the harboring of undocumented immigrants. Federal code bars transporting people known to be in the country illegally or concealing, harboring or shielding those known to be undocumented in any place, including any building or any means of transportation. That includes places of worship.

Leopold, the immigration attorney, agreed that there might be a tension in the administrations likely priorities. Theres an inherent conflict between the harboring statutes and religious freedom in this country, he said. He said he suspects that this could become a significant issue under Trump, thanks in part to his attorney general.

The law is very broad. And thats my fear, Leopold said. My concern is that you have an attorney general in Jeff Sessions who is anti-immigrant. At this point, hes the chief law enforcement officer in the country, and he can use the criminal statutes to prosecute people for harboring.

The penalty for being convicted of harboring someone known to be in the country illegally is five years in federal prison.

The prohibition against raiding places of worship, as outlined in 2011, is a memorandum that could be overturned at any point. Theres another reason that ICE is disinterested in launching raids at places of worship, of course: aesthetics. No head of a government agency wants to have to explain to the public why there were photographs of a priest being lead to a police vehicle in handcuffs.

I think that if Jeff Sessions begins to prosecute people for harboring I think theres going to be hell to pay, Leopold said. I think people are going to recoil at any prosecution of a church or a religious figure or parishioners for doing what they believe is their religious duty.

He compared it to recent protests at airports over Trumps immigration ban. Its the same response that you see when people get off airplanes and are detained at the airport suddenly because they have a passport from a Muslim country, he added. I think youll see the same thing if you see the government going into a place of worship.

Leopold and Platt suggest that the conclusion to any debate over sanctuary might end the same way, in court. If so, the Trump administration may be torn between what it prioritizes more: its ability to deport immigrants in the country illegally or the right of religious Americans to stand in their way.

Continued here:

The looming conflict between Trump's immigration sweeps and ... - Washington Post

National Review writer Alexandra Desanctis on Wednesday published a piecepurporting to explain how recent conservative efforts to defend religious freedom arent really about discriminating against LGBT Americans. Since she used aSalon piece written a day earlier by a former colleague of mine, Nico Lang, to illustrate how liberals are maliciously mischaracteriz[ing] FADA and other religious-freedom protections, it seems only fair to issue a point-by-point response to the specious claims made in theNational Review.

It is deeply ironic to claim, in the pieces opening argument, that Lang is deliberately mischaracterizing these legislative and executive efforts, when Desanctis goes on to misrepresentalmost every legislative and executive action she discusses.I cant speak to any malicious intent of the author, but a cursory examination of her contemporaries reveals a lopsided tendency to use religion to justify anti-LGBT discrimination,then fall eerily silent when the religious freedom of non-Christians is threatened.

Desanctis complains that Lang betrays his biases immediately, by putting the phrase religious freedom in quotes. But Lang, a seasoned reporter Ive worked with in my former capacity as managing editor of The Advocate,is on solid journalistic ground here.The weaponizedkind of religious freedom at issue in President Trumpsdraft executive order is preciselythe modern mutation ofthis foundational principle,which undoubtedlydeserves to be placed in scare quotes, as publications ranging from New York magazine to the Wall Street Journal do.

The authors complaints about Lang willfully misrepresenting the facts are particularly laughable in the face of the outright falsehoods Desanctis offers in response. Most immediately and demonstrably, Desanctis impliesthat religious freedom bills and the executive order are concerned only withmarriage. And while the Supreme Courts 2015 ruling inObergefell v. Hodges did directly deal with marriage equality (tossing a single sentence in Justice Kennedys masterful opinion to the anti-equalityconcerns of religious objectors), nearly every legislative effort billed as a protection of religious liberty since then has reached far beyond the county clerks office.

Desanctis herself mentions the First Amendment Defense Act (FADA) as one prominent example of legislation introduced to protect religious Americans who believe in heterosexual marriage. Apart from neglecting to note that FADA does not protect religious Americans who believe in marriage equality(because they do exist), Desanctis declines to mention that the bill, as introduced last year, included provisions that would allow faith-based discrimination against LGBT people, single mothers, and people of minority faiths.

Given that Texas senator and Tea Party favorite Ted Cruz has already promised to reintroduce FADA, and like-minded legislators are in turn salivating at the friendliness of the new administration to their concerns,its dishonest to suggest that any future iteration of FADA would be more limited in scope than the sweeping bill introduced last year.

Desanctis claims that religious-liberty legislation offers First Amendment protections to those Americans who hold a different view of marriage from that of the government, which is, in a limited sense, true. But these bills pointedly do notprovide First Amendment protections for those Americans whose faith-informed view of marriage differs from the government in, say, the number of spouses a person should be allowed to have, or with respect to the gender, age, or religious affiliation of the betrothed.

Similarly, Desanctis argument falls apart when she tries to follow the claim to its logical end. Certainly, she contends, it should be legal for a Christian baker to refuse to bake acake for a same-sex wedding, but that same baker should be required to bake a birthday cake for the same client.

But what if the birthday cake is for a child with same-sex parents? Under the draft executive order, a baker would be entirely within his right to refuse to bake that childs cake because the child did not emerge from the particular type of union that the baker finds morally acceptable.

Not only doreligious freedom bills in general concern themselves with more than justmarriage, buteven the leaked draft order does so as well,explicitly targetingthe validity of transgender identities by claiming that gender is an immutable characteristic defined by biology, anatomy, and a doctors declaration at birth. Bydefinition, the Americans who reject this biological essentialism are those who have experience with someone (or perhaps are themselves someone) whose gender identity differs from that which they were assigned at birth. Everyone elseindeed, the vast majority of Americansare unlikely to critically analyze this provision, since most peoples sex assigned at birth corresponds with their internal sense of gender identity. This fact, however, has no bearing on the continued existence of trans people in America.

The draft order goes even further to enshrine what is essentially conservative Christian ideology into federal policy when it declares that life begins at conception. This is, of course, a well-worn argumentused by anti-abortion advocates, butthere isnt anything even close to scientific consensus on this question. Once again, the executive order carves out protections for Americans who hold this particular religious belief about the beginning of life, but offers no accommodation for Americans whohave differing and sincerely held religious convictions about the point when life begins.

Its hard to single out one particular claim that emerges as the most absurd in the piece, but the allegation that the truth has been obfuscated by the left may well take the cake(just not to a gay wedding, of course). After directly equatingreligious Americans and religious voiceswith the voices of conservative Christian Americans, Desanctis performs an impressive bit of rhetorical acrobatics.

These supposed social-justice warriors will never admit the truth, she writes. That there isnt a single U.S. law permitting discrimination against individuals based on sexual orientation.

Talk about obfuscation. It is true there is no federal or state lawthat says its OK to turn away the gays if God saidyou could, but theres also no federal lawprotecting LGBT people from discrimination in the workplace, in housing, in healthcare, or in public accommodations. That bears repeating, since nearly70 percent of Americans believe its already illegal to fire someone for being LGBT.

But in reality, there is no federal law thatbarsemployers, landlords, or business-owners from refusing to hire, rent to, serve, or promote someone based on their sexual orientation or gender identity. Some states and localities have passed laws and ordinances that prohibit discrimination based on those characteristics, but those have faced stark opposition and backlashmost notably in the case of North Carolinas transphobic House Bill 2, which was drafted and passed in direct response to Charlottes city council updating its nondiscrimination ordinance to include LGBT people.

To be clear: in 30 states, it is expressly legal to fire someone because they are transgender. In 28 states, an employee could marry their same-sex spouse on Sunday, then be fired on Monday for putting a wedding photo on their desk. These arent hypothetical dilemmasreal people lose their livelihood every year because a supervisor didnt approve of their sexual orientation or gender identity.

So while Desanctis points out that there is currently no law directly approving anti-LGBT discrimination, the policies shes advocating for in her piece would change all that. The draft executive order, FADA, and similar religious liberty efforts nationwide would create a blanket license to discriminate, provided one claims their sincerely held religious belief has been offended. But even here, its important to note that the word religious is intended to mean conservative Christian.

Here is the original post:

Sorry, National Review: Religious Freedom Bills Do Permit Bigotry ... - Religion Dispatches

A spokesman for Theresa May said: It is not, never has been and never will be the policy of the government to restrict the freedom of investigative journalism or public whistleblowing. Photograph: Andrew Parsons / i-Images/Photoshot/Avalon/Avalon

Downing Street has insisted the freedom of investigative journalists and whistleblowers will not be restricted, after the Law Commission published plans suggesting that maximum jail terms for those leaking information should rise from two years to 14.

No 10 said it was incorrect to suggest that either group would face greater threat of prosecution as a result of the new proposals, which have been condemned by prominent whistleblowers and civil rights groups.

Theresa Mays official spokesman said: Ive seen the way this has been reported and it is fundamentally wrong. It is not, never has been and never will be the policy of the government to restrict the freedom of investigative journalism or public whistleblowing.

One of the points of this review is to consider whether more safeguards are required to protect public sector whistleblowers and journalists.

Asked whether journalists could face jail for reporting leaked information, he said: We will not do anything to restrict the freedom of journalists.

The governments legal advisers were accused of launching a full-frontal attack on whistleblowers on Sunday over the proposals, which recommend radically increasing prison sentences for revealing and handling state secrets.

Draft recommendations from the legal advisers say the maximum prison sentence for leakers should be raised, potentially from two to 14 years, and the definition of espionage should be expanded to include obtaining sensitive information, as well as passing it on.

Media organisations and civil rights groups have also expressed alarm at the Law Commissions assertion that they were consulted over the plans, when they say no substantial discussions took place.

The Guardian, the human rights group Liberty and campaign body Open Rights Group are among a series of organisations listed by the Law Commission as having been consulted on the draft proposals, but all three say they were not meaningfully involved in the process.

The Law Commission says on its website that in making the proposals, it met extensively with and sought the views of government departments, lawyers, human rights NGOs and the media. The law commissioner, Prof David Ormerod QC, said: Weve scrutinised the law and consulted widely with ... media and human rights organisations.

But Liberty said that while a meeting was held, it was not on the understanding that this was a consultation. A source said: Liberty do not consider themselves to have been properly consulted. And we will be responding in detail to the [public] consultation.

Cathy James, the chief executive of Public Concern at Work, was also surprised to see her the whistleblowing charity listed as being involved.

She said: I didnt actually know we were listed in the document as we have been working our way through it so it is a big surprise to me. I believe my colleague met with them initially but we were not consulted in the normal sense of the word consultation. That is not what happened.

We are very worried about the extent of the provision in the recommendations both for whistleblowers and public officials. Its a huge backward step and we are very worried.

A Law Commission spokesman told the Guardian: We are currently conducting an open public consultation on the protection of official data, including the Official Secrets Acts.

We are seeking views on how the law could meet 21st-century challenges while also ensuring people dont inadvertently commit serious offences. Our provisional proposals make a number of suggestions to improve the current laws around the protection of official data, and we welcome views.

Read the rest here:

No 10 denies plans would curb freedom of journalists and whistleblowers - The Guardian