Aid for Immigrants on
Desert Trek Stirs Religion-Freedom Fight
By Jacob Gershman
Dec. 6, 2018 5:30 a.m. ET
‘Trespasser’ group in court trying to toss federal charges
over their relief effort
In one of the most
desolate corners of the country, a new and closely watched battle over
religious rights has taken root.
A federal magistrate judge in Arizona is deciding whether a
group of border-aid volunteers accused of trespassing on a national wildlife
refuge near Mexico has a religious right to help immigrants making dangerous
treks across the Sonoran Desert.
The dispute first surfaced in the summer last year deep
inside the Cabeza Prieta wilderness, an expanse of
sun-scorched valleys and lava-capped mountains sharing a 56-mile border with
Sonora, Mexico. Home to rattlesnakes, lizards and desert tortoises, the land
has been described by federal wildlife officials as “the loneliest
international boundary on the continent” and “incredibly hostile to those who
need lots of water to live.”
The nine defendants—mostly 20-something volunteers for a
relief group associated with the Unitarian Universalist Church of Tucson—admit
they lacked permits when they ventured into the desert in pickup trucks loaded
with jugs of water and cans of beans. But they argue that they were on a sacred
mission to save human lives.
With the advice of Ivy League law professors, their defense
lawyers have sought to throw out the misdemeanor charges based on a 25-year-old
federal law protecting religious liberty, the same statute that helped
Christian conservatives challenge the Affordable Care Act’s contraception
coverage requirements during the Obama administration.
The defendants say they didn’t get permission to enter the
refuge because of new rules adopted by the U.S. Fish and Wildlife Service
forbidding Cabeza Prieta visitors from leaving behind
food, water bottles, blankets, medical supplies or other personal possessions.
Defense lawyers assert that the restriction on relief supplies—adopted by the
Trump administration in July 2017—is part of a crackdown on border relief
efforts. A defense motion quotes a text message from a Border Patrol agent
referring to the volunteers as “bean droppers.”
Larger than Rhode Island and lacking border fences, the
Cabeza Prieta refuge has been an active and lethal
corridor for migrants and smugglers. Since 2017, the skeletal remains of more
than 40 people have been found in Cabeza Prieta,
according to migrant mortality data collected with the help of Pima County’s
medical examiner office.
A central question in the case is whether the defendants are
protected by the Religious Freedom Restoration Act, signed by President Clinton
in 1993.
The law expanded religious protections beyond the First
Amendment and its guarantee of the right to practice one’s faith free of
government interference. Under the statute, the federal government may not
hinder a person from exercising sincerely held religious beliefs without a
compelling and unavoidable reason.
Department of Justice lawyers say enforcement of the permit
rules serves important government interests: protecting the wilderness
character of Cabeza Prieta—the third largest national
wildlife refuge in the continental U.S.—and deterring illegal immigration.
Accommodating the relief workers would lead to a flood of religious-exemption
requests that would create regulatory chaos and threaten wildlife, the
government has argued.
Prosecutors have also questioned whether the defendants’
relief missions are truly religious in nature, suggesting the defendants were
motivated by political or “purely secular” philosophical concerns.
No More Deaths, the aid group organizing the missions, is a
ministry of the Unitarian Universalist Church of Tucson, which describes itself
as a non-creedal, spiritually diverse religion united by shared values.
To counter the government, the defendants submitted sworn
declarations describing their faith.
Logan Hollarsmith, a carpenter
from New Orleans, said he’s learned lessons of compassion in the teachings of
Jesus and Buddha. When he’s not living in a wooden shack he built in the
backyard of a friend, he’s traveling the globe on humanitarian missions, most
recently to a storm-ravaged island near Puerto Rico. “My spirituality is not
abstract. It is as real as my hammer and my truck and my hands,” he told the
court.
Defendant Scott Daniel Warren, a cultural geographer at
Arizona State University, said he views Cabeza Prieta
as a sacred place. “It’s a graveyard. And just the act of moving through that
space, that place, to me is a deeply spiritual experience,” he said. Mr. Warren
is separately battling a felony charge of harboring two migrants in the country
illegally.
Courts have been reluctant to define the boundaries of
faith—up to a limit. A federal appeals court in 2016, for example, ruled
against a Hawaii man charged with distributing marijuana who claimed he had “a
divine command to spread cannabis far and wide.”
In recent years, the religious freedom law has led to legal
victories for the political right, most notably in the Supreme Court’s 2014
decision in the Hobby Lobby case. In that case, the evangelical Christian
owners of an Oklahoma City arts-and-crafts chain objected to providing
insurance coverage for contraceptives, arguing that it compromised their
religious beliefs by making them morally complicit in “the death of [an]
embryo.”
The ruling’s broad view of religious expression—allowing
closely held, for-profit firms like Hobby Lobby to be exempted from the
mandate—could help the Arizona litigants prevail, according to legal experts.
Several liberal legal scholars submitted a
friend-of-the-court brief sympathetic to the religious-freedom argument.
Caroline Mala Corbin, a University of Miami professor who cosigned the brief,
said in an interview that she thinks the Hobby Lobby case was wrongly decided.
But she added: “If the court is going to be extremely deferential in one
case...they ought to be similarly deferential in other cases.”
“Assuming they genuinely believe they have a religious
obligation to take these actions, I actually think their argument is pretty
good,” said George Mason University constitutional law professor Ilya Somin.
Write to Jacob
Gershman at jacob.gershman@wsj.com