Trying to Reclaim Religious Freedom in Court

What happens when the left takes a page from the religious right’s playbook?

By Stephanie Russell-KraftTwitter

TODAY 1:38 PM




A boy sits in a tree next to La Lomita Chapel, where hundreds gathered in 2017 to oppose the wall the US government wants to build


On the morning of a scorching day in August 2017, a group of four young women drove into the dusty expanse of the Cabeza Prieta Wilderness on the southwestern edge of Arizona. When they arrived at their destination, they parked their truck, loaded their backpacks with gallon jugs of water, and trekked deeper into the desert between the boulders and low brush. Even though they wore thick boots, the group stopped periodically to peel the thorns of jumping cholla cacti out of their legs and feet.

The Cabeza Prieta, a national wildlife refuge, abides by a strict “leave no trace” principle of environmental conservation. But these people, volunteers with the humanitarian aid group No More Deaths, planned to leave their water jugs, along with pop-top cans of cooked beans, out in the desert. They were intended for migrants crossing the US-Mexico border.

Less than two hours later, the volunteers were apprehended by law enforcement and were charged by federal prosecutors with entering the park without a permit, driving in a wilderness area, and abandonment of property. In their defense, the volunteers argued that their actions were motivated by their faith.

“We weren’t denying that we did what we did,” said 21-year-old Zaachila Orozco, one of the convicted defendants. “We were trying to prove that there is a larger reason for why people like us are doing what we’re doing in the desert.”

In raising this defense, the humanitarian aid workers turned to the Religious Freedom Restoration Act, the law that has allowed Hobby Lobby stores to avoid paying for contraception coverage in employees’ health insurance. It’s a law that for many has become synonymous with anti-LGBT discrimination and a conservative Christian moral agenda; five years ago, Katha Pollitt argued in The Nation that it was time to repeal it altogether. But many of the volunteers with No More Deaths, a ministry of the Unitarian Universalist Church, are acting on their religious faith. Shouldn’t they get the same protections as Hobby Lobby?

Today, progressive lawyers are wondering if they can make RFRA work for them. It’s not an obvious strategy, since bolstering the law runs the risk of emboldening the conservatives who use it to restrict LGBT rights. And many progressive litigants, particularly those from non-dominant faith groups, face an uphill battle in court. Judges are not technically supposed to be in the business of deciding what is religious and what isn’t, but they often can’t avoid doing so, particularly when religious beliefs intersects with politics.




The RFRA hasn’t always been the polarizing law that it is today.

Introduced by Democrats and passed with near-unanimous bipartisan consensus in 1993, RFRA was Congress’s attempt to restore the religious-freedom protections it believed were destroyed by the Supreme Court. President Clinton, who signed the law, was reportedlycaptivated by Yale law professor Stephen Carter’s widely influential book, The Culture of Disbelief, which argued that American liberal elites had wrongly pushed religion out of the public sphere.

The legislation was triggered not by a Bible-thumping politician but by a 1990 court case involving Native Americans, hallucinogens, and employee rights. In Employment Division v. Smith, the court ruled Oregon could deny unemployment benefits to two Native Americans who had used the illegal drug peyote, even though the drug was part of a religious ceremony.

The courts had actually been denying all sorts of religious claims all along, but the Smith decision caught many Americans off guard. It prompted a backlash across the political spectrum by lawmakers who worried it threatened religious freedom, particularly for practitioners of minority faiths.

RFRA stipulates that the government can’t substantially burden a person’s exercise of religion, even if that burden comes from a general law that has nothing to do with religion. Essentially, the law set up a framework for religious actors to carve out exemptions where they felt they could not express their religious convictions within the law. As the Supreme Court held in 2014 in Burwell v. Hobby Lobby, “RFRA was designed to provide very broad protection for religious liberty.”

Phillips all the way to the Supreme Court, kept his story at the top of the news cycle for years.

Conservatives haven’t just weaponized RFRA in the courtroom—they’ve reshaped the way we talk about religious freedom in the public sphere. Religious freedom has become a euphemism for anti-LGBT discrimination in part because of flawed media coverage that has regurgitated the language of the conservative Christian right without interrogating it.

“Just about everybody left of the religious right has taken the idea of religious freedom for granted, and very few people ever talk about it, and if they do, not well,” said Frederick Clarkson, senior research analyst at Political Research Associates.

As a political strategy, raising more RFRA claims from a progressive standpoint could undo some of that damage, especially if they’re well publicized. “If there’s going to be some equal standard of justice, you would think that religious people going out in the desert to provide food and water for refugees would get some sympathy,” said Clarkson. “You would think that a story of decent and just acts would widely resonate, but this is a story people hardly have heard at all.”

The No More Deaths volunteers aren’t the only progressives raising religious freedom claims in court. Catholic activists with the Kings Bay Plowshares were charged with trespassing, conspiracy, and destruction of property after they entered a Georgia naval base to symbolically dismantle nuclear weapons. The activists have argued they are protected by RFRA because of their deeply held faith and Catholic social teaching against nuclear weapons.

In Pennsylvania, a group of nuns used RFRA to argue their religious freedom was violated by the construction of a natural-gas pipeline through their land. The sisters, members of the Adorers of the Blood of Christ, say they follow Pope Francis’s teachings that human-caused climate change is one of the biggest problems facing humanity today. The courts ruled against them, saying they brought their religious claims too late.

“Generally, I think we’re going to see a little bit more of this,” said University of Virginia law professor Richard Schragger. “If RFRA is a tool being used by conservative parties, it’s a tool that’s available to progressive parties too.”

Many progressive lawyers have shied away from using RFRA because of the harm it has done to women and LGBT individuals while in the hands of conservatives. One way to fix that would be to pass the Do No Harm Act, which would limit opportunities for religious exemptions in RFRA “to protect civil rights and otherwise prevent meaningful harm to third parties.”

The question also remains, as Columbia Law professor Katherine Franke put it to me on a recent call, “whether the left ought to just borrow a page from the right’s playbook and argue for aggressive exemptions when they disagree with government policy, or whether we ought to develop our own progressive version of religious liberty which isn’t about exemptions.” A system of laws that allows for too many carve-outs and exemptions is a “serious antidemocratic problem,” said Franke, a leading expert on RFRA.

Religious-liberty protections are also limited to religious actors. Progressives acting for secular moral reasons aren’t eligible for exemptions. “When we all stand together to defend the rights of migrants or asylum seekers, some people do that because of their faith and many are doing that for not-faith-based reasons,” said Franke. “Why should the people who have a plausible faith-based reason for their actions be treated differently than those of us who don’t?”

Nevertheless, “it would be a terrible political move on the part of the left to surrender RFRA as it’s been interpreted through Hobby Lobby to the right wing,” Franke said. “That doesn’t mean we won’t be careful.”

Since 2014, at least 1,468 migrants have died while attempting to cross the US-Mexico border, according to the International Organization for Migration. No More Deaths was founded in 2004 and has been an official ministry of the Unitarian Universalist Church of Tucson since 2008. Its mission is to “end death and suffering in the Mexico–US borderlands” by humanitarian aid in the form of food, water, clothing, and search-and-rescue missions.

No More Deaths claims that border patrol agents not only fail to help save the lives of migrants but actively impede humanitarian efforts by slashing water jugs and chasing migrants into remote, dangerous terrain. The volunteers say they always return to the drop sites to see what has been consumed and to remove any trash left over.

Zaachila Orozco says she’s compelled to do this work because of her deeply held religious and spiritual beliefs. “I believe in the sanctity of life and death, and in everybody having proper recognition as a human life,” she said. Orozco, whose father is from Mexico, has long celebrated Día de los Muertos, a holiday with pre-Columbian roots in which Mexicans pray for and remember family members who have died. “I have an altar in my apartment, a place dedicated to those loved ones who have passed,” she said.

“Arriving at water drops is kind of sacred,” Orozco told me. “It’s obvious that somebody has passed through this place.”

The Supreme Court has repeatedly said it’s not up to the courts to decide which religious beliefs are sincere and which ones aren’t. In Hobby Lobby, the court said it had “no business” addressing “whether the religious belief asserted in a RFRA case is reasonable.” And yet, courts tend to discount religious claims that don’t appear conventional or familiar, like observing a Sabbath or following an orthodox doctrine.

Last summer, a federal judge said Orozco and the other women appeared to be “draping religious garb” over their political views in order to skirt the law. Orozco believes there’s a false dichotomy between religion and politics. “Your religious beliefs can compel you to act in political ways,” she said.

Nicole Ducheneaux, a lawyer who represented the Cheyenne River Sioux tribe in their effort to block the Dakota Access Pipeline litigation, thinks the tribe faced this same hurdle when it brought a RFRA claim during litigation. Access to “fresh, pure, natural unadulterated water” is part of many Sioux religious ceremonies, including the Inipi, or sweat lodge ceremony, that precedes other rites, according to Ducheneaux, who is also a member of the tribe. “It is not a overstatement to say that water is the life of our religious belief,” she said.

The judge ultimately dismissed the RFRA claim because the tribe raised it too late, but Ducheneaux believes bias played a part. “We have a major impediment,” she said. “Native religious beliefs are not like Catholicism or Judaism in that we don’t have centuries of scholarly, literate people who have been writing down or memorializing the doctrine of our religion. We come from an oral tradition.” The Cheyenne River Sioux are considering an appeal in that case, and if so, will raise a RFRA claim again. “It is absolutely an issue worth pressing for us,” Ducheneaux said. “We believe we have just as much right as a Catholic anti-choice person to live our lives in accordance with our beliefs.”

Progressive religious freedom litigants may face an uphill battle, but a recent case in Brownsville, Texas, offers some hope. The Catholic diocese, in charge of the historic La Lomita church, has argued that border-wall construction interferes with its religious practices. In court documents, lawyers invoked RFRA and said “the Diocese cannot consent to the erection of a physical symbol of division and dehumanization on its property, especially where there are alternative means of patrolling the border.”

Following significant public outcry on behalf of citizens and community leaders in Texas, federal lawmakers included a provision in the most recent spending bill that prohibited the use of appropriations for a border wall on La Lomita property. The diocese hasn’t won on its RFRA claims, but the case shows that the concept of religious freedom lives outside of courtrooms.

“Public sentiment can have a big impact,” said Mary McCord, a senior litigator at Georgetown’s Institute for Constitutional Advocacy and Protection who has been helping the diocese with its case. “Part of the effort in litigation like this is to make sure this isn’t a quiet thing that happens in a filing in court, but that people know about it,” she said. “These kinds of things are campaigns, not just one off pieces of litigation.”

A spokesperson for No More Deaths said the organization has focused its press efforts on local media based in Arizona and Northern Mexico, but the cases have attracted some national attention. In total, nine No More Deaths volunteers faced criminal charges for their actions in the past two years, and the organization has used the hashtag #Cabeza9 to refer to them on social media. Four volunteers reached a plea deal, and Zaachila Orozco’s group of four was convicted of misdemeanors in January.

A ninth volunteer, Scott Warren, is still facing a misdemeanor and three felony charges for his humanitarian-aid work. Warren has testified that recovering the bodies people who have died is “one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert.” He said he goes through a ritual, which includes a moment of reflective silence, every time he comes across someone who has died in the desert. “I believe that people’s souls and spirits continue to inhabit and to dwell in a place,” he said.

Katherine Franke, who has written several briefs in the No More Deaths case, hopes that Scott Warren’s RFRA case will be politicized when he heads to trial in May. “It turns the trial into an opportunity to mobilize around the immorality of what the government is doing,” she said. “It is legal to provide water and food to sheep in the Cabeza Prieta wildlife refuge, but not to human beings.”

Whether or not Warren’s RFRA defense is successful, progressives must recognize that religiously motivated action can wield immense power in the political sphere.


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