The state of Alabama has enacted a new law which would restrict the flow of various benefits to people not legally present in the country. You can read the entire text of the new law here. Alabama’s new law has been called “most draconian anti-immigrant bill in America” by its opponents, and its basic tenor can be readily seen in its section 7(b): “An alien who is not lawfully present in the United States and who is not defined as an alien eligible for public benefits under 8 U.S.C. § 1621(a) or 8 U.S.C. § 1641 shall not receive any state or local public benefits.” And its section 12 includes a provision similar to Arizona’s controversial SB 1070, requiring state law enforcement to refer suspected undocumented aliens to Federal law enforcement.
Which sounds like it’s just another immigration law, and we’ve been over this territory before. And that would be the case, if it weren’t for the religion.
1. The New Alabama Law
See, HB56’s section 13 has been made the subject of a Free Exercise Clause challenge in court by a group of Christian religious leaders in Alabama. Section 13 seems to be the “anti-coyote” part of the law, aimed at preventing the transportation of undocumented aliens into Alabama. But as written, it also is aimed at other kinds of conduct, and that’s where things get interesting. That portion of the law makes it a crime — a felony if the act involves ten or more people — to do any of the following:
(1) Conceal, harbor, or shield or attempt to conceal, harbor, or shield or conspire to conceal, harbor, or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law.
(2) Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in the United States is or will be in violation of federal law.
(3) Transport, or attempt to transport, or conspire to transport in this state an alien in furtherance of the unlawful presence of the alien in the United States, knowingly, or in reckless disregard of the fact, that the alien has come to, entered, or remained in the United States in violation of federal law. Conspiracy to be so transported shall be a violation of this subdivision.
(4) Harbor an alien unlawfully present in the United States by entering into a rental agreement, as defined by Section 35-9A-141 of the Code of Alabama 1975, with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.
The law is already questionable under Federalism grounds. Particularly by making it a violation of state for a private person law to do things that help undocumented aliens, the law appears to be coming close to regulating in the sphere of immigration. Arizona’s law has so far had a mixed result, mostly negative, at the hands of the courts on those grounds (see United States of America v. Arizona (9th Cir. 2010)) and we may need to wait and see if the Supreme Court weighs in. So yes, that’s clearly as much in play in this new Alabama case as it is in the pending Arizona case. LULAC v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995), still good law, makes the Federalism prospects look grim for Alabama’s new law, in my opinion. I’m sure defenders of Alabama’s law will have a ready explanation for why that conclusion is incorrect. But the fact is, that’s territory that’s been explored before.
2. The Clerical Contentions
The clerics contend that this provision of the law criminalizes their dispensing charity to aliens unlawfully present in the United States, and that they have a duty under the doctrines of their religion (Christianity — the clerics filing the suit are among the state’s leaders in its Episcopal, Roman Catholic, and United Methodist church hierarchies) to dispense such charity to all comers: “If enforced, Alabama’s Anti-Immigration Law will make it a crime to follow God’s command to be Good Samaritans” and would require the churches to ascertain the immigration status of anyone to whom they feel a Christian obligation to offer necessary implements of life such as food, clothing, shelter, and transportation, to those in need.
Presumably, what will happen is that the churches run charities of various kinds. They shelter the homeless, feed the hungry, provide clothing and first aid to the needy, and maybe run a van service to try and find employment or more permanent housing for these people. They help the poor. That’s one of the things churches do. And since they are motivated primarily by their religious beliefs, they believe that they must help everyone, including undocumented aliens.
3. The Lens of the Law
The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and the “free exercise” portion of this Amendment was incorporated to the States via the Fourteenth Amendment in the case of Cantwell v. Connecticut (1940) 310 U.S. 296. The state may not compel individuals to do things contrary to their religious beliefs, even for what seem like good reasons. In West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, Jehovah’s Witnesses were allowed to exempt themselves from mandatory recitals of the Pledge of Allegiance. (Note that the version of the Pledge applicable at the time did not include the phrase “under God,” although Jehovah’s Witnesses would not normally be expected to rehabilitate the Pledge by including that phrase.)
Laws that restrict religious exercises as practiced, even if the laws are facially neutral, are invalid. For instance, in Schneider v. New Jersey (1939) 308 U.S. 147, an anti-litter ordinance was enforced only against Jehovah’s Witnesses (note that the invalidity was on free speech grounds; the Free Exercise Clause had not yet been incorporated although the Court discussed it in its opinion). See also Wisconsin v. Yoder (1972) 406 U.S. 205, concerning mandatory school attendance for children of Amish parents beyond the eighth grade.
The test for whether a particular law violates the Free Exercise Clause derives from two cases. The first, Sherbert v. Verner (1963) 374 U.S. 398, involved a Seventh-Day Aventist who was denied unemployment benefits because she refused to work on Saturdays. The Sherbert test requires the plaintiff – the person challenging the law – to prove that 1) she has a sincere religious belief, and 2) her ability to act upon that belief is “substantially burdened” by the law. If she proves this, then the government must prove that 1) it is acting in furtherance of a compelling state interest (the most stringent of all Constitutional tests), and that 2) its actions are narrowly-tailored to advance that interest in the manner least burdensome to the practice of religion.
The two-part burden-shifting test was modified considerably in Employment Division, Department of Human Resources v. Smith (1990) 494 U.S. 872, the now-famous “peyote case.” Alfred Smith took peyote as part of a native American religious ritual, was fired, and applied for unemployment benefits. He was denied because taking peyote was considered “misconduct,” specifically the commission of a crime. Holding that the Establishment Clause did not require an interpretation of the law in which “each conscience is a law unto itself,” the Court said that a “generally applicable law” may not be ignored under a claim of burden on religious practice.
Congress reacted to Employment Division v. Smith by passing several laws, ultimately the Religious Land Use and Institutionalized Persons Act in 2000. RLUIPA comes in to play here because the charity the clerics in Alabama propose to dispense to all comers, including undocumented aliens, will likely be dispensed on the premises of their religious establishments or other facilities covered by RLUIPA, and it is easy to see how the substantial weight of Alabama’s law would “affect… commerce with foreign nations [or] among the Several States,” as the law’s apparent effect and apparent intent is to discourage undocumented aliens from coming to Alabama.
RLUIPA’s core is a functional return to the holding in Sherbert, although phrased just a little bit differently:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government can demonstrate that imposition of the burden on that person, assembly or institution a) is in furtherance of a compelling governmental interest; and b) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-5(a). So now we’re left to apply the Sherbert test, as re-interpreted through RLUIPA, to the Alabama law.
4. Is There A Burden On A Religious Practice?
The first question I’ve got is whether the law really forbids the dispensing of charity, even in the expansive but hopefully realistic ways I’ve imagined above. It seems clear enough to me that what the Alabama Legislature was getting at were “coyotes,” people who are paid money to smuggle undocumented workers in to the United States and to line up jobs for them here. The State of Alabama can, with some degree of credibility, declare that it never intended to and would never enforce this law as against a religious institution dispensing charity. Since the law has not yet even taken effect (its effective date is September 1, 2011) there is no experience one way or the other on this subject.
The clerics could respond by pointing out that there is no exception in the law for religious charity so there is no reason they should believe the state authorities when they say that they are really aiming their fire at coyotes. The liveness of the controversy is real, I think; on its face, dispensing charity to anyone regardless of their immigration status (and indeed, with an eye towards aiding the “poorest of the poor” and the “lowest of the low,” which seems pretty consistent with Christian moral ideals to me) could very well be seen as “Encouraging or inducing an alien to come to or reside in [Alabama] in violation of Federal law;” and the church’s failure to report to law enforcement the suspicion that there are people in its homeless shelter that they know (or reasonably ought to have known) were undocumented is also probably fairly understood as “Concealing, harboring, or shielding … an alien from detection in any place in” Alabama.
Is there a Christian obligation to dispense charity? I’m not going to delve into Christian doctrine here, because I know the answer is “yes.”
Does a law that makes it a criminal act to fail to report the illegal immigrant status of a charity dispensee interfere with the giving of that charitable aid? Yes. At least debatably, giving the charity at all is an inducement for them to come to Alabama (“Alabama: come for the soup, stay for the migrant agricultural work!”). Moreover, if word gets out that someone to whom these church-run charities are providing shelter and other charitable support is an undocumented alien, they would be reluctant to report that fact to Alabama or Federal authorities, because they know full well that such a report could result in that person being arrested and deported. By itself, these are bad things. Worse, if word gets out that the church is going to rat you out to La Migra, then people who need this sort of charitable support will not go to the churches to get it. So they may feel an ethical compulsion to not make those reports, and indeed if they come across the information suggesting the undocumented status of their wards while performing a religious activity (e.g., in confession) they may have an obligation within their religious doctrines to hold that information in confidence.
Seems to me that the clerics can make at least a prima facie case that a sincere religious belief (the obligation to dispense charity) is substantially impeded by this law.
5. What Is Alabama’s Compelling Interest?
So, that means that Alabama needs to prove that it has a compelling governmental interest in discouraging this kind of charity, and that this law is the least restrictive available means of achieving that goal. If it cannot, the law will not withstand a Free Exercise/RLUIPA challenge.
The compelling governmental interest prong is actually pretty easy to analyze. Why did the state pass the law? Well, the state tells us. Section 2 of the law sets forth a parade of horribles related to illegal immigration, including economic hardship, lawlessness, adverse effects on public education, loss of security on the borders (presumably this means the national borders), the obstruction of enforcement of Federal law, and unspecified but impermissible restriction on the privileges and immunities of Alabama’s citizens. Thus, the state claims the existence of a “compelling public interest to discourage illegal immigration”.
Surely, somewhere in there, a genuinely compelling state interest can be found. Right?
Well, it isn’t “economic hardship,” that’s for sure. If generalized economic hardship were a compelling public interest, all sorts of awful things could be made legal. Seizure of property without prior due process, a public purpose for the seizure, or just compensation to the former owner could be justified in an attempt to alleviate economic hardship. And the law isn’t really economic regulation in any meanigful sense of the phrase anyway. It changes the way the state does certain kinds of things, related to how state agencies dispense social services and law enforcement, and criminalizes certain activities benefitting a disfavored class of people within Alabama’s borders. Any economic benefit resulting from these things will be indirect at best.
Is the compelling interest the alleviation of “lawlessness”? The state surely has an interest, a deeply fundamental one, in seeing to it that the rule of law prevails. I quite agree, as a general proposition. But we aren’t told explicitly what laws are being violated at present, other than the presence of the undocumented aliens. There is no legislative finding that violent or property crimes have increased as a result of the presence of illegal immigrants purportedly attracted to the wealth of state social services so freely and carelessly dispensed by Alabama. Such a finding, had it been included in the preamble, would have been based more on faith than fact (as would have been a contrary finding, to be intellectually honest). The only law that we can be sure has been broken is the Federal law against non-tourist presence in the United States without appropriate documentation, something we know from the LULAC case is a matter about which the state has no direct interest. Sure, there may be cosmic discontent that the Federal law is not enforced with perfect efficiency. But cosmic discontent is not a sufficient justification for a law under any analysis, much less one that (inadvertently) intrudes on fundamental rights like the free exercise of religion.
This, then dispenses with the concerns about obstruction of Federal law enforcement and border security, as well. Those are federal concerns. To the extent that the law requires state agencies to cooperate with Federal law enforcement and its goals are congruent with existing Federal law, it’s probably innocuous from a federalism perspective; to the extent that the law arrogates to state agencies active participation in Federal law enforcement, it has problems. To the extent that it compels private citizens, under pain of a felony conviction, to report vioaltions of Federal law to state authorities so the state authorities can then arrogate to themselves participation in the enforcement of Federal law, it has a serious problem. Enforcement of the Federal laws is not the state’s business, and therefore these things cannot be true “compelling state interests.”
That leaves us with the degredation of public education. Is a combatting a drain on resources allocated to public education a “compelling state interest”? On this point, I have uncertainty. The state has a strong interest in seeing to it that its money is not wasted. I woudln’t even attempt to argue other than that it has at least a legitimate interest in ensuring that its resources are allocated for the benefit of its own citizens. But is that interest compelling, on the order of saving human life, guaranteeing due process of law to its citizens, or guaranteeing national security? Some might argue that defending against “invaders” is a national security issue and therefore this is a compelling governmental interest. Such an argument loses sight of the ball. The cited interest of the state is avoiding degredation of the quality of public education, not national security. I’m asking if the two are of equivalent importance, and progressives and teachers’ unions would be absolutely thrilled to find that social conservatives arguing that high quality public education is a matter of importance equal to national security, given the legal, constitutional, economic, and intellectual contortions to which social conservatives have gone through in the name of national security over the past decade.
I’m not saying public education isn’t important. It is. But it’s not compelling. At least, I can’t think it is as phrased here. There is no finding of how many undocumented alien children are in Alabama public schools. Some, I’m sure. But are we talking about dozens of kids or tens of thousands? The Legislature doesn’t tell us this, but there are 730,875 students enrolled in Alabama K-12 public schools right now. Tellingly, 15,107 of them are Hispanic. Obviously, one does not need to be Hispanic to be an undocumented alien; nor should we assume that any given Hispanic is an undocumented alien. But come on, now, when we’re talking about “illegal aliens,” we’re talking pretty much completely about people from Mexico (nearly two-thirds of all such people are from Mexico) and Latin America, who are going to be, overwhelmingly, Hispanic. I will propose that it is reasonable to assume that the non-hispanic undocumented alien population of Alabama is so low in number as to be negligible.
The Pew Hispanic Center estimates that the total number of undocumented aliens in Alabama is around 120,000, which would be 2.5% of the state’s total population. Of those 120,000 people, 95,000 are working, presumably illegally or with forged identity documents. It seems safe to assume that if an undocumented alien is working, he or she is not attending a public school as well. (If the person in question is both working and going to school — isn’t that the sort of person whose work ethic means we might want to keep them in our economy? Also incidentally, this means that if you’re undocumented in Alabama, there is a greater than 20% chance you’re unemployed, which is about twice as bad as the unemployment rate for the population at large — a puncture wound to the idea that undocumented aliens are taking jobs away from citizens.)
So the maximum number of people who could be both enrolled in Alabama public schools and undocumented aliens at the same time is 25,000, or about 3.4% of the total student body. But obviously, not every undocumented alien in Alabama solves their unemloyment problem by going to a public school. Some of them are just plain unemployed adults. So if we go with the proportion of the population as a whole, we’d assume that because 2.5% of the total population is undocumented, then 2.5% of the K-12 student body in Alabama is also undocumented. If we assume that every Hispanic in Alabama is undocumented — a decidedly unfair assumption — then we get about 2% of the student body are undocumented.
According to the Census Bureau, there are 185,602 people in Alabama, total, identified as “Hispanic.” How does that number relate to the Pew numbers? Are there really 300,000 Hispanics, of which about 120,000 are undocumented (meaning 40%) or are there really 185,000 of whcih 120,000 are undocumented (meaning about 65%)? It seems unlikely to me that the Census Bureau got a really good tally on undocumented people, and the Pew Center is quite cautious about its estimates. I could be wrong, but an undocumented alien does not strike me as likely to respond to inquiries from Census agents. So I think we’re closer to the 40% than the 65% ratio here. But for purposes of our argument, let’s split the difference equally and suppose that the Census did manage to count them, so we’re at 52.5% of all Hispanics in Alabama’s general population are undocumented, and that means that we can without much further risk assume that 52.5% of Alabama’s Hispanic student population are also undocumented.
If all of that is true, then that means we’re looking at 7,931 undocumented aliens enrolled in Alabama’s public schools, which if you will recall, have a total enrollment of 730,875. That’s just a smidge over 1% of the student body overall.
I cannot find it in me to say that if Alabama were to cut its school rosters by 1%, enough financial and other educational resources would be freed up that anyone would notice even the slightest difference in the quality of primary and secondary education in Alabama’s public schools. Your mileage may vary, but the proposition seems risible to me.
I think the state is going to be challenged to defend any of these things as a compelling state interest, at least discretely. Maybe it could amalgamate them and call the whole soup a compelling interest. Doubtful, but possible, in my estimation. So let’s move on to the last prong of the Sherbert test.
6.Is The Law Narrowly Tailored To Not Interfere With Religion?
This is a real problem for the state, because as the law is currently written, it has to rely on its assurances that a law it has never enforced will not be enforced against religious charities here. And while I do think the subject areas of the law are aimed at coyotes, as written, charities are in the crosshairs of section 13. And it would not have been difficult for the state to have written an exception to the law or an affirmative defense allowing religious charities to dispense at least food, clothing, and shelter in fulfillment of their religious missions. Indeed, the ease of writing religious exceptions to laws is well-known and most recently demonstrated by the religious exception to the same-sex marriage law in New York.
Even if a compelling interest can be articulated, which I submit is not so simple a proposition as the law’s defenders might suggest, the lack of a religious exemption alone skewers the law on the narrow tailoring prong. Fortunately for Alabama, this is actually a pretty easy thing for its Legislature to fix. At least, that’s how I would address this if I were a proponent of this law in the Alabama Legislature — I’d draft a religious-purposes exception and get that whizzed through as soon as possible, and moot the lawsuit.
With that said, I’m not a proponent of the law. I’d have voted against it on the general principle that people who want to work are the kinds of people you want to have, and on the more specific principle that it’s the Federal government’s job and not the state’s to deal with immigration. But I’ve really got to hand it to the clerics and the lawyers who are helping them — this is one of the most creative uses of Constitutional law I’ve heard of in a long time.