Church, State, and Arizona SB 1070

E. J. Montini of the Arizona Republic reports that ". . . one of the lawsuits challenging SB 1070 is based on the notion that the law inhibits First Amendment freedom to worship."  As Montini correctly states, "Among other things, SB 1070 makes it a crime to knowingly transport, harbor, conceal or shield an illegal immigrant if you do so while committing a separate criminal offense."

This provision of the law will of course cause trouble for those pastors and other church members who transport illegals to and from church functions.  Suppose Pastor X is pulled over for a traffic violation while shuttling a group of illegals.  Said pastor is liable to prosecution under the 1070 law.  That is as it should be since the pastor is aiding and abetting the flouting of U. S. law.

But by what stretch of logic does one conclude that violators of U. S. immigration law are having their First Amendment rights violated?  They have no such rights!  Those are rights of U. S. citizens, not rights of anyone, citizen or not.  But even if you think that illegal aliens do have First Amendment rights, or some analogous universal human right, there is nothing in 1070 that prohibits the free exercise of religion on any reasonable construal of 'prohibit.'    The right to the free exercise of religion does not give one the right to do anything in the free exercise thereof.

Take a simple example.  Catholic priests cannot be prohibited by the state from saying mass.  To do so they need wine.  But there are laws against theft, so they need to come by their wine by some legal means.  Now suppose some benighted liberal argues that the laws against theft inhibit the First Amendment freedom to practice one's religion by prohibiting the stealing of wine and other supplies needed at mass.  Anyone can see that to argue in such a way would be a joke.  To take a more drastic case, suppose there is a Satanic ritual that requires the killing of cats.  No sane person could argue that the laws against cruelty to animals interfere with the First Amendment rights of satanists.

Similarly with 1070.  No rational person could argue that it inhibits First Amendment rights.  The right to practice one's religion does not give one the right to break laws in its practice.

Churchmen need to reflect carefully on their relation to the State.  If they flout its laws, and in so doing undermine the rule of law, then who will protect them when they need it?  Will the good pastors who aid and abet illegal aliens forego calling up the police when they need protection?  Will they try to have it both ways, deriving the benefits from the rule of law while undermining it?

Comments

[Brian Bosse]

Hello Dr. Vallicella,

You said, “The right to practice one’s religion does not give one the right to break laws in its practice.”

I believe this gets right to the heart of the matter. Consider the Native American Church’s use of peyote. It seems that this use is protected even though for those of us outside of the Church it’s use is generally considered illegal. Now, I grant that this use of peyote is protected by law, and as such is not technically the breaking of a law; however, its use apart from its religious protections is a breaking of the law. It would appear that these exceptions are made because First Amendment protections can in some cases supersede a general law.

I think there are a couple of interesting questions raised here in addition to ones you raised at the end of your entry:

(1) If there are legitimate situations where First Amendment rights can supersede general laws, what is the basis one uses to decide when this is appropriate or not? For example, what is the basis that allows the use of Peyote within Native American Churches and disallows the killing of cats in Satantic churches (or the ritual sacrifices of bulls and goats as found in the Old Testament)?

(2) If the tenants of a religion undermine the very Constitution itself, then can the United States really afford First Amendment protections to that religion? Or, can there be First Amendment exceptions as well? Perhaps, the sword can cut both ways?

Brian

[Oran Dat]

According to the U.S. Constitution, U.S. Citizens have these rights:

vote in a federal election
run for federal office

And everyone living in the U.S. has these rights:

freedom of expression
freedom of speech
freedom of assembly
freedom to petition the government
freedom of worship
the right to bear arms

[Bill Vallicella]

Where in the Constitution is this said? Refer me to the exact passages, I will read them, and if I am wrong I will issue a retraction.

[Bill Vallicella]

Hi Brian,

An interesting example, but don't the Indian nations possess sovereignty vis-a-vis the U. S.? That muddies the waters somewhat.

>>If the tenants of a religion undermine the very Constitution itself, then can the United States really afford First Amendment protections to that religion?<<

I believe you mean 'tenets' not 'tenants.' Pedantry aside, the answer seems an obvious No. Was it Judge Posner who said that the Constitution is not a suicide pact? "Congress shall make no law respecting an establishment of religion." Islamists, however, would impose Sharia. So their attempted imposition cannot be tolerated. But what about the speech in which they advocate Sharia. It is more difficult to maintain that that cannot be tolerated.

[Oran Dat]

@Bill Where in the Constitution is this said? Refer me to the exact passages, I will read them, and if I am wrong I will issue a retraction.

1st ammendment

14th ammendment and lookup the incorporation of the bill of rights

26th ammendment

[Bill Vallicella]

None of those amendments bear on the question whether illegal aliens and other non-citizens have the rights of citizens.

[Oran Dat]

The 1st Ammendment has been fully incorporated to the states through the 14th Ammendment, which declares "nor shall any State deprive any citizen of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Any person is any person, not any citizen. Within U.S. Territory, the U.S. Constitution provides the same 1st Ammendment rights to non-citizens as it provides to citizens.

[T. Hanson]

"Within U.S. Territory, the U.S. Constitution provides the same 1st Ammendment rights to non-citizens as it provides to citizens."

The above is mostly incorrect. For a nice brief rundown see:

http://www.slate.com/id/1008367

Note especially the distinction between immigration/administrative law and criminal law.

[Jim Tucker]

@T. Hanson:

It's difficult to see how you draw this conclusion from the article you cite, which begins

"the Bill of Rights applies to everyone, even illegal immigrants."

Indeed, the Supreme Court has also, through the history of its case law, generally held this to be so.

[T. Hanson]

@Jim Tucker:

You obviously did not read the whole article.

And case law has not supported your interpretation. Here is just one obvious example:

http://www.aclu-sc.org/releases/view/100259

[Jim Tucker]

@T. Hanson:

You're missing the salient point in your most recent post as well: Note that this was considered "an astounding decision" that neither party had anticipated. This is because the Court's decisions have traditionally observed the language of Amendments 5 and 6, which apply to "all persons within the territory of the United States", and to the equal-protection clause of Amendment 14.

Here are a few relevant cases:

http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=50081&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D118%26invol%3D356">http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D118%26invol%3D356">http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=50081&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D118%26invol%3D356

http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=525&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl%3Fcourt%3Dus%26vol%3D163%26invol%3D228">http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl%3Fcourt%3Dus%26vol%3D163%26invol%3D228">http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=525&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl%3Fcourt%3Dus%26vol%3D163%26invol%3D228

http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=50085&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D457%26invol%3D202">http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D457%26invol%3D202">http://usgovinfo.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=usgovinfo&cdn=newsissues&tm=50085&f=20&tt=2&bt=1&bts=1&zu=http://caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3DUS%26vol%3D457%26invol%3D202

[Jim Tucker]

Sorry about the cumbersome links. The cases being referred to are:

YICK WO v. HOPKINS, 118 U.S. 356 (1886)
118 U.S. 356

WONG WING v. U S, 163 U.S. 228 (1896)
163 U.S. 228

PLYLER v. DOE, 457 U.S. 202 (1982)
457 U.S. 202

This is fairly settled material, with a widespread acceptance (again, as your most recently cited article suggests).

[T. Hanson]

@Jim Tucker

That it is considered an "astounding decision" in an article written by the ACLU is not much of a surprise.

Citing two cases from the 19th century and one from the 20th, is not very compelling. My case is the most recent (1999) and it contradicts your interpretation. Let's add the case of Harisiades v. Shaughnessy (1952). So, I have two cases in the 20th century that contradicts your view that the issue is settled on your side. Looks like my side has the historical momentum.

It is very odd that you think your interpretation is settled when the Supreme Court has ruled aliens can be detained and deported for political activity and association (1999) and political speech (1952). Obviously it is not setted that aliens have the same constitutional rights as citizens.

[Arizona Legislation Community]

An Arizona Republic report reveals that many illegal immigrants are leaving the state due to SB1070 and it’s starting to affect businesses. What type of impact do you think SB 1070 will have on Arizona’s economy?

Share your opinion on SB 1070 and all of Arizona's political issues at http://www.azlegislation.com