A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches

75 Pages Posted: 12 Nov 2018 Last revised: 24 Apr 2020

Date Written: October 19, 2018


Across the country, places of worship are declaring themselves sanctuaries and providing shelter to undocumented individuals. The last time this happened on a large scale, the 1980s, the federal government undertook a campaign of surveillance and infiltration, ultimately arresting and convicting a number of sanctuary activists. Yet under the Religious Freedom Restoration Act (RFRA) jurisprudence of the Roberts Court, religious exercise now enjoys more protection than at any point in recent history. This piece asks whether RFRA could protect sanctuary churches and immigrant congregations—and what this can teach us about the current political and legal landscape around religious accommodation claims.

Part I describes the history of the sanctuary movement and its current form today. Part II tracks the evolution and current state of religious exercise protections under RFRA. Part III analyzes two types of sanctuary issues under current RFRA doctrine: (1) whether sanctuary churches should receive an exception from federal laws prohibiting various forms of assistance to undocumented individuals; and (2) whether RFRA would place limits on ICE’s ability to raid or surveil places of worship. I conclude that RFRA would in many cases protect sanctuary activists from prosecution, as well as place limits on ICE’s ability to conduct enforcement actions at places of worship.

Part IV examines sanctuary claims within the broader context of politically-fraught debates over religious accommodation. I explore how a consensus around protecting minority faiths and subordinate groups from de facto unequal treatment relative to powerful mainstream faiths animated RFRA’s effects-based approach and near-unanimous passage in 1993, but also how recent attempts by mainstream faith groups to further extend religious accommodation protections (at times at the expense of minorities, religious and otherwise) have eroded that consensus. Accommodation claims from the left, like sanctuary, have the potential to cut across existing political battle lines to produce a more stable equilibrium between religious freedom and other competing rights. This piece offers several concrete doctrinal suggestions for what such an equilibrium would look like; if courts were to analyze various open questions in RFRA doctrine with an eye to the particular harms that arise from the unequal treatment of disadvantaged groups, it would better balance the competing interests at stake, restoring an original consensus and avoiding the divisiveness produced by recent claims brought by politically-influential, mainstream faith groups.

Keywords: Religious Freedom, Immigration, RFRA, Religious Freedom Restoration Act, Free Exercise, Sanctuary, Anti-Discrimination

Suggested Citation

Scott-Railton, Thomas, A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches (October 19, 2018). 128 Yale Law Journal 254 (2018), Available at SSRN: https://ssrn.com/abstract=3269667

Thomas Scott-Railton (Contact Author)

Yale Law School, J.D. 2018 ( email )

127 Wall Street
New Haven, CT 06511
United States

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