Judge considers whether church provides sanctuary from government agents

LAW IN PERSPECTIVE

December 16, 1990|By LYLE DENNISTON

It might be a scene from another time, another culture: secret government informers going into churches or synagogues to monitor what goes on there, looking for something illegal. It was, in fact, a scene played out repeatedly in America, in churches in Tucson, Ariz., and Phoenix, among other places. And it was something the federal government openly claimed the power and the right to repeat.

Now, a federal judge has stepped in and, depending upon how broadly or narrowly one reads the language of the judge's final order, the official practice of secretly looking for evidence of crime in religious gatherings may either have to stop or be carried out more cleverly and discreetly.

Some early public interpretations of the order issued last week by U.S. District Judge Roger G. Strand of Phoenix may well have exaggerated the amount of protection given churches against secret infiltration by government agents.

This episode is but the latest in a series of bizarre twists and turns in the law since the emergence of a modern "sanctuary movement" -- a revival of the ancient idea of religious sanctuary, applied in this instance to provide shelter for refugees entering this country illegally to escape the privation or oppression of some Latin American nations.

In some of the border states of the Southwest, it has brought on heavy clashes in and out of court between churches, driven by a sense of mission to protect the refugees, and the Immigration and Naturalization Service, driven by an equally strong sense of mission to curb illegal migration to this country.

For the INS, the sanctuary movement has been at least an irritation, and perhaps much more than that, since there have been intimations that the INS sought to stamp out the movement entirely. To take on the movement, however, the INS apparently concluded it would have to get the evidence directly from inside churches that might be sheltering aliens.

In 1984, it sent in its agents, wired for sound, to get the evidence, and thus began a constitutional clash between religious freedom and law enforcement. It wound up in Judge Strand's court when four Arizona churches, losing members and support over the fear and anxiety they said was being spread by the infiltration, sued to bar the government agents entirely from entering the churches to do their investigating.

On their side of the case, the churches argued that the First Amendment's protection of the "free exercise" of religion meant that the churches were true sanctuaries, out of bounds for government agents, and the government would have to carry on its enforcement of immigration laws somewhere else.

On its side of the case, the government contended that the First Amendment had nothing to do with the matter, and that a church was no more immune than any other place to entry by law enforcement officers or agents who had reason to suspect that sanctuary was being provided illegally to undocumented aliens.

Nearly four years after this court fight began, Judge Strand ruled last week, declaring -- on the one hand -- that government agents could not be kept out of the churches entirely, and then declaring -- on the other hand -- that the First Amendment did put some limits on agents looking for evidence of crime in religious gatherings.

The government's interest in protecting its borders against illegal entry, the judge said, outweighs the churches' interest in carrying on their worship activities without government intrusion. Federal agents may need to go directly into churches, if illegal aliens choose that setting as sanctuary, or if the churches use their religious meetings to plot illegal sanctuary.

What is said in the midst of a religious service generally open to worshipers cannot be shielded constitutionally from the hearing of a government agent who attends in an undercover capacity, the judge concluded.

Up to that point in his ruling, Judge Strand seemed to be implying that the churches lose, that they are vulnerable to infiltration by secret investigators.

But, then the judge went on to say that the constitutional guarantee of religious freedom puts two limits on what the government can do when it seeks to enter a religious institution to investigate for possible crime:

First, it cannot infiltrate simply for the purpose of "abridging" the constitutional right to worship that exists there. That may not be, by itself, much assurance to the churches, because it sets up a test of official intent that the government might have little difficulty satisfying, by showing that illegal aliens, not religious rituals, were what it wanted to check up on.

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