Aid for Immigrants on Desert Trek Stirs Religion-Freedom Fight

By Jacob Gershman

Dec. 6, 2018 5:30 a.m. ET

‘Trespasser’ group in court trying to toss federal charges over their relief effort

In one of the most desolate corners of the country, a new and closely watched battle over religious rights has taken root.

A federal magistrate judge in Arizona is deciding whether a group of border-aid volunteers accused of trespassing on a national wildlife refuge near Mexico has a religious right to help immigrants making dangerous treks across the Sonoran Desert.

The dispute first surfaced in the summer last year deep inside the Cabeza Prieta wilderness, an expanse of sun-scorched valleys and lava-capped mountains sharing a 56-mile border with Sonora, Mexico. Home to rattlesnakes, lizards and desert tortoises, the land has been described by federal wildlife officials as “the loneliest international boundary on the continent” and “incredibly hostile to those who need lots of water to live.”

The nine defendants—mostly 20-something volunteers for a relief group associated with the Unitarian Universalist Church of Tucson—admit they lacked permits when they ventured into the desert in pickup trucks loaded with jugs of water and cans of beans. But they argue that they were on a sacred mission to save human lives.

With the advice of Ivy League law professors, their defense lawyers have sought to throw out the misdemeanor charges based on a 25-year-old federal law protecting religious liberty, the same statute that helped Christian conservatives challenge the Affordable Care Act’s contraception coverage requirements during the Obama administration.

The defendants say they didn’t get permission to enter the refuge because of new rules adopted by the U.S. Fish and Wildlife Service forbidding Cabeza Prieta visitors from leaving behind food, water bottles, blankets, medical supplies or other personal possessions. Defense lawyers assert that the restriction on relief supplies—adopted by the Trump administration in July 2017—is part of a crackdown on border relief efforts. A defense motion quotes a text message from a Border Patrol agent referring to the volunteers as “bean droppers.”

Larger than Rhode Island and lacking border fences, the Cabeza Prieta refuge has been an active and lethal corridor for migrants and smugglers. Since 2017, the skeletal remains of more than 40 people have been found in Cabeza Prieta, according to migrant mortality data collected with the help of Pima County’s medical examiner office.

A central question in the case is whether the defendants are protected by the Religious Freedom Restoration Act, signed by President Clinton in 1993.

The law expanded religious protections beyond the First Amendment and its guarantee of the right to practice one’s faith free of government interference. Under the statute, the federal government may not hinder a person from exercising sincerely held religious beliefs without a compelling and unavoidable reason.

Department of Justice lawyers say enforcement of the permit rules serves important government interests: protecting the wilderness character of Cabeza Prieta—the third largest national wildlife refuge in the continental U.S.—and deterring illegal immigration. Accommodating the relief workers would lead to a flood of religious-exemption requests that would create regulatory chaos and threaten wildlife, the government has argued.

Prosecutors have also questioned whether the defendants’ relief missions are truly religious in nature, suggesting the defendants were motivated by political or “purely secular” philosophical concerns.

No More Deaths, the aid group organizing the missions, is a ministry of the Unitarian Universalist Church of Tucson, which describes itself as a non-creedal, spiritually diverse religion united by shared values.

To counter the government, the defendants submitted sworn declarations describing their faith.

Logan Hollarsmith, a carpenter from New Orleans, said he’s learned lessons of compassion in the teachings of Jesus and Buddha. When he’s not living in a wooden shack he built in the backyard of a friend, he’s traveling the globe on humanitarian missions, most recently to a storm-ravaged island near Puerto Rico. “My spirituality is not abstract. It is as real as my hammer and my truck and my hands,” he told the court.

Defendant Scott Daniel Warren, a cultural geographer at Arizona State University, said he views Cabeza Prieta as a sacred place. “It’s a graveyard. And just the act of moving through that space, that place, to me is a deeply spiritual experience,” he said. Mr. Warren is separately battling a felony charge of harboring two migrants in the country illegally.

Courts have been reluctant to define the boundaries of faith—up to a limit. A federal appeals court in 2016, for example, ruled against a Hawaii man charged with distributing marijuana who claimed he had “a divine command to spread cannabis far and wide.”

In recent years, the religious freedom law has led to legal victories for the political right, most notably in the Supreme Court’s 2014 decision in the Hobby Lobby case. In that case, the evangelical Christian owners of an Oklahoma City arts-and-crafts chain objected to providing insurance coverage for contraceptives, arguing that it compromised their religious beliefs by making them morally complicit in “the death of [an] embryo.”

The ruling’s broad view of religious expression—allowing closely held, for-profit firms like Hobby Lobby to be exempted from the mandate—could help the Arizona litigants prevail, according to legal experts.

Several liberal legal scholars submitted a friend-of-the-court brief sympathetic to the religious-freedom argument. Caroline Mala Corbin, a University of Miami professor who cosigned the brief, said in an interview that she thinks the Hobby Lobby case was wrongly decided. But she added: “If the court is going to be extremely deferential in one case...they ought to be similarly deferential in other cases.”

“Assuming they genuinely believe they have a religious obligation to take these actions, I actually think their argument is pretty good,” said George Mason University constitutional law professor Ilya Somin.

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