For a minute, let’s give the church the complete benefit of the doubt on its change in policy on undocumented immigrants. Let’s assume that its policy change was meant to ensure some aid to immigrants while, at the same time, protecting local leaders from criminal prosecution. (The second appears to be its explanation of the policy change, while I refuse to believe that the church would entirely abrogate its duty to help the stranger.)
With that benefit of the doubt, let me say unequivocally that its new policy is counterproductive toward both goals. Whether or not they’re acting with the best intentions, the drafting creates unnecessary risks both for bishops while, at the same time, reducing the likelihood of housing aid for immigrants.
Why do I say that? This is the language of the memo to various leaders:
“If local leaders have reason to believe someone is undocumented and not authorized to work, they should avoid potential conflicts with federal law by avoiding or limiting housing assistance, not transporting the person outside the local community, and not referring the person for employment.”
(Emphasis mine.) Like I said in my last post, this language seems to refer to the statute criminalizing “harboring” an undocumented immigrant. But here’s the thing: criminal law in the US requires that criminal acts be done with some particular state of mind. In this case, the state of mind is “knowing or with reckless disregard” of a person’s immigration status.
With that in mind, the policy increases the risk for bishops of providing housing aid. With the prior policy, where the standard for providing housing aid didn’t differ based on immigration status, a bishop didn’t recklessly disregard a person’s status in giving them aid. In fact, in its advice for churches that wanted to help immigrants, the ACLU recommended a policy where aid was available on the same terms to anybody (who otherwise qualified), irrespective of immigration status. The ACLU recommended, as best practices, a policy of explicitly not learning immigration status. That eliminates the risk that a church leader would know or recklessly disregard.
With a policy that church leaders should avoid or limit housing aid to individuals if they have “reason to believe” that the individual is undocumented, the policy seems to anticipate bishops finding out the immigration status of people who receive aid. If that’s the case, there’s a non-frivolous argument that ignoring immigration status constitutions reckless disregard. (Is it a winning argument? Idk, but it’s definitely comfortably within the realm of plausibility.)
But the policy allows for some limited amount of housing aid. While I think that this is a moral necessity, that creates additional legal risk for local leaders. Because the statute doesn’t have a floor on the amount of housing a person who knows or recklessly disregards undocumented status can provide before it rises to the level of a criminal violation. So if the church tells local leaders to be on the lookout for immigration status and it still allows them to provide aid, it has actually increased the potential for them to end up in legal jeopardy.
(And to be clear, I think there is an almost bulletproof religious liberty defense here. But the church seems uninterested in making that argument.)
A couple people, in comments on my previous posts, have suggested that this is just a first volley, and that the church will issue clarifying follow-ups later. And I hope it does! But I also hope it’s careful as it issues policies with potential legal consequences in the future. While the church shouldn’t outsource its moral and religious policies to attorneys, one of our jobs as attorneys is to evaluate and point out legal risks. And this policy, with its explicit intersection with the law, raises real and significant legal risks, risks that should be obvious to attorneys, and risks that can be easily ameliorated (except, maybe, that the very rare margin).
Photo by Clarisse Meyer on Unsplash