In recent years, advocacy around religious liberty has become closely associated with America’s religious right. For conservative Christians, standing up for freedom of religion often means defending bakers who don’t want to make cakes for queer weddings or business owners who don’t want to pay for contraception coverage.
For Scott Warren, a 37-year-old geography teacher from Ajo, Arizona, freedom of religion means making sure migrants crossing a treacherous stretch of desert along the U.S.-Mexico border don’t die of dehydration.
Last week, a federal judge acknowledged in a ruling that Warren has a legal right to put these religious beliefs into practice. Experts say the decision is one of the first times that progressive religious beliefs related to immigration have been protected this way ― highlighting the fact that conservative Christians don’t have a monopoly on the right to religious liberty.
For the past two years, Warren has been fighting federal misdemeanor charges for leaving water, food and other supplies for migrants in the Cabeza Prieta National Wildlife Refuge. Activists with No More Deaths, a Unitarian Universalist ministry that Warren volunteers for, say dozens of migrants have died crossing this stretch of desert along the border.
The U.S. government charged Warren for “abandonment of property” and for “operating a motor vehicle in a wilderness area” ― in other words, using a truck to carry humanitarian aid supplies into a remote, restricted area.
Last Wednesday, U.S. District Judge Raner Collins found Warren guilty of the vehicle charge, but importantly, acquitted him of the property charge. The judge argued that even though the government successfully proved that Warren did, in fact, abandon property in the wildlife refuge, the teacher’s humanitarian efforts are protected by his right to religious freedom.
“Defendant was obliged to leave water jugs because of his religious beliefs, and the Government’s regulation imposes a substantial burden on this exercise of his religion,” Collins wrote in his decision.
There are other ways that the government can protect its alleged interest in ‘securing the border’ than by prosecuting a person of faith who is trying to prevent people from dying of dehydration.
Elizabeth Reiner Platt, Columbia University’s Law, Rights, and Religion Project
Elizabeth Reiner Platt, director of Columbia University’s Law, Rights, and Religion Project, said the decision is a small step, but “extremely significant.” She said she hasn’t seen many successful religious exemption claims for traditionally progressive issues, such as immigrants’ rights, environmental protection and anti-death penalty protests.
“Ultimately, what this decision says is that there are other ways that the government can protect its alleged interest in ‘securing the border’ than by prosecuting a person of faith who is trying to prevent people from dying of dehydration,” Platt told HuffPost.
Warren’s defense for the misdemeanors hinged on the Religious Freedom Restoration Act of 1993. According to this law, if a defendant can prove that the government is substantially burdening her “sincerely held religious beliefs,” then the government has to show that it’s using the least restrictive path to achieving its goals.
Democrats introduced RFRA in Congress as a way to protect the practices of religious minorities. It initially had bipartisan support. Some applications of RFRA still have that broad support ― such as when the law was used to defend a Muslim inmate who wanted to grow a beard for religious reasons.
But over the past five years, partly in response to losing ground on issues such as abortion and LGBTQ rights, the religious right has latched onto RFRA as a way to secure exemptions for conservative beliefs. Perhaps most famously, the evangelical Christian owners of Hobby Lobby, a chain of craft stores, successfully used RFRA to avoid paying for insurance coverage for contraception.
Platt said she believes Christian conservatives are using RFRA to request exemptions that require other people to subsidize their religious beliefs.
“They are requesting that the government intervene to force third parties to give up their legal rights―for example, their right to certain healthcare or antidiscrimination protections― to accommodate religious beliefs that they don’t themselves hold,” Platt wrote. “In my view, granting such requests undermines rather than protects religious freedom.”
Warren’s fight for religious liberty looks very different.
For starters, Warren is religiously unaffiliated ― meaning he’s part of a growing group of Americans who decline to identify with any specific religious tradition. Instead, Warren has said he believes he has a sacred, spiritual duty to help fellow human beings in distress.
Warren’s lead attorney, Gregory Kuykendall, told HuffPost the teacher believes he has a religious obligation to “alleviate suffering and prevent death.” When Warren moved to Ajo and learned about the challenges migrants faced while crossing the desert, he struggled at first with how to apply his spiritual beliefs to what was going on around him, Kuykendall said.
“Ultimately, he concluded that when you get right down to the basics, people who have water live longer,” Kuykendall said. “And that’s why he felt compelled to put water in the desert.”
The Religious Freedom Restoration Act (RFRA) being used to uphold our liberal religious values has implications that are exciting and still unknown.
Janine Gelsinger, Unitarian Universalist leader
Warren started volunteering with No More Deaths, which regularly drops water and other supplies in the desert. The group also conducts searches for missing people and recovers any human remains they find.
In addition to Warren, eight other No More Deaths volunteers were charged with misdemeanors for leaving jugs of drinking water in the desert. These volunteers based their defenses on RFRA, and four of those cases went to trial. The judge who decided those cases dismissed the volunteers’ RFRA claims and the four volunteers were found guilty.
Michael Bailey, the U.S. attorney for Arizona, told The Associated Press that the government respect religious freedom rights and has “no interest in prosecuting people for providing life-saving aid to those in genuine acute distress.”
“But we have a crisis on our southern border, and when one’s true intention is to help others gain successful illegal entry into this country, we can and must vigorously prosecute,” Bailey said.
The Trump administration has issued numerous broad policies granting religious exemptions to those who hold conservative views about sex, sexuality, marriage and the family, Platt said. But it has “aggressively challenged” RFRA claims made by people of faith who do not share the administration’s policy goals, she said.
For example, when a faith-based overdose prevention organization tried to open a safe-injection room, the DOJ argued that its “true motivation is socio-political or philosophical — not religious — and thus not protected by RFRA.” DOJ attorneys have also disparaged a group of anti-war Catholic activists, saying that their protests were “an effort to propagandize and obtain secular public policy revisions tinged with post-hoc religious justification.”
Earlier this month, Platt and other Columbia University faculty published a report documenting how the Christian right has attempted to conflate “religious liberty” with conservative Christianity and paint those outside the right as irreligious or anti-faith. But that doesn’t reflect the diversity of America’s religious landscape, the report argues, or the neutrality required by the Constitution.
Janine Gelsinger, a Unitarian Universalist leader from Arizona, was in the courtroom when Collins announced that he was acquitting Warren of one of his misdemeanor charges.
“We all looked at each other with widened eyes as the reality of that ruling set in,” Gelsinger said in a statement. “The Religious Freedom Restoration Act (RFRA) being used to uphold our liberal religious values has implications that are exciting and still unknown. To set a precedent like this certainly protects the work of No More Deaths, and could possibly extend to other humanitarian projects.”
Kuykendall said Warren may appeal the judge’s decision on the second charge of driving a vehicle through a wilderness area. The attorney argued that it’s unreasonable to expect Warren to fulfill his religious beliefs by trekking to a remote area of the desert on foot, carrying water and food supplies on his back. Warren and his attorneys will make a final decision about whether to appeal in February, after his sentencing.
Collins announced his decision about the misdemeanor charges the same day a jury acquitted Warren of felony charges of harboring undocumented immigrants. It was the second time federal prosecutors sought to throw Warren in jail for a separate 2018 incident in which he helped two migrants at a humanitarian aid station in the Arizona desert. (An earlier trial for the felony charges had ended in a hung jury).
Bailey, the U.S. attorney, told NPR the felony verdict won’t deter the government from continuing to prosecute harboring cases, even if that person is “doing it out of a misguided sense of social justice or belief in open borders.”
After his verdict was announced on Wednesday, Warren told supporters gathered outside the courthouse, many of whom were Unitarian Universalist leaders, that his goal has been to educate people about the humanitarian crisis at the border.
“The government failed in its attempt to criminalize basic human kindness,” Warren said.
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