Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom The Justice Department wants to get tough on illegal immigration and boost religious freedom. But a case involving aid to migrants has put the two on a collision course.
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Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom

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Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom


Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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Attorney General Jeff Sessions has made getting tough on illegal immigration a top priority at his Justice Department. Another top priority for Sessions - defending religious liberty. So what happens when those two are pitted against each other? NPR justice reporter Ryan Lucas traveled to Arizona to find out.

RYAN LUCAS, BYLINE: The old mining town of Ajo is set among the jagged mountains in organ pipe cacti of Arizona's Sonoran Desert, and it's at a ramshackle wood and corrugated tin building on the outskirts of town that this story begins.

CATHERINE GAFFNEY: Open it up. So we're at the private residence called the barn. It's been a base for humanitarian aid groups working in the west desert Ajo corridor.

LUCAS: That's Catherine Gaffney, a volunteer with the group No More Deaths. They provide humanitarian aid to migrants such as leaving food and water in the desert to try to save lives of those crossing illegally in the borderlands. It was here at the barn in January that border patrol agents arrested Scott Warren, an activist and No More Deaths volunteer.

Warren was taken into custody along with two migrants who received aid and shelter at the barn. Federal prosecutors charged Warren with harboring and conspiracy to transport and harbor the migrants. No More Deaths have used that as an effort by the government to crack down on groups providing aid to those trekking the desert.

GAFFNEY: What we see under DOJ now is that they're going after the activists.

LUCAS: That includes, she says, Scott Warren. Warren's case takes a twist when it moves from the desert into a federal courtroom because it's there that his lawyers have staked out a defense based in part on the Religious Freedom Restoration Act also known as RFRA. In simple terms, what Warren is saying is that his faith compels him to offer assistance to people in need, including immigrants. Columbia Law School's Katherine Franke is one of a handful of law professors who submitted a friend-of-the-court brief in Warren's case to help explain the statute. Here's how she puts it.

KATHERINE FRANKE: RFRA provides an exemption from a law that would apply to everyone else in limited circumstances if the application of that law would result in a kind of discrimination against one's religious practice.

LUCAS: Congress passed RFRA in 1993. The idea was to protect the exercise of religious beliefs, particularly of religious minorities, by providing narrow exceptions neutral laws - for example, allowing a religious group to use an otherwise illegal drug such as peyote that is central to their observances. In recent years, Christian evangelical groups increasingly have used a law to advance their causes.

As Attorney General Jeff Sessions has taken up the banner of religious liberty, last year he issued a memo with guidance on federal protections for it. And in a July speech, he vowed to aggressively protect religious liberty. Sessions created a task force to help the Justice Department do so. One of its jobs is to make sure the cases DOJ attorneys bring and defend and the arguments they make in court are in line with federal protections for religious freedom.


JEFF SESSIONS: That includes making sure our employees know their duties to accommodate people of faith. As the people in this room know, you have to practice what you preach.

LUCAS: But some say the Justice Department is failing to do just that. Instead, they say, it is selectively supporting religious liberty. Again, Franke...

FRANKE: There's a public face of this government which is very protective of religious liberty, and then the real work that they're doing is only protecting the religious liberty rights of those who are religious conservatives, not of religious progressives.

LUCAS: The American Civil Liberties Union says the administration's view of religious liberty is selective and indifferent, even hostile to faiths and religious people with which it disagrees. Many conservatives on the other hand have lauded the administration's support for religious liberty.

Under RFRA, Warren has to show three things to make his case - that his beliefs are religious in nature, that they are sincerely held and that they are substantially burdened by a law that applies to everyone. If he can show those three things, then the burden of proof shifts to the government. Prosecutors have to show that the government has a powerful reason to apply the law in Warren's specific case. They also have to show that the government is using the least restrictive way possible to accomplish that. The government says for its part, it has done just that. So what are Warren's religious beliefs? I visited his parents, Mark and Pam, at their home outside Phoenix to find out.


LUCAS: Hello, Mark.

M. WARREN: I'm Mark, yeah.

LUCAS: Mark and Scott testified about their beliefs at a hearing earlier this year. They described a life force that connects everything in the world.

M. WARREN: It's more than just, gee, wow, isn't nature grand, you know? More conventional religions are about dedicating your life to some something larger than yourself and that sort of thing. Well, this dedicates your life to the largest thing there is. That's the universe itself.

LUCAS: At the court hearing, prosecutors probed Mark and Scott on their beliefs. To the Warrens, it felt like the government was giving their views short shrift. As I talked with Mark, Pam spoke up from a couch on the other side of the living room.

PAM WARREN: The prosecution came up and just started saying, what church did you - do you go to? I mean, what building do you attend church in - just brought it right back to, well, you can't be that religious if you don't go to church in a building. So right away I thought they were kind of mocking them in a sense.

LUCAS: The U.S. Attorney's Office for the District of Arizona declined to comment on Warren's case which is winding its way through the judicial system. A district court judge denied his motion to dismiss two of the counts based on RFRA grounds, but the judge left the door open to Warren to try again at trial. Ryan Lucas, NPR News, Ajo, Ariz.

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