Charity, Religion, Immigration, and Federalism


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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12 Responses

  1. Avatar Jason Kuznicki says:

    The Pew Hispanic Center says there are 120,000 illegal immigrants in Alabama (population 4,779,736).

    But I’m glad I kept reading this comment anyway. “Faith-based clerics.” Now that’s a keeper!Report

  2. shall not receive any state or local public benefits.

    I’m not a lawyer, but this seems to refer only to benefits provided by the state. I suppose that if a religious institution works with the state–say, it helps administer a city’s lunch program–then it is acting within the meaning of that phrase. But in that case, the church could just refuse to work with the state and have its own charity.

    Also, the section 13, at least from the portion you cited, does not seem, to me, to implicate charity at all.

    At any rate, I’m not trying to defend the law. I just don’t see the first amendment connection.Report

    • Avatar RTod in reply to Pierre Corneille says:

      A non-profit corporation’s work is considered public; in fact, that actual term for a charitable 501-C3 is “For Public Benefit.”

      This is why their financial records, Board minutes, and almost anything not restricted by special privacy laws (personal employee info, HIPPA related issues, etc. – anything that a government agency could to make public either) are considered public record.Report

  3. Avatar Burt Likko says:

    Here’s the connection:

    1. Illegal immigrants are purportedly attracted to Alabama by the generous social services on offer there, causing a suite of problems.

    2. The state therefore criminalizes offering social services to illegal immigrants.

    3. Churches are in the business of offering social services through their charitable ministries.

    So if a church’s charity gives away winter jackets to ten or more people that it has reason to believe are illegal immigrants, the church has commtited a felony. As I wrote, it’s probably fair to say that the state wouldn’t likely charge a church with a crime for giving away winter coats — but since section 13 criminalizes any enticement or succor of any kind, the state could theoretically do this if it chose to.

    Now, you may find risible the notion that someone from Mexico would be motivated to make the dangerous journey to el Norte and find their way to Alabama lured by the tales of the posh and luxurious Episcopelean homeless shelter in Montgomery. But it’s no more silly an idea than the notion that they’d go there so that their kids could enroll in Alabama’s world-famous public schools (which rank 44th out of 51 in graduation rates, 62% overall graduation rate and 33% graduation rate for Hispanics although to be fair, if Alabama students do graduate, they seem to do just a little bit above average on their SAT’s).Report

  4. Avatar patrick says:

    Hey, Burt?

    Thanks for blogging. I’m always interested in the finer points of the law, but I don’t have the time to go back to school for yet another degree. Writeups like this are invaluable in describing the legal context of disputed legislation.Report

  5. Avatar DensityDuck says:

    I guess my question is what happens when someone gives religiously-motivated charity to another sort of criminal? For example, someone robs a bank and then hides in a church; the priest hears their tearful tale of starving orphans and lost jobs, and lets the thief go. Is the priest guilty of aiding a fugitive in this case? What if they let the person go and then call the police?

    (I’m not trying to make a rhetorical point, I’m just wondering what happens in other seemingly-similar cases.)Report

    • Avatar Burt Likko in reply to DensityDuck says:

      If the robber confessed his crime, then he was also confessing a sin, which means that the communications are privileged since the cleric was rendering spiritual succor to a penitent sinner. Every state and the federal rules all allow for that privilege in their evidence codes.

      Otherwise, what you describe would be the crime of obstruction of justice.

      Alabama’s law is different in that the duty to report is triggered as soon as the caregiver reasonably suspects that the person is an undocumented alien. There is no confession going on here, so the clergy-penitent communication privilege is not in play.Report

      • Avatar patrick in reply to Burt Likko says:

        Chiming in a sec:

        > If the robber confessed his crime, then he
        > was also confessing a sin, which means
        > that the communications are privileged
        > since the cleric was rendering spiritual
        > succor to a penitent sinner.

        IIRC, at least in Roman Catholic dogma, the confessional is only privileged from the Church’s view if the criminal is actually penitent. There’s a difference between saying, “I did (bad thing)” – which is a legal confession – and, “I did (bad thing), and I repent and beg God’s forgiveness.” – which is a theological confession.

        If you walk into a confessional and admit to a crime, but you don’t express contrition or execute your penance, the priest is not actually bound to hold your confession in confidence. However, he has to call on his bishop to vet the issue, he’s not supposed to make that call entirely on his own.

        So it would actually be possible for a priest to hear a confession of a serial killer and presuming he believed it was possible that the killer would do it again, confer with his bishop and then inform the secular authorities.Report

  6. Avatar Member548 says:

    My religion commands me to drive every Porsche I find to a secure and holy location, i.e. my garage, yet the state insist on placing me in jail for car theft.Report

    • Avatar Burt Likko in reply to Member548 says:

      Hard to say if you’re being whimsical or sour here.

      Were you to have been serious, I would question the sincerity of this religious belief. You’re going to have difficulty meeting the first prong of the Sherbert test.

      The state will probably do pretty well on its part of the test also, if you ever manage to shift the burden in the first place.Report