(RNS) — It is good that the Archdiocese of Miami has, at last, been able to minister to detainees in the “Alligator Alcatraz.” More than welcome good news for detainees, it also proves that U.S. Immigration and Customs Enforcement can be held accountable when religious leaders bring pressure. That lesson is good. But it needs to be taken several steps further.
On July 22, Religion News Service reported that Miami Archbishop Thomas Wenski had joined a protest calling attention to how detainees in “Alligator Alcatraz” were being denied access to religious services. The problem was not confined to Florida, nor was it particularly new. Archbishop Wenski’s direct involvement, like San Diego Bishop Michael Pham’s urging of priests to bear witness at immigration courts, reflects a new moment in Catholic activism. The Trump administration’s immigration enforcement has opened a new moment in Catholic activism in the United States, even at the church’s highest levels. This is something to pay attention to. It is showing results.
But I can report that the problem still exists among detainees elsewhere in the federal system. One detainee with whom I am in indirect contact reports that they and fellow detainees have resorted to reciting the rosary and singing hymns in their detention cell because requests for access to religious services have been thwarted. They said, “para ir a misa debe meter un request yo lo meti pero no me han llevado” (“To go to Mass, you must submit a request. I submitted it, but they haven’t taken me.”) That was July 13. As of this week, the situation still has not changed.
It is perhaps understandable that ICE has trouble keeping pace with the religious needs of detainees. The detention of migrants has scaled up at an extraordinary pace across the last six months, and there are only so many resources to be found. Then again, the “Big, Beautiful Bill” found $75 billion for ICE enforcement and, as Archbishop Wenski said, “They could build that place in less than a week, so it doesn’t seem that it should take two or three weeks to tell the archbishop of Miami his priest can go in to minister to the detainees.” That is why it seems like Republican support for religious freedom is selective. And, being selective, their commitment to “celebrate and protect religious freedom” looks insincere.
ICE’s own policy manual for detention facilities demands that “Detainees shall have regular opportunities to participate in practices of their religious faiths, limited only by a documented threat to the safety of persons involved in such activity itself or disruption of order in the facility.” Access to the practice of religion is not optional, even by ICE’s own standards. And of course, there is also the U.S. Constitution.
This is the genuinely troubling part. Across the last decade, Republican candidates have won votes from Christians and other believers with their determination to “celebrate and protect religious freedom.” That commitment had resonance across a range of issues — abortion, marriage and even economic questions like health care and the rights of business owners. The courts expanded religious liberty during the same period. The identification between religious belief and the Republican Party has reached a point where, for the first time, religious belief is part of the division between the parties. As one scholar has put it, “If you’re a white person and religious, you’re almost Republican by default.” Yet, all that concern for the Constitution’s protection of religious liberty has landed at a point where Republican officials will not heed the cries of people they have detained who only want to practice their faiths.
This summer has brought these contradictions into sharp focus. On June 27, the U.S. Supreme Court announced its decision in Mahmoud v. Taylor, with a majority opinion from Justice Samuel Alito. The case continued the development of the court’s religious liberty jurisprudence, emphasizing the government’s duty “to protect as much religiously motivated behavior as possible,” up to the point of permitting religious believers “a constitutional right to exemptions from otherwise valid laws.” A growing list of exemptions from otherwise valid laws for religious believers is now constitutional.
Yet it is difficult to take the White House’s commitment to religious freedom seriously when CBS News reported that the U.S. government holds more than 59,000 people in immigration detention with uncertain access to chaplains and ministers. More difficult still when religious freedoms were ignored for weeks in the newly opened and cruelly dubbed “Alligator Alcatraz,” and when White House Deputy Chief of Staff Stephen Miller encouraged other states to replicate Florida’s effort and create an archipelago of immigration jails. (Indiana recently announced it would build the “Speedway Slammer” near Indianapolis.) The number of detained persons will rise. The offenses against religious freedom seem poised only to increase.
And so, perhaps it is time to take the Supreme Court’s exemptionist approach to religious freedom more seriously — to take Archbishop Wenski’s success as encouragement and put the exemptionist approach of Alito’s jurisprudence to good use in the federal courts.
A few legal avenues suggest themselves. First, it should be easy to obtain court orders instructing ICE and state governments to obey the Constitution (and ICE’s own policy) and permit chaplains access to detainees. Religious organizations frustrated by government in the exercise of their ministries would have standing to seek them.
More boldly, I hope some religious organizations might claim the ancient privilege of sanctuary. Until the Trump administration changed the policy earlier this year, the U.S. government recognized “‘sensitive locations’ such as churches, schools, and hospitals” as places where ICE should not detain people. Sanctuary is not recognized in U.S. law today, but it is not alien to our tradition, and church property has been a safe haven since the ancient world — “every major medieval legal tradition afforded protections to fugitive criminals who took sanctuary in churches.” At a time when judges like Samuel Alito are citing history and English common law, this exemption for believers and religious organizations from otherwise applicable laws seems worth testing in court, too.
Such legal actions would be good news for detainees, even though they would do nothing to stop the mounting pace of immigrant detentions. But shining this sort of light on what Republicans are doing might just awaken the consciences of the believers who voted for all of this.
Untold numbers of people in detention cells are praying that someone will do something.
(Steven P. Millies is professor of public theology and director of the Bernardin Center at Catholic Theological Union. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)