The Supreme Court of Texas just heard oral argument in a case challenging a remarkably punitive and malicious attack on religious liberty by the state of Texas. That attack isn’t just dangerous on its own terms, it’s also a potential preview of President-elect Donald Trump’s second term. MAGA’s cruelty toward immigrants and its disregard for civil liberties are on full display in the Lone Star State.
Last year, on Feb. 7, lawyers from the Texas attorney general’s office showed up at Annunciation House, a religious nonprofit founded by local Catholics that provides food, shelter and clothing for migrants in El Paso, and demanded “immediate access” to its records regarding its past and current residents.
As Annunciation House explained in a brief to the Texas Supreme Court, the subpoena stated that the shelter would forfeit its right to do business in the state if it failed to comply. Annunciation House requested time to speak to a lawyer, and Texas granted it 24 hours to comply, but again threatened to close the shelter if it didn’t.
Annunciation House went to court to try to block enforcement of the subpoena and to clarify its legal obligations, according to the organization’s brief. Texas retaliated immediately; the state filed a counterclaim against the shelter seeking to terminate its corporate charter and end its right to operate in Texas.
Texas took action against Annunciation House because it suspected that the house was illegally “harboring” undocumented immigrants and conspiring to assist those without authorization in their efforts to cross the border. It also claimed that the shelter had impeded law enforcement efforts to detain illegal immigrants, and pointed to an episode that occurred more than two decades ago, in which an undocumented immigrant was shot and killed outside Annunciation House’s facilities, after running from the police.
Annunciation House disputes those claims. In its court filings, it states that it is in daily communication with federal immigration officials, that federal officials refer immigrants to stay at an Annunciation House shelter, and that without the availability of Annunciation House’s hundreds of beds, thousands more immigrant families would be homeless.
While the majority Annunciation House residents are “documented,” meaning they’ve been processed by federal authorities and given a Form I-94 identification document, the shelter does contain some unprocessed and undocumented immigrants, including migrants released from hospitals. But it denies concealing or hiding migrants from law enforcement.
Annunciation House also denies that it conspires to assist people in crossing the border illegally. Instead it says it has assisted individuals in making lawful claims for asylum.
The shelter says it has an agreement with the federal government that it will accept refugees referred from the government, but it will assume no law enforcement role itself. “Under this arrangement,” Annunciation House claims, the shelter “has cooperated with federal authorities for a decade, under presidential administrations of both political parties” and “has kept hundreds of thousands of refugees off El Paso streets.”
I do not pretend to know whether all of Annunciation House’s efforts have complied with Texas state law. The two sides are locked in a heated dispute about that very question. But here’s what I do know: In the state’s zeal to close Annunciation House, its attorney general, Ken Paxton, is attacking the shelter’s religious rights.
Texas, like the federal government and 27 other states, has passed a religious freedom restoration act. Under the Texas version, which is very similar to its federal counterpart, “a government agency may not substantially burden a person’s free exercise of religion” unless that agency is advancing a “compelling government interest” and is using the “least restrictive means” of advancing that interest.
Paxton argues that closing Annunciation House won’t substantially burden its free exercise of religion. Why? Because according to Paxton, Annunciation House, which mainly serves the poor, doesn’t engage in many religious rituals. Here’s a quote from Paxton’s brief:
Annunciation House’s house director testified that Annunciation House (i) goes periods of “nine months, ten months” without offering Catholic Mass, (ii) does not offer confessions, baptisms, or communion, and (iii) makes “no” efforts to evangelize or convert its guests to any religion.
In other words, Annunciation House isn’t Catholic enough to earn Pope Paxton’s seal of approval.
This is absurd — and threatening to American civil liberties. First, it’s ridiculous to believe that service to refugees isn’t “free exercise” all by itself. In fact, serving the poor is one of the purest forms of religious service that exists. It’s mandated or endorsed in, by one count, more than 2,000 passages in Scripture. It’s also one of the most ancient manifestations of Christian service and identity.
The very idea that a state official would take it upon himself to judge a faith-based institution’s religiosity and authenticity is deeply problematic. It entangles the state in ecclesiastical affairs. Whenever public officials pass religious judgment on expressions of religious faith, it raises profound Establishment Clause concerns.
In addition, it’s bizarre to argue that closing Annunciation House is anywhere close to the least restrictive means of enforcing Texas’s immigration laws. If a court determines that any aspect of the shelter’s conduct violates Texas law and is not protected by the state’s religious freedom laws, it can issue an injunction against the conduct. Texas does not have to close the shelter to enforce compliance with state law.
Paxton is shameless. He’s a professing evangelical who is under federal investigation for public corruption, cheated on his wife and was impeached by the Republican-dominated Texas House of Representatives over allegations that he had provided improper favors to a major campaign donor. (He was acquitted by the Senate.) And yet, here he is opining on the authenticity of Annunciation House’s faith practices.
But cruelty and hypocrisy are par for the course in MAGA politics, and Paxton’s cruelty and hypocrisy may well represent a preview of Trump’s next term.
A state judge in El Paso blocked Paxton’s subpoena and rejected his efforts to revoke the shelter’s charter. But Paxton appealed to the Texas Supreme Court, and last Monday the court heard oral arguments in the case.
The one consolation in this miserable affair is that Paxton is facing significant resistance from traditional legal conservatives who support religious freedom as a core constitutional value.
First Liberty Institute, a conservative public interest law firm that defends religious liberty, filed an amicus brief supporting Annunciation House.
America First Legal Foundation, a MAGA legal organization founded by Stephen Miller, one of Trump’s most loyal and influential advisers, filed a brief supporting Paxton. Taken together, the two briefs demonstrate the legal divide on the right. First Liberty is making the traditional conservative argument — that government actions must clear a high hurdle to justify a burden on religious freedom.
America First, by contrast, pays lip service to religious freedom, but when it comes to MAGA’s core priority — a crackdown on immigration — civil liberties take a back seat. The brief even scorns the idea of enjoining potentially illegal activity as an alternative to forced closure. Apparently only the most punitive measures can accomplish MAGA’s goals.
And that is precisely what is so alarming about Trump’s fever dream of mass deportation.
To defend Annunciation House, one doesn’t have to defend widespread illegal immigration. America needs secure borders, and while not every illegal immigrant should be deported (dreamers, for example, should be permitted to stay), deportations are a necessary part of immigration enforcement. But cruelty is unacceptable, and civil liberties should be sacrosanct.
I spent most of my career in courtrooms arguing in support of free speech and religious freedom (in fact, one of the lawyers on First Liberty’s brief is a former colleague). Religious pluralism is one of our republic’s greatest achievements. People of all faiths and no faith at all can speak and act in accordance with their deepest values, provided that they don’t violate the rights of others.
In this case, Texas hasn’t proven that Annunciation House is violating anyone’s rights. To the contrary, the weight of evidence indicates that Annunciation House is performing an important public service. Migrants — regardless of their legal status — should not lack for food, clothing or shelter.
Our communities are not better off if migrants live on the streets.
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