Sanctuary: A Question for the Church

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Sanctuary: A Question for the Church

A Study Paper of the Lutheran Church in America

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Sanctuary

Many churches have become aware of the needs of these undocumented people and have declared themselves to be places of sanctuary. According to the manner in which the immigration law is implemented by the INS at present, the act of sanctuary is to be recognized as an act of civil disobedience against the United States government, not Central American governments. This act protests the refusal to grant political asylum to Central Americans displaced by violence and war, thereby declaring them to be in this country illegally.

Although some supporters of sanctuary for displaced undocumented aliens identify this act with the ancient practice of hospitality, the Old Testament tradition of cities of refuge, and a romanticized interpretation of the Exodus narrative, none of these ancient traditions serves as a theological justification for sanctuary

Hospitality was recognized as a sacred obligation throughout the Mediterranean world and was very stringently observed. This practice stems from nomadic life, since public inns were rare and every stranger a potential enemy. Fear, rather than compassion, concern or generosity, was frequently the motivating factor for the host. Moreover, he never knew when the hospitality of others might be required. The guest and his entire entourage, including animals, were given lodging and food. Even if the guest was an enemy, he enjoyed protection for three days and thirty-six hours after eating with the host (H. V Koon, "Hospitality:' Interpreters Dictionary of the Bible, p. 654).

The designating of `cities of refuge' is a specific instruction to identify six of the forty-eight towns given to the Levites during the settlement of Canaan as places "in which the homicide may take sanctuary" (Num 35:6 RSV). The homicide is defined as one who has killed a person by accident; the sanctuary offered is protection from possible revenge by the victim's next of kin (Num 35:9)15). The sanctuary provided in these cities is specific and not directed to protect people from unjust legal reprisals, but from the familial obligation to carry out the execution of one who has murdered a member of his family (Num 35:2!). The person protected in the city of refuge was required to stay in that city until the death of the duly anointed high priest. Outside the boundaries of the refuge city the murderer received no special protection; the next of kin, finding the murderer outside the boundaries of the refuge city, could avenge the murder without penalty to himself (Num 35:22)29).

Nor can a romanticized interpretation of the Exodus be either a model or a justification for sanctuary. Although the Israelites were released from their cruel slavery by God's act through Moses, they soon began to complain about the "living conditions" in the desert, especially the lack of water and food (Ex 16:2)8). At Sinai they soon abandoned the God of Abraham, Isaac and Jacob, constructing and worshiping the golden calf (Ex 32:1)4). When God gave them manna, they were not satisfied and became angry at God (Num 11:4)9). Because they turned to other gods, the Lord sent poisonous snakes among them to kill them; upon their repentance the Lord allowed Moses to effect a cure for those who had not yet died (Num 21:4)9). The story of the Exodus does not revolve around human forms of justice or political or economic categories of oppression or liberation, but around the theological concepts of faithfulness and idolatry

The ancient custom of hospitality, the Old Testament identification of several Levite cities as cities of refuge, and the Exodus narrative may not be properly used as biblical precedents for the present sanctuary movement. Using them as such misuses these concepts by taking them out of their theological, historical and literary contexts and elevating them to the level of principle. Proof-texting current practices by uncritical appeal to isolated biblical references does a disservice to the biblical authors and ignores the theological, historical and legal dimensions of the issue at hand.

In matters of political action Christians must act responsibly in freedom. Decisions made in the political realm are often ambiguous, and each decision should be made with conviction and in good conscience. The grace of God allows Christians to use non-theological resources to make political decisions, reminding us that such decisions are not redemptive, but provisionary. Faithful Christians may be found on both sides of a political question, conscientiously taking the risk of their own position. Disagreement over the proper course of action may ensue. Still, the church is not united by its political policy, but by the proclamation of the Word and the administration of the Sacraments and its confession of faith that God sent God's son to the cross for the justification of the ungodly (Rom 4:5).

Decisions about proper political action are, therefore, a matter of individual and, in the case of congregations, collective conscience. In the freedom of God's grace such decisions are made. This is especially true in deciding to declare sanctuary. In making such a decision many factors, theological, political, economic and social, must be weighed. The congregation must not only assess its desire to care for the individual Central Americans, but also its ability to provide proper care for them and its willingness to risk incurring civil penalties. Any decision made to accept Central Americans or not must not be viewed as either divine or demonic, but the responsible act of Christians living out their love in freedom. Any other interpretation takes such decisions out of the realm of provisional political action and runs the risk of allowing the act itself to become an idol. Sanctuary should also not be confused with the assistance to refugees which Christian churches, including the Lutheran Church in America and its predecessor bodies, have historically provided.

One only needs to think of the tremendous efforts of the churches in Europe after the Second World War on behalf of the refugees there, or the help given the boat people from southeast Asia in the last twenty years by congregations through the Lutheran Immigration and Refugee Service, to see the truth of this claim. However, this aid did not involve acts of civil disobedience, but legal acts of human compassion. Sanctuary differs from aid to refugees in that it is first and foremost an act of civil disobedience. The issue in declaring sanctuary does not principally revolve around the desire to assist displaced people, a practice this church has consistently supported, but around the issue of the propriety of the church to judge the implementation of law by an agency of the government, and to engage publicly in activities that violate the law of the land. In other words, there is no question that our churches are encouraged to assist displaced people legally in residence in the United States. The question to be determined is whether or not the churchwide agencies of the Lutheran Church in America should support, both nominally and financially, congregations that have declared themselves places of sanctuary.

In the social statement, "Race Relations:' adopted by the Lutheran Church in America in convention in 1964, criteria for acts of civil disobedience were established:

Christians are committed to the rule of law as an expression of the moral law of God. Nevertheless, it must be recognized that laws have been and may in the future be enacted, or social customs may exist, which are believed to be in basic conflict with the constitutional law of the land or the moral law of God. In such circumstances, the church, its congregations, synods, agencies and institutions, including their representatives, as well as individual members, are recognized as free by all lawful means, including participation in peaceful public demonstrations, to urge repeal or invalidation of such laws or to effect change of such customs.

If and when the means of legal recourse have been exhausted or are demonstrably inadequate, Christians may then choose to serve the cause of racial justice by disobeying a law that clearly involves the violation of their obligations as Christians, as long as they are

a. willing to accept the penalty for their action;

b. willing to limit and direct their protest as precisely as possible against a specific grievance or injustice;

c. willing to carry out their protest in a nonviolent, responsible manner, after earnestly seeking the counsel of other Christians and the will of God in prayer.

Certainly, this response to the civil rights movement of the 60s did not envision many of the complexities associated with the question of sanctuary today. For example, in requiring that all legal means of recourse be exhausted, which in this case would include application to INS for refugee status, there is no provision that takes into account that such application might result in injury to others not present. Thus, in evaluating this requirement, we must act more by the spirit of the statement than the letter.

We must pause here and clearly state that the act of civil disobedience inherent in declaring sanctuary is solely related to those giving sanctuary, not to the undocumented people who are in protection. These people are declared to be in violation of the law by INS; the people offering sanctuary have chosen to disobey the law as it is presently implemented.

There is a matrix of issues surrounding the question of sanctuary. We shall look at some of the most important to begin to develop criteria by which to construct a policy.

Sanctuary: A Public Act of Civil Disobedience

The declaration of sanctuary is a public act. It may be intended not only to protest the way the INS is implementing the law with respect to refugees from Central America, but also to influence change in U.S. foreign policy toward Central America. Such a public act includes not only a public declaration against the existing implementation of the law; it also includes an active and continual program of advocacy.

Further, a declaration of sanctuary should not become an act of civil disobedience which creates a situation of dependence, namely, that those in sanctuary become totally dependent for their well-being on those who are giving sanctuary. This potential of dependence must be fully recognized and addressed, making clear the mutual obligations of all parties involved.

When a congregation declares itself a sanctuary, not only is the congregation at risk of prosecution by civil authorities, specific individuals who participate in aiding those in sanctuary may also be implicated. The risk is real; no appeal to the obedience of a "higher law" lessens this burden. While this church recognizes the right and privilege of each individual to express his or her own opinion, and while this church acknowledges the right of citizens to test the law in the courts, this church also recognizes that, after all legal appeal has been exhausted, should a penalty be imposed by the courts, either in terms of a fine of a jail sentence or both, that penalty must be accepted.

Sanctuary Defense Funds

Because of the legal risks, sanctuary defense funds have been established to aid United Stated citizens who have been indicted for harboring people who are considered to be "illegal aliens' These defense funds must be clearly distinguished from any financial support designated to aid refugees in sanctuary; any decision to contribute to sanctuary defense funds must be considered separately from decisions to contribute to programs which protect undocumented persons. This is not to indicate a prejudice of one over the other, but to recognize sanctuary defense funds as a distinct issue under the larger rubric of sanctuary.

In making decisions about contributing to sanctuary defense funds, we must be careful to recognize such funds as a means for advocacy and protecting the civil rights of the accused, not as an avenue of escape from penalty of law, since they have willfully and conscientiously entered into acts of civil disobedience. The success of a legal defense in such a case should not be measured by the verdict, but by the effect such a case might have on changing the way the laws are implemented by INS. Further, a defense fund must not be used in such a way as to publicize one case for political reasons while neglecting the civil rights of another to due process of law. In any event, defendants who may readily admit to having given sanctuary to a Central American may not consider the issue to be their own guilt or innocence. Rather, it is their intent that US. foreign policy and its effect on the implementation of law by INS should be put on trial. Should all legal appeals fail, the person convicted must accept the penalty imposed by the court.

It should be noted that an appeal to religious liberty is not a proper defense in such a case. The question of religious liberty involves the right of each citizen to the free exercise of religion, not the claim to violate law on the basis of religious convictions. The implementation of immigration laws by the INS in no way impinges on the freedom of United States citizens to practice religion, although some sanctuary churches have reported that INS investigative procedures have intimidated some of their members and caused them to withdraw from full participation in church life.

Sanctuary defense funds should also be distinguished from funds designated to aid undocumented persons in their pursuit of .legal status in the United States. Any fund designated to aid these refugees may be considered part of a program of advocacy and thereby is distinguished from defense funds established to provide legal aid for those offering sanctuary.

Safe Haven

While moved more by a concern to aid Central American refugees, but reluctant to place themselves or the Central Americans in immediate jeopardy by making their place of hiding public, some congregations have chosen the private act of offering "safe haven" to refugees. Such congregations may not be motivated to take public positions against U.S. foreign policy towards Central America or the INS implementations of immigration laws, but are moved to give aid and comfort to the displaced victims of warfare.

The primary distinction between sanctuary and safe haven is that in the former there is a desire to make a public and open declaration of sanctuary, protesting the present policies of government, while in the latter there is a desire to remain in secret. Actually, both activities, sanctuary and safe haven, stem from the same concern to aid displaced Central Americans until such time as it becomes safe for them to return to their homeland.

Even though engaging in safe haven is a clandestine activity, those who choose to do so must not presume that they are free from legal risk. The INS draws no distinction between sanctuary and safe haven; both are viewed by the present implementation of law as being the same illegal act and those who engage in either of them are under the same threat of arrest and punishment.

Sanctuary or Safe Haven?

For congregations that have decided to harbor Central Americans illegally in the U.S., but are not sure whether to engage in this act of civil disobedience openly or not, it may be helpful to look at the advantages and disadvantages of each option.

When a congregation declares itself to be a place of sanctuary, it not only opens its doors to displaced Central American refugees, but also enters publicly into the debate about the effect of U.S. foreign policy toward Central America upon the implementation of immigration law. It is also possible that such a congregation may choose to test the implementation of these laws in the courts, thereby attempting to find an avenue legally to change the current situation. The disadvantage of a public declaration of sanctuary, however, may be that it would limit the congregation to accepting only those Central Americans who would be willing to have their place of lodging known publicly and to speak openly about the issues. Obviously, an open declaration of sanctuary by a congregation may expose all of the congregation to investigation and possible harassment by INS officers and their agents and increase the risk that people involved with the aid and transportation of the Central Americans might be arrested.

An act of safe haven, on the other hand, would not allow the congregation the same opportunity to affect US. public policy. Unless individual Christians decide to make their personal views known, an action which they may take in any event, there will be no deliberate effort to influence public policy. Safe haven, however, may provide avenues of service not available when a public declaration of sanctuary is made. This clandestine situation may allow more people to feel free to serve, believing that their participation in this illegal act will be less likely to be discovered. Further, a place of safe haven may be more attractive to displaced persons who neither wish to make their presence public nor speak out about the treatment of displaced Central Americans in the United States. The fear of deportation for some of these people is real, and the fear they have for the safety of others still in their native land may deter them from openly acknowledging their presence in this country.

Whether a congregation chooses to declare itself a place of sanctuary or whether it wishes to offer its facilities and resources as a place of safe haven, that choice must be clear and deliberate. Before a congregation enters into either of these activities it should carefully identify its motives and goals for this work, and must be fully aware of the risks and consequences involved in such a decision. Without such open discussion, a congregation runs the risk of falling victim to its own good intentions and blindly engaging in an activity which may lead to unanticipated consequences.

Immunity in Church Buildings

In identifying a church building as a place of sanctuary, one should not make the mistake of claiming that it is a "sacred space" not liable to legal entry and search by civil authorities possessing a proper warrant. As an institution under God's left-hand rule, congregations are required to comply with the regulations of the state (building codes, zoning regulations, financial obligations, etc.). Therefore, they are not exempt from authorized search by police, nor does anyone who is in the building enjoy any privileged immunity from arrest. While civil authorities may normally prefer not to enter a church building for fear of adverse publicity, the risks of arrest and prosecution should not be minimized.

Churchwide Support of Sanctuary

As noted above, the issue of undocumented persons seeking refuge from threatening situations in Central America raises questions not foreseen in the social statement of 1964. Should the churchwide agencies of the Lutheran Church in America, or any synod, decide to support sanctuary congregations, the following are some criteria which might be considered.

First, the congregation, the pastor or some responsible spokesperson for the congregation must be convinced that the people who are being protected are truly undocumented aliens legally deserving of refugee status or political asylum. Because of the risks involved in divulging personal information, including such basic information as one's name, definitive proof of a person's claim to refugee status may not always be available, and the application for refugee status to the INS may not be deemed safe. However, there must be a gesture of good faith expressed by the congregation or its representative, that the persons being protected are indeed refugees. This might take the form of a notarized document which would be treated as a public declaration of sanctuary, and therefore not considered confidential, stating that the people being protected are believed beyond a reasonable doubt to be refugees. Forwarding of this document to the Lutheran Church in America would serve notice of the congregation's involvement as a place of sanctuary. This document would also be considered a public declaration of civil disobedience, protesting the implementation of the immigration laws by INS. Such a document does not insure the claims of the people being protected. It is understood to express the sincerity and good faith of those offering sanctuary.

Second, in order to insure that those in sanctuary are not placed in a position of total dependence, the relationship constituted by the act of sanctuary must be construed as one of mutual responsibility.

The people offering sanctuary must make every effort to insure the dignity of those they house. Obviously, this includes providing the basic human needs of food, clothing, lodging and medical care. It also includes responsibility for the welfare of any children born to people in sanctuary. Further, as the need may arise, the congregation is responsible for furnishing legal assistance for those in sanctuary. Such assistance might take the form of addressing the INS or assisting the people in resisting deportation.

Ways should also be found to help the people in sanctuary develop relationships with others in the congregation and, if possible, with other people in sanctuary. It should also be the responsibility of the congregation to provide whatever educational or occupational opportunities might be appropriate for the people in sanctuary, so that the time they spend might bear fruit for their future life. This is especially important to consider if the people in sanctuary are relatively young.

The people in sanctuary must not simply view themselves as being "housed;' but should be encouraged to view themselves as contributing members of the worshiping community. If they are Christians, then they might participate in the worship life of the congregation as is permitted by the circumstances. It may also be possible for them to lead seminars, both within the congregation, and perhaps in the community in a limited way, on the issue of undocumented aliens in the United States and the reasons for the sanctuary movement. Ideally, these seminars should go beyond "telling stories" and also deal with more substantive issues. They may find other ways to use their skills within the congregation, either gratis or for wages, as the situation dictates, for the benefit of the congregation and its members. While it is unlikely that such a person may be able to obtain a job in the outside community, it may be possible for such a person to do "odd jobs" for the church and members of the congregation.

Third, the congregation must carefully examine its own motives in declaring itself a place of sanctuary For Christians, the act of sanctuary grows out of love and compassion for other human beings in need. It is properly focused on their situation and their care. The Central Americans themselves must not simply become the vehicle for providing a means to engage in either political or religious acts of self-justification.

Finally, sanctuary is also an act of political protest. Christians involved in providing sanctuary to Central Americans are also concerned that the implementation of U.S. law by the INS be changed to comply with the provisions of the 1980 Refugee Act. This protest is intended to promote justice through equitable application of law. While some people may see this as an opportunity to use the political situation of these Central Americans to oppose U.S. foreign policy in Central America in general, this is not appropriate. Such protest could be made without using these people as pawns in a political power play. Proper political protest in the case of sanctuary must focus on the plight of the displaced Central Americans within the U.S.