You may recall the case of Scott Warren of the humanitarian group No More Deaths who was charged by the federal government because he provided food, water, clothing, and shelter to the undocumented people who crossed the southern border and then undertook a grueling and dangerous trek through the desert. A jury acquitted him of all those charges but in a different case a judge found him guilty on a misdemeanor charge of illegally operating a motor vehicle in a wilderness area in the course of delivering the supplies.
But there was another case of four people from the same group who also left supplies in the desert and were found guilty by a federal magistrate judge of operating a motor vehicle in a wilderness area and entering a national refuge without a permit and abandonment of property.
The four did not contest the facts but appealed to a US District Judge Rosemary Márquez that the verdict violated the Religious Freedom Restoration Act (RFRA) that requires that when people are acting out of their “sincere religious beliefs” then the government is required to implement the law in the “least restrictive” manner possible. RFRA has been extensively used by right wing groups, aided by the government, to enable religious people to opt out of all manner of federal mandates such as providing contraceptives as part of health care plans and so on.
Judge Márquez agreed with the defendants and overruled the convictions. She also expressed dismay at the “gruesome” logic used by the government.
“The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization,” the judge wrote. “In other words, the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death.”
“This gruesome logic is profoundly disturbing,” Márquez wrote. “It is also speculative and unsupported by evidence.” In 2017, 32 sets of human remains were recovered on the Cabeza Prieta Wildlife Refuge, the judge noted. “The government produced no evidence that these fatalities had any effect in deterring unlawful entry,” she wrote. “Nor has the government produced evidence that increasing the death toll would have such an effect.
This is the rare occasion when RFRA has been used to benefit people doing the right thing.
Katherine Franke, a law professor at Columbia, where she is faculty director of the Law, Rights, and Religion Project, called the reversal “fantastic.” Last year, Franke and her colleagues published a report illustrating how the federal government has routinely sided with right-wing or conservative causes in religious freedom cases. The law professor has followed the No More Deaths cases closely, filing motions in support of RFRA defenses. “The lower court’s opinion was so horrible just as a matter of legal reasoning, that it was really nice to see the judge apply a thorough and careful analysis of the religious liberty claim,” Franke told The Intercept. While she anticipates a government appeal, Franke said Monday’s reversal provides a solid foundation for applying RFRA in similar legal contexts.
“The government isn’t going to roll over just because they lose a case or two,” she explained. “But what we’ve got now is a developing record of careful analysis from federal courts on how RFRA ought to apply in contexts like this.”
You can read the judge’s opinion here.