The Refugee Issue Is a Religious Liberty Issue

Late last week, nonprofit and charitable organizations around Texas received a troubling letter from the executive commissioner of the Texas Health and Human Services Commission. Dated November 19, the letter instructs all refugee-related agencies in the state of Texas to report any plans of resettling Syrian refugees to the commission, and asks that if they are in the process of resettling Syrian refugees, to “please discontinue those plans immediately.” The commission’s letter followed a separate letter sent November 16 by Texas Governor Greg Abbott to President Barack Obama, wherein the governor informed the president that Texas would not be accepting any Syrian refugees.

If Abbott’s discomfort with Syrian refugees had remained at the level of gubernatorial grandstanding—keeping in mind the fact that governors lack the authority to deny specific religious or ethnic groups entry into their states—then it would likely not have been more newsworthy than similar reservations expressed by a host of other American governors. But with the letter to nonprofits and other private agencies with refugee resettlement programs, Texas moved into direct opposition to federal law and, some say, threatened the religious liberty of numerous Texan faith groups.

“The letter the HHSC sent, they crossed a line into actual substantive policy steps,” Bee Moorhead, executive director of Texas Impact/Texas Interfaith Center for Public Policy, said in a phone call with the New Republic. Texas Impact is the oldest and largest interfaith social action network in Texas, and functions as a membership organization for faith groups doing state-level advocacy and interpreting public policy. 

The requests made in the letter put nonprofit agencies in the position of either disobeying state-level requests or breaking federal law, Moorhead said. A return missive from Texas Impact clarified that “8 U.S. Code § 1522 Sec. 5 requires that ‘assistance and services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, or political opinion. ... Plainly, HHSC is demanding that local resettlement agencies violate federal law by engaging in illegal discrimination.” If the commission’s letter does result in a court battle, Moorhead said, this will probably be the axis on which the arguments unfold. But it’s not the only issue at hand.

In Texas, most refugee services are carried out by private organizations that receive funding in the form of contracts from the state. This has been one of the ways, Moorhead said, that Texas has managed to put relatively little of its own tax revenue into social services. But many of these private organizations are faith-based, and their commitment to aiding refugees flows from their overall religious orientation. For that reason, the commission’s directive to suspend all aid to Syrian refugees struck several such faith-based charities as an infringement upon their free exercise of religion.

In a notice posted on its website and Facebook page, the Catholic Charities of Dallas stated, “We are called by the Gospel to reach out to all those in need,” adding that, “Catholic Charities of Dallas will continue to serve all refugees.” The citation of the Gospel places the brewing conflict between the state of Texas and its faith groups in line with several other high-profile religious freedom cases that have played out over the last several years, including court battles involving Hobby Lobby and the Little Sisters of the Poor.

As soon as faith groups received the Health and Human Services Commission’s letter last week, Moorhead said, her phone began to ring. “People were calling from the offices of denominational groups saying, ‘Hey, what’s going on? We feel like this is threatening the freedom of this entire denomination, if the refugee organizations we have can’t do their work.’” On Wednesday Moorhead will host a conference call with more than 75 faith groups to prepare a strategy to respond to the commission’s demands. Religious liberty will be at the forefront of their conversation, she said.

“Efforts to restrict the ability of such charities/non-profits could certainly be interpreted [as a limitation of religious freedom],” Mark Silk, director of the Greenberg Center for the Study of Religion in Public Life at Trinity College, wrote in an email to the New Republic. “The question is whether such policies would meet the legal test required to restrict such faith-based activities.” Silk noted that both the faith groups and the state will have to demonstrate specific burdens should the matter of religious freedom end up litigated in court. 

Faith groups, Silk said, “would have to argue that preventing them from conducting the activities would substantially burden their religion free exercise.” The state, meanwhile, would have to “prove to a judge’s satisfaction that restricting the activities was a compelling interest and that that interest was being enforced by the least restrictive means.”

In other words, as with most religious liberty arguments, these faith groups will be tasked with proving that their outreach to refugees—all refugees, not just a select few —is a core component of their religious activity. As the Catholic Charities of Dallas signaled in its statements, the case that welcoming the persecuted and acting charitably toward the vulnerable are obligations in the Christian worldview is not a difficult one to make scripturally, nor a hard tradition to demonstrate historically. (A public court battle over the place of charity within Christianity would be a perhaps fascinating exploration of how sexual morality and charity somehow achieved very different moral weight in American Christianity.)

But a fight over religious freedom could also pit old allies against one another. If Texas has, as Moorhead said, relied heavily upon the activities of nonprofits to sustain something resembling a network of social programs within the state, then openly infringing upon faith groups’ religious freedom could sour longstanding partnerships, and chill the possibility of forming new ones. 

The state’s willingness to place pressure on the religiously motivated activities of its nonprofits has also compromised the narrative in which political conservatives are religious freedom maximalists, Moorhead said, and political liberals are out to dominate religious groups with state control. “Religious freedom is now the rhetorical currency of the right,” Moorhead said, “but it’s turning out to be in implementation that what’s politically expedient for the right is not affirmative of religious freedom.”