Church Sanctuary for Illegal Aliens

The historical tradition o f providing church sanctuary for criminal offenses was abolished by 

statute in England in 1623 and thus did not enter the United States as part of the common law.

Providing church sanctuary to illegal aliens probably violates 8 U.S.C. § 1324(a)(3), which 

forbids the harboring of illegal aliens.

Courts are unlikely to recognize church sanctuary as legally justified under the Free Exercise 

Clause of the First Amendment, because disagreement with the government’s treatment of 

aliens is not a religious belief that is burdened by enforcement of the immigration laws, and 

the government has a compelling countervailing interest in uniform law enforcement.

October 31, 1983

M e m o r a n d u m O p i n i o n f o r t h e D e p u t y A t t o r n e y G e n e r a l

We have discussed briefly at various times the legal issues raised by churches 

offering sanctuary to illegal aliens, recently those from El Salvador.1 We have 

undertaken to provide you with a preliminary and very general analysis of 

those issues. In doing so, we have examined whether there is any law which 

makes it illegal to provide sanctuary and have concluded that the practice 

probably violates 8 U.S.C. § 1324(a)(3). We have also examined whether a 

charge of violating 8 U.S.C. § 1324(a)(3) could be defeated by the defense that 

sanctuary should be recognized at common law or should be protected by the 

First Amendment. We do not believe that a court would recognize either of 

these defenses.

I. Historical Background

The practice of providing asylum in a church or other sacred place has roots 

in ancient history,2 although Christian churches were not recognized by Roman 

law as places of sanctuary until the 4th century.3 Ecclesiastical sanctuary 

spread with the growth of the church but the exact nature of the privilege varied 

from country to country.4 The English common law permitted an accused felon

1 See W ash. Post, Oct. 1 1, 1983, at B l, col. 2; N.Y. Tim es, Sept. 21, 1983, at A18, col. 1; Time, Apr. 25, 

1983, at 118; N.Y. Tim es, Apr. 8, 1983, at A l, col. 1.

2 See generally 24 Encyclopedia Americana 218 (1983); 19 Encyclopaedia Britannica 992-93 (1971); 13 

Encyclopaedia o f the Social Sciences 534 (1935). See also Deuteronomy 4:41,4:42.

3 Encyclopaedia Britannica, supra note 2, at 993.

4 Encyclopedia o f the Social Sciences, supra note 2, at 535-36.

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to seek sanctuary in a church where he could choose either to submit to trial or 

to confess and leave the country.5

The general demise of government recognition of church sanctuary took 

many years and is usually seen as the result of the growth of strong central 

governments and the development of effective national systems of justice.6 In 

England, efforts to curtail abuses of church sanctuary or to eradicate sanctuary 

altogether achieved their first major success during the Reformation when 

many of the recognized sanctuaries were abolished and replaced by a limited 

number of cities of refuge.7 Sanctuary for criminals in England was finally 

abolished in 1623.8

We have found no evidence that the colonists revived church sanctuary in 

America.9 A search of both federal and state case law has revealed no case 

recognizing church sanctuary as a legitimate barrier to law enforcement. It is 

true that American churches have been used at times as symbolic sanctuaries. 

During the Vietnam War, for example, some churches offered “sanctuary” to 

young men who did not want to serve in the Armed Forces. See Bridges v. 

Davis, 443 F.2d 970 (9th Cir. 1971), cert, denied, 405 U.S. 919 (1972); United

States v. Beyer, 426 F.2d 773 (2d Cir. 1970). In both of the cited cases federal 

officers eventually entered the churches and arrested individuals.10 Thus, as 

with the protection presently being offered by churches to illegal aliens, the 

continued existence of the “sanctuary” depended entirely upon the authorities’ 

desire to avoid a confrontation.

II. Legality of Sanctuary

The housing of illegal aliens by churches would appear to be a violation of 8 

U.S.C. § 1324(a)(3), which forbids the harboring of illegal aliens.11 Although 

the churches alert the INS that they are offering the aliens shelter, the most 

recent case law rejects the notion that harboring must involve actually hiding 

the alien or otherwise “clandestine” activity. United States v. Acosta De Evans,

531 F.2d 428,430 (9th Cir. 1981). Instead, harboring has been held to include

5 W. Blackstone, 4 Commentaries on the Laws o f England 332-33 (1765).

6 T. Plucknett, A Concise History o f the Common Law 382 (2d ed. 1936); Encyclopaedia o f the Social

Sciences, supra note 2, at 536-37 (1935).

7 Encyclopaedia Britannica, supra note 2, at 993.

8 An Act for Continuing and Reviving o f Divers Statutes, and Repeal of Divers Others, 1623, 21 Jac. 298, 

303, ch. 28, § 7. See also Blackstone, supra note 5, at 333. Sanctuaries from civil process lingered on in some 

districts until 1723. Encyclopaedia Britannica, supra note 2, at 993.

9 For example, church sanctuary is not referenced in such basic sources as The Records o f the Federal

Convention (M. Farrand ed. 1966), The Debates in the Several State Conventions on the Adoption o f the

Federal Constitution (J. Elliot ed. 1836), The Federalist Papers (C. Rossiter ed. 1961), or The Complete AntiFederalist (H. Storing ed. 1981).

10 That the men had been taken from a church was recited in the facts of both cases but played no part in 

either court’s legal analysis. v

11 Section 1324(a)(3) provides:

Any person . . . who . . . willfully or knowingly conceals, harbors, or shields from detection, or 

attempts to conceal, harbor, or shield from detection, in any place, including any building or any 

means o f transportation . . . any alien . . . not duly admitted by an immigration o fficer. . . shall be 

guilty of a felony ....

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knowingly taking steps that “afford shelter to” an illegal alien, even if done 

without the purpose of concealing the alien from the immigration authorities. 

Id. “[T]he term was intended to encompass conduct tending substantially to 

facilitate an alien’s ‘remaining in the United States illegally,’ provided, of 

course, the person charged has knowledge of the alien’s unlawful status.” 

United States v. Lopez, 521 F.2d 437, 41 (2d Cir.) (citation omitted), cert,

denied, 423 U.S. 995 (1975). See also United States v. Cantu, 557 F.2d 1173, 

1180 (5th Cir. 1977), cert, denied, 434 U.S. 1063 (1978). The debate on the 

conduct covered by harboring is not entirely settled, however, as there are older 

cases that take a contrary position. See Susnjar v. United States, 27 F.2d 223 

(6th Cir. 1928). In addition, all of these cases involved defendants who simply 

kept silent about the aliens’ presence, rather than individuals who have reported the aliens’ presence to the INS but who have continued to shelter them.

We believe that it is unlikely that the historical tradition of offering sanctuary would provide a defense to an indictment under 8 U.S.C. § 1324(a)(3). As 

noted above, church sanctuary for criminal offenses was abolished by statute in 

England in 1623 and thus did not enter the United States as part of the common 

law. It has never, as far as we can discover, been recognized here by any state 

or federal legislation.12 The only way to use church sanctuary as a successful 

defense on historical grounds would be to persuade the courts to resurrect the 

common law right. This is unlikely. Not only have centuries passed since 

sanctuary was abolished by statute, but there are major policy implications in a 

decision to revive sanctuary. Sanctuary grew out of the need of primitive 

societies for a place of respite. Where blood feud and tribal concerns dominate 

a society or the courts are weak or the executive is too ready to dispense harsh 

and bloody punishment, there may be a need for sanctuary. None of these 

conditions exists in this country today. We doubt the courts would be willing, 

even in the face of sympathetic facts, to hold that they were no longer able to 

enforce the country’s laws in the church sanctuaries.13

Nor do we believe that a court would recognize sanctuary as legally justified 

under the Free Exercise Clause of the First Amendment.14 Although there are 

cases recognizing that some government regulations must yield if contrary to 

the sincere religious convictions of a citizen,15 we do not believe that the

12 A lthough a com plete search of all state laws enacted since 1789 is impractical, w e have reviewed human 

rights treatises, general and specialized encyclopedias, and historical reference works without uncovering 

any reference to an Am erican law dealing with church sanctuary. C hurches have often opposed particular 

governm ent policies by preaching civil disobedience, but not, as far as we can determine, by claiming a 

genera] exem ption from the legal process. There was no claim, for exam ple, that either the Underground 

Railroad or the sit-ins o f the modern C ivil Rights movement were legal — only that the particular laws 

involved w ere immoral and should, therefore, be changed.

13 The issue for countries with modem governm ents, such as the United States, has instead become whether 

to grant asylum to aliens (in derogation o f a sister state’s laws), leaving behind the more primitive question 

o f whether to perm it derogation of one's own criminal laws by permitting churches to act as sanctuaries — 

and thus, as alternate sources of temporal power.

14 N.Y. Tim es, Apr. 8, 1983, at A16, col. 5 (reporting the view o f Thomas Cannon of the Marquette 

U niversity School o f Law that offering sanctuary could be legally justified under the First Amendment and 

as an observance o f an ancient custom w ith roots in the Judeo-Christian tradition).

15 See, e.g., Wisconsin v. Yoder, 406 U .S. 205 (1972); Sherbert v. Vemer, 374 U.S. 398 (1963).

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analysis in those cases will protect people harboring illegal aliens. First, 

disagreement with the government’s treatment of illegal aliens is not a religious belief that is burdened by enforcement of the immigration laws. Sherbert 

v. Vemer, 374 U.S. 398, 403-06 (1963). Church members are not compelled 

by our deportation of aliens to forego a religious practice, such as resting on the 

Sabbath. Even if granting sanctuary were viewed as a legitimate religious 

practice authorized by modem canon law, which all the evidence suggests it is 

not, the federal government has a compelling countervailing interest in insuring that the law is enforced throughout our country.16 The integrity of our 

government would be seriously threatened if individuals could escape the 

criminal law by pleading religious necessity.

III. Suggestions for Statement

It has been suggested that the Department might wish to issue a formal 

statement on the growing use of churches as places of sanctuary for illegal 

aliens. If it is decided to do so, we recommend that the statement indicate that 

there is a statutory right to file for asylum in this country. 8 U.S.C. § 1158. INS 

does not deport aliens during the pendency of an application. The statement 

might reiterate our determination to adjudicate all asylum claims fairly, and 

urge that those with bona fide claims file them promptly.

The plight of illegal aliens in this country obviously generates strong emotions, especially when aliens are seeking escape from a strife-filled nation and 

argue that the government from which they are seeking sanctuary is the source 

of at least some of the violence. In any prosecution the courts are likely to be 

presented with defendants whose cases are sympathetic and whose advocates 

will be drawn from persons who assert a moral basis for their views. As in the 

case of enforcing any law affecting large numbers of people who may have 

acted pursuant to strong and principled convictions, sensitivity in the process, 

with adequate notice to all involved and manifest concern for matters of 

conscience, will be an important ingredient in convincing the courts to uphold 

enforcement.

T h e o d o r e B. O l s o n

Assistant Attorney General

Office o f Legal Counsel

16 Unlike the beliefs protected in Yoder, which were recognized by the Supreme Court as having been 

practiced consistently for centuries, church sanctuary has been a nullity for over three hundred years The 

comments of various church leaders, see supra note 1, indicate that while the bishops may sympathize with 

their pastors' intentions, they also recognize that harboring the aliens is illegal and not immunized by an 

invocation of church sanctuary.

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