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Katherine Franke (pro hac vice pending)

Sulzbacher Professor of Law

Columbia University

435 W. 116th Street

New York, NY 10027

212.854.0061

kfranke@law.columbia.edu

James J. Belanger (Arizona Bar No. 011393)

JBELANGER LAW PLLC

PO Box 447

Tempe, Arizona 85280

(602) 253.6682

jjb@jbelanglerlaw.com

Attorneys for Amicus Curiae Professors 

Katherine Franke, Caroline Mala Corbin, 

Micah Schwartzman, Elizabeth Sepper, 

and Nelson Tebbe 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No.CR-18-00223-001-TUC-RCC

BRIEF OF AND BY PROFESSORS OF 

RELIGIOUS LIBERTY AS AMICUS 

CURIAE IN SUPPORT OF 

DEFENDANT’S MOTION TO 

DISMISS

Amici Law Professors, all considered to be experts in constitutional law and 

specifically the law of religious liberty, seek to provide the court with the proper framework 
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within which to consider Dr. Warren’s motion to dismiss grounded in the Religious 

Freedom Restoration Act, 42 U.S.C. § 2000bb–1 (hereinafter “RFRA”). 

This case represents one of the first instances in which a court has had to adjudicate 

the application of RFRA as a defense to a criminal prosecution under federal immigration 

law, specifically 8 U.S.C. § 1324(a)(1)(A)(iii) which prohibits harboring and is a criminal 

law of general application. Given that the issues involved—the enforcement of federal 

immigration law and the fundamental right to religious liberty—are significant, and that 

the case presents a question of first impression, it is imperative that the court structure its 

ruling on the RFRA motion to dismiss in a way that will provide clear guidance to the 

parties here and to other parties and courts in the future. Particularly because a wide range 

of religious institutions currently operate homeless shelters, soup kitchens, or other 

charitable services that provide basic needs such as food, water, shelter, or clean clothes to 

persons who may be undocumented, it is particularly important that this court provide clear 

guidance on this matter.

Congress enacted RFRA in 1993 in response to the Supreme Court’s holding in 

Employment Division v. Smith, 494 U.S. 872 (1990), that the Free Exercise Clause of the 

First Amendment “does not relieve an individual of the obligation to comply with a valid 

and neutral law of general applicability.” Id. at 879 (internal quotation marks omitted). 

With RFRA, Congress sought “to restore the compelling interest test as set forth in Sherbert 

v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972),” that had 

been altered by the Court in Smith. 42 U.S.C. § 2000bb(b)(1). By reinstating as a statutory 

matter the pre-Smith free exercise standard, Congress recognized the fact that laws of 
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general applicability may, in some cases, impose a substantial burden on the religious 

exercise of some persons, and when they do, the government must justify such burden on 

religious exercise as furthering a compelling interest through narrowly tailored means. 

RFRA aims to provide substantial protection to the free exercise of religion while 

recognizing that these rights are not absolute, insofar as they must yield where necessary 

for the government to implement a compelling public interest, or where the rights of third 

parties, for instance other citizens, are burdened by the overly solicitous accommodation 

of an individual’s religious belief. Further, the First Amendment’s Establishment Clause 

imposes a limit on the extent to which the government may accommodate the religious 

beliefs of citizens, as the government must ensure that an “accommodation [is] measured 

so that it does not override other significant interests” and does not “differentiate among 

bona fide faiths.” Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005).

RFRA is a careful balancing test intended to provide discrete religious exemptions 

to those whose religious activities are inadvertently constrained by neutral laws of general 

applicability. To receive an exemption under RFRA, a claimant need not demonstrate that 

the challenged law or policy singles out any particular group for special harm—such a law 

would be unconstitutional under the Free Exercise and Establishment Clauses of the First 

Amendment, making a RFRA exemption unnecessary. See Church of Lukumi Babalu Aye, 

Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). Nor need a defendant show that he 

believes the challenged law cannot exist at all. RFRA is not a means of challenging the 

application of a law or policy generally, but of challenging a particular application to the 

extent that it conflicts with a particular person’s specific religious practices.
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Under RFRA, the federal government may not “substantially burden” a person’s 

religious exercise, even where the burden results from a religiously neutral, generally 

applicable law that might be constitutionally valid under Smith, unless the imposition of 

such a burden is the least restrictive means to serve a compelling governmental interest. 

The person claiming a RFRA defense, in this case Dr. Warren, must show i) that he holds 

a belief that is religious in nature; ii) that that belief is sincerely held; iii) that his exercise 

of religious belief was substantially burdened by a federal law or policy. Once the person 

claiming a RFRA defense has made out this showing, the burden shifts to the government 

to show that i) it has a compelling governmental interest; and ii) that interest is being 

accomplished through the least restrictive means. 42 U. S. C. §§2000bb–1(a), (b). 

In this case the government has addressed only three issues in connection with the 

RFRA motion: it argues that the defendant’s religious beliefs were not substantially 

burdened, that the government has shown a compelling state interest to enforce the law in 

this case, and that the law is narrowly tailored to accomplish that compelling interest. 

The RFRA Prima Facie Case 

With respect to the showing required by the party claiming a RFRA exemption, the 

claimant must first show by a preponderance of the evidence that he holds a belief that is 

religious in nature. This showing requires courts to consider the mixed question of whether, 

objectively, the claimant’s beliefs are “religious” and whether, subjectively, the claimant 

himself understood the beliefs to be religious. RFRA covers “any exercise of religion, 

whether or not compelled by, or central to, a system of religious belief.” Burwell v. Hobby 

Lobby, 573 U.S. ___, 134 S.Ct. 2751, 2762 (2014). RFRA provides protection to a wide 
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diversity of religious practices, including those that differ significantly from the Abrahamic 

traditions. Thus, a RFRA claimant need not show that they believe in a singular deity, that 

their faith includes a house of worship, or that they are a member of a recognizable 

congregation.1“This [] inquiry reflects our society’s abiding acceptance and tolerance of 

the unorthodox belief. Indeed, the blessings of our democracy are ensconced in the first 

amendment’s unflinching pledge to allow our citizenry to explore diverse religious beliefs 

in accordance with the dictates of their conscience.” Patrick v. LeFevre, 745 F.2d 153, 157 

(2d Cir. 1984). “[W]e are a cosmopolitan nation made up of people of almost every 

conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). “Our 

nation recognizes and protects the expression of a great range of religious beliefs.” Navajo 

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1064 (9th Cir. 2008).

In considering whether a system of values or beliefs counts as religious for the 

purposes of RFRA and similar federal statutes, courts have looked to several key indicia 

of “religiosity” that implicate “‘deep and imponderable matters’ ... includ[ing] existential 

matters, such as humankind’s sense of being; teleological matters, such as humankind’s 

purpose in life; and cosmological matters, such as humankind’s place in the universe.” 

Cavanaugh v. Bartelt, 178 F. Supp. 3d 819, 829 (D. Neb. 2016), aff'd (8th Cir. Sept. 7, 

2016). 

 

1

In this respect the Government’s questioning of the defendant’s father during the 

evidentiary hearing on whether the defendant attended “church” was irrelevant. Doc. 45, 

Transcript of Proceedings, May 11, 2018 at 27-28. Similarly, the government’s 

questioning of the defendant about whether he belonged to the Jewish, Mormon, Catholic, 

Muslim or Bahai faiths was irrelevant. Id. at 53.
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While the objective question of differentiating religious from other kinds of belief 

systems may be challenging in some cases, this is not a hard question in this case. Dr. 

Warren’s testimony and that of his father demonstrate that the beliefs that compelled Dr. 

Warren to provide aid to persons in and around Ajo, Arizona clearly implicated “‘deep and 

imponderable matters,’ includ[ing] existential matters, such as humankind’s sense of 

being; teleological matters, such as humankind’s purpose in life; and cosmological matters, 

such as humankind’s place in the universe.” Id.

There remains a subjective factual component to the question of whether a particular 

RFRA claimant’s belief system should be treated as religious: were they considered by the 

claimant to be religious in nature? The central factual question is “whether they are, in his 

own scheme of things, religious.” Id. at 157 (quoting United States v. Seeger, 380 U.S. 163, 

185 (1965) (emphasis added)), with the aim of “differentiating between those beliefs that 

are held as a matter of conscience and those that are animated by motives of deception and 

fraud.” Isbell v. Ryan, 2011 WL 6050337 (D. Ariz., December 6, 2011), citing Patrick v. 

LeFevre, 745 F.2d 153, 157.

In this case the factual question of whether the defendant’s beliefs were religious in 

nature is not disputed by the government, nor is it a difficult question to resolve in Dr. 

Warren’s favor given the testimony presented at the evidentiary hearing. Therefore, this 

element can be resolved in the defendant’s favor at this juncture.2

 

2 At the evidentiary hearing Dr. Warren’s father testified that his son’s belief system 

was not simply ethical, secular belief, and that that “Church of the Natural World” involves 

a “life force, a soul.” Doc. 45, Transcript of Proceedings, May 11, 2018 at 20-21, 33. Dr. 

Warren testified to his belief that the desert had a soul and a life force, and that providing 
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Second, the RFRA claimant must show that his religious beliefs are sincerely held. 

Hobby Lobby, 134 S.Ct. at 2774 n. 28 (“To qualify for RFRA's protection, an asserted 

belief must be ‘sincere’....”). This element is a question of fact, proven by the credibility 

of the party asserting a religion-based defense. United States v. Zimmerman, 514 F.3d 851, 

854 (9th Cir. 2007) (stating that sincerity is “a question of fact”); Patrick v. LeFevre, 745 

F.2d 153, 157 (2nd Cir. 1984) (the sincerity analysis “demands a full exposition of facts 

and the opportunity for the factfinder to observe the claimant’s demeanor during direct and 

cross- examination”); United States v. Quaintance, 608 F.3d 717, 721 (10th Cir. 2010) 

(“[S]incerity of religious beliefs ‘is a factual matter.’”). See generally Kara Loewentheil 

and Elizabeth Reiner Platt, In Defense of the Sincerity Test, in Religious Exemptions 247 

(Kevin Vallier & Michael Weber eds., 2018). 

Rather than merely reducing this element to a matter of pleading and accepting the 

RFRA claimant’s mere assertion of sincerity, the court must undertake a meaningful 

assessment of the factual basis for the claim to sincerity, including examination of the 

claimant’s demeanor. At the evidentiary hearing Dr. Warren and his father presented ample 

credible testimony demonstrating that his religious beliefs were sincere in nature, and the 

government has not contested the truth of this assertion. Therefore this element can be 

resolved by the court in the defendant’s favor on a motion to dismiss.

Next, the party seeking a RFRA-based exemption must show that the exercise of a 

 

humanitarian aid is a “sacred act” Id. at 36-38, 55. Finally, Dr. Warren testified that he 

considered his belief system religious. Id. at 37. Nothing in the record contradicts or draws 

into question the conclusion that Dr. Warren’s belief system is religious in nature.
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sincerely held religious belief was substantially burdened by government action. This 

element contains two components: that the government substantially burdened the exercise

of religious belief. Both aspects of this element are questions of law for the court to decide. 

See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (stating that judicial inquiry 

into the substantiality of the burden “prevent[s] RFRA claims from being reduced into 

questions of fact, proven by the credibility of the claimant”); Kaemmerling v. Lappin, 553 

F.3d 669, 679 (D.C. Cir. 2008) (“[a]ccepting as true the factual allegations that 

Kaemmerling’s beliefs are sincere and of a religious nature—but not the legal conclusion, 

cast as a factual allegation, that his religious exercise is substantially burdened”); Eternal 

Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 

1122, 1144–45 (11th Cir. 2016); Priests For Life v. U.S. Dept. of Health and Human 

Services, 772 F.3d 229, 247 (D.C. Cir. 2014), vacated on other grounds and remanded sub 

nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016) (noting that eight circuits have held that 

“the question of substantial burden also presents “a question of law for courts to decide.”). 

As Professor Frederick Mark Gedicks has argued persuasively, “[t]he rule of law demands 

that the determination whether religious costs are substantial should be made by impartial 

courts.” Frederick Mark Gedicks, “Substantial” Burdens: How Courts May (and Why 

They Must) Judge Burdens on Religion Under RFRA, 85 Geo. Wash. L. Rev. 94, 150–51 

(2017).

A substantial burden exists when government action puts “substantial pressure on 

an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd., 450 

U.S. 707, 718 (1981). The Ninth Circuit has recognized two ways to understand the notion 
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of substantial burden in the RFRA context: (1) forcing a person to choose between the 

tenets of their religion and a government benefit, and (2) being coerced to act contrary to 

religious belief by threat of civil or criminal sanctions. Navajo Nation v. U.S. Forest Serv., 

535 F.3d 1058, 1069–70 (9th Cir. 2008). The second formulation applies most 

appropriately in this case, where the threat of imprisonment and significant financial 

penalties will coerce the defendant to act in a way that is contrary to his religious beliefs. 

This standard was elaborated upon further by the Ninth Circuit in Snoqualmie Indian Tribe 

v. F.E.R.C., 545 F.3d 1207, 1214 (9th Cir. 2008) where the court described the problem of 

burden as “a Catch–22 situation: exercise of their religion under fear of civil or criminal 

sanction.”

The Government’s Burden in Opposing the RFRA Motion

If the claimant demonstrates a substantial burden on his ability to exercise his 

sincerely-held religious beliefs, he is entitled to a RFRA exemption unless the government 

can show that the burden is the least restrictive means of advancing a compelling 

government interest. A compelling interest must be clearly articulated and specific; 

“broadly formulated interests justifying the general applicability of government mandates” 

are not considered compelling. Gonzales v. O Centro Espirita Beneficente Uniao do 

Vegetal, 546 U.S. 418, 430-31 (2006). Courts should take into account not only the interests 

of the government itself, but of third parties who stand to be impacted by an 

exemption. Cutter v. Wilkinson, 544 U.S. 709, 720, (2005) (“courts must take adequate 

account of the burdens a requested accommodation may impose on nonbeneficiaries”). 

To demonstrate that the application of the challenged law or policy is narrowly 
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tailored, the government must show that it could not achieve its compelling interest to the 

same degree while exempting the [party asserting the RFRA claim] from complying in full 

with the [law]” U.S. v. Christie, 825 F.3d 1048, 1061 (9th Cir. 2016). See also O Centro, 

546 U.S. at 431. This “focused inquiry” requires the government to justify why providing 

an exemption would be unworkable. Id. at 431-32.

Both the compelling interest and least restrictive means analyses are questions of 

law that can properly be addressed on a motion to dismiss. See United States v. Friday, 525 

F.3d 938, 949 (10th Cir. 2008) (“We now conclude, as other circuits have, that both prongs 

of RFRA's strict scrutiny test are legal questions.”); United States v. Christie, 825 F.3d 

1048, 1056 (9th Cir. 2016) (“We review the district court's compelling-interest and leastrestrictive-means conclusions de novo”). In our view, the government has not carried its 

burden on either of these elements.

Objections to the Magisrate’s Treatment of Dr. Warren’s RFRA Motion:

Our concerns lie largely with the Magistrate’s misapplication of RFRA’s 

“substantial burden” test. First, the Magistrate Judge noted “No testimony was presented 

that the statutes at issue compelled the Defendant to do anything in violation of his religious 

beliefs. The laws at issue are of a general nature that apply to all and do not single him or 

any identifiable group into acting in conflict with their religious beliefs. The Defendant is 

at best told not to violate the laws that apply equally to all.” Magistrate’s Report and 

Recommendation (hereinafter R&R) (Doc. 81) at 3. 

This characterization of the substantial burden test misstates its meaning in the 

RFRA context. In noting that the laws “apply to all,” the Magistrate Judge overlooked that 
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this is precisely the context in which RFRA was meant to apply: to laws of general 

application that impose a substantial burden on the sincerely held religious beliefs of some 

people. The Magistrate Judge’s reading of the legal standard of burden may reflect the 

constitutional standard of protection for religious liberty recognized by the Supreme Court 

in Employment Division v. Smith (the Free Exercise Clause of the First Amendment “does 

not relieve an individual of the obligation to comply with a valid and neutral law of general 

applicability,” 494 U.S. 872, 879 (internal quotation marks omitted)). However, RFRA was 

enacted specifically to provide greater statutory protection for religious liberty than is now 

recognized under the First Amendment. See generally Ruiz-Diaz v. U.S., 703 F.3d 483 

(9th Circ. 2012) (“RFRA requires the federal government to show that it is advancing a 

compelling interest through the least restrictive means possible where the government 

‘substantially burden [s] a person’s exercise of religion,’ even where, as here, the burden 

results from a rule of general applicability. 42 U.S.C. § 2000bb–1.”) (emphasis supplied). 

Any suggestion that Dr. Warren’s RFRA claim is weakened because the law he is charged 

with violating does not target religion and applies equally to all fundamentally 

misconstrues RFRA, which expressly applies to and was intended to restrict burdens on 

religion “even if the burden results from a rule of general applicability . . . .” 42 U.S.C. § 

2000bb–1(a).

Second, the Magistrate Judge reasoned that “[a]t no time during the Defendant’s 

testimony did he claim that his religious beliefs necessitated he aid undocumented 

migrants, only that he was compelled to aid persons in distress ... Nor has he asserted or 

testified that his beliefs require he assist people illegally in this country to evade 
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apprehension or reach their ultimate destination.” R&R at 4. Based on this reasoning, the 

Magistrate Judge concludes that the defendant’s religious beliefs have not been 

substantially burdened. This too misstates RFRA doctrine. 

The question is not whether defendant’s religious beliefs commit him to violate the 

law, but whether his beliefs commit him to undertake acts that are otherwise treated as 

illegal by a federal law or by federal agents. For instance, in Hobby Lobby the issue was 

not whether the company’s owners’ religious beliefs required them to violate the 

Affordable Care Act, but rather whether their beliefs committed them to offering health 

insurance to employees but prohibited them from including contraception in that coverage. 

134 S. Ct. 2751, 2775-77. Similarly, in O Centro, the issue was not whether the beliefs of 

a religious group with origins in the Amazon rainforest included the violation of the 

Controlled Substances Act, but rather whether the exercise of their sincere religious beliefs 

included ingestion of substances otherwise regulated by federal law. 546 U.S. at 425-26, 

436. 

The mistake that lies at the heart of the Magistrate Judge’s reasoning on this issue 

is insisting that the acts entailed in the exercise of religion be defined in secular legal terms. 

It is to confuse the actus reus for the alleged crime itself. It is as if the government were 

reading a specific scienter requirement into RFRA, that is, that the person seeking an 

exemption be required to show that they intended to violate the law as an article of their 

faith, rather than that they intended to engage in faith-based acts that so happened to risk 

prosecution under the law. RFRA requires that the person requesting an exemption show 

that their actions were motivated by a religious purpose, not that they were motivated by a 
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desire to violate the law. To require the latter would undermine the very purpose of RFRA:

to provide individualized exemptions from the application of generally applicable laws to 

persons whose good faith religious exercise presents a conflict with the requirements of the 

law.

Relatedly, the government’s reliance on Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 

2002), and United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), is misplaced. In both of 

these cases the Ninth Circuit found as a matter of fact that only certain acts otherwise 

prohibited by federal drug laws were included in the defendants’ Rastafarian belief system 

(i.e. smoking marijuana), while other acts for which the defendants were also prosecuted 

(i.e. selling or importing marijuana) were not shown to be part of the defendants’ system 

of beliefs at all. The Ninth Circuit’s analyses did not turn on whether the defendants were 

motivated by an intent to violate the relevant statutory provisions. Instead, the focus of the 

inquiry in those cases was properly on whether the underlying acts—smoking, selling, or 

importing of marijuana—were elements of the defendants’ religious exercise [on the 

defendants’ own terms].

Dr. Warren’s religiously motivated activities form the foundation of the 

government’s prosecution under the harboring law. The basis for the charge against 

Warren as described in the criminal complaint include providing food, water, shelter, and 

clean clothes to, as well as talking to, two undocumented migrants. (Doc. 1). These 

activities were clearly motivated by Dr. Warren’s religious faith, which requires him to 

care for people that he believes are in distress. During the evidentiary hearing, Dr. Warren 

explained “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have 
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to act when someone is in need.” Doc. 45, Transcript of Proceedings, May 11, 2018 at 44. 

The Magistrate acknowledged this duty, describing his beliefs as “a somewhat modified 

Golden Rule, in that he has a compulsion to help those in their immediate need, i.e. food, 

water, and medical aid.” R&R at 2.

Despite this, the Magistrate Judge found no substantial burden because Dr. Warren 

had not “asserted or testified that his beliefs require he assist people illegally in this country 

to evade apprehension or reach their ultimate destination.” R&R at 3. The fact that Dr. 

Warren did not articulate a religious belief in concealing undocumented people, however, 

is irrelevant; nothing in the criminal charge includes any mention of Dr. Warren attempting 

to conceal the migrants from law enforcement. The bases for Dr. Warren’s charge are 

entirely RFRA-protected activities, and his prosecution therefore puts him in the position 

of violating his religious beliefs or risking criminal prosecution—undoubtedly a substantial 

burden. 

Properly understood, a key element of Dr. Warren’s sincerely held religious beliefs 

included a commitment to help others in distress to the point of being a duty or compulsion 

to provide them aid even though there was a risk of violating federal law. This is precisely 

the kind of “Catch-22 situation” that RFRA’s notion of substantial burden was intended to 

capture.

Conclusion.

For the foregoing reasons we believe that Dr. Warren’s RFRA motion for dismissal 

should be granted because all of the elements of the claim case be resolved in his favor 

either as a matter of law or as a matter of fact based on the facts adduced at the evidentiary 
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hearing.

RESPECTFULLY SUBMITTED June 21, 2018.

Katherine Franke (pro hac vice pending)

and

JBELANGER LAW PLLC

By /s/ James J. Belanger

James J. Belanger

Attorneys for Amicus Curiae Professors 

Katherine Franke, Caroline Mala Corbin, 

Micah Schwartzman, Elizabeth Sepper, 

and Nelson Tebbe 

CERTIFICATE OF SERVICE

I certify that on June 21st, 2018, I, James J. Belanger, electronically transmitted a PDF 

version of this document to the Clerk of Court using the CM/ECF System for filing and 

for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

 Gregory J. Kuykendall (email: mailto:greg@kuykendall-law.com)

Amy P. Knight (email: mailto:amyknight@kuykendall-law.com)

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott Daniel Warren

/s/ James J. Belanger