Hutchinson, Anne
See TRIAL OF ANNE HUTCHINSON.
I
Immigration and Naturalization Law and Religion
The role that religion has played throughout the immigration history of the United States has often been contradictory. The United States has traditionally considered itself a haven for those fleeing religious persecution. However, although the U.S. Supreme Court has issued opinions and Congress has passed laws grounded in this legacy, a would-be immigrant’s religion has often acted to bar entry into the United States. Since Congress began limiting the numbers of immigrants in the mid-nineteenth century, it has provided exceptions based on religious grounds but has also limited the admission of aliens based on their religion.
Immigration
Until the mid-nineteenth century, immigrants—whether or not they were refugees
— were generally welcome because of the need for labor and population in the country. However, in the mid-nineteenth century, after a series of economic depressions, Congress began passing laws limiting certain classes of aliens.
One of the first cases decided by the U.S. Supreme Court involving immigration and religion emanated from one of these laws. The act of February 26, 1885, prohibited the “importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States.” It was intended to limit the numbers of uneducated laborers. But in Church of the Holy Trinity v. United States(1892) the Court held that this prohibition did not apply to a contract between an English alien and a religious organization that wished to hire him as its minister. The “religious organization” was an Episcopal church.
The Court conceded that the contract in question was within the “letter” of the act.
However, the Court believed that, because “this is a Christian nation,” Congress could not have intended to prevent such a transaction from taking place.
The Immigration Act of 1917 introduced a literacy test for those wishing to enter the United States: Would-be immigrants had to prove that they were literate in at least one language by reading a passage in front of an examiner at the port of entry. The test was intended to curtail immigration of Catholics from southern and eastern Europe, Jews from eastern Europe, and immigrants from the Middle
East. Ironically, the only people exempt from this requirement were those fleeing religious persecution.
Although the act of 1917 remained the basic law until the passage of the Immigration and Nationality Act of 1952, Congress added another restriction in 1921. The Immigration Act of 1921 instituted a quota system based on national origins, limiting immigration to 3 percent of the “number of foreign-born persons of such nationality resident in the United States as determined by the United States census of 1910”; Congress also put an annual cap for all immigration. Northern and western European immigrants were granted an annual quota of about 200,000; the quota for immigrants from southern and eastern Europe was set at about 155,000. Again, the system was specifically aimed at excluding Catholics, Jews, and other non-Protestants.
In response to ever-increasing levels of immigration of these “undesirables,”
Congress soon adopted a new, more restrictive quota system. The National Origins Act of 1924 lowered the nationality quota from 3 percent to 2 percent and lowered the cap to 164,667 immigrants per year. To further limit what Congress deemed were undesirable ethnic groups and religions, the benchmark year was pushed back from 1910 to 1890, when fewer U.S. citizens were descendants of southern and eastern Europeans. As intended, the reductions of quotas severely affected those from eastern and southern Europe—and did so at a time when masses of people were fleeing the pogroms and results of World War I. These quotas later served to limit the numbers of eastern Europeans admitted during the rise of Nazism in the 1930s and during World War II.
Although those escaping religious persecution remained exempt from the literacy test, they were not exempt from the quota restrictions. However,
“ministers of religion” were exempt from the quota if they had practiced their vocation for the two years immediately preceding their application for a visa. In Matter of M(BIA 1941) andMatter of B(BIA 1948), the Board of Immigration Appeals reversed two decisions of the Board of Special Inquiry at Ellis Island. In both cases the board had excluded rabbis based on the fact they had not practiced their vocations for the two years before their applications. One refugee had spent three years in a concentration camp and over one year in a displaced persons camp; the other managed to escape from Poland and had spent World War II fleeing from the German army.
Current immigration policy continues to reflect the special status that religious practitioners have traditionally occupied. The Immigration Act of 1965 redefined the category of “ministers of religion” as “special immigrants” but maintained the exemption from numerical quotas. The Immigration Act of 1990 removed this exemption and limited the category to those seeking to enter the United States before October 1, 1994. Under this act an alien could immigrate if he or she was (1) a minister of a religious denomination, (2) entering to work for a religious organization in a professional capacity, or (3) entering to work for a religious organization in a religious vocation or occupation. The immigrant still
had to have practiced his or her vocation for the two years immediately preceding the application.
However, as a result of extensive lobbying by religious groups, the Immigration Act of 1990 introduced a special nonimmigrant visa for temporary religious workers. The R-l visa is available to ministers of religion, religious professionals, and “other religious workers.” There are no numerical limitations, and, unlike “special immigrants,” the applicant need not have performed his or her religious work for the two-year period preceding the application.
Refugees
Huguenots, Quakers, Mennonites, Amish, and Jews fleeing religious persecution in the seventeenth century; Jews escaping pogroms in the late nineteenth century; and Armenians fleeing Turkish pogroms during the first decades of the twentieth century all found refuge in this country with relatively few legal obstacles. However, by the 1930s and 1940s, when masses of Jews were fleeing Nazi-occupied Europe, immigration was severely limited by a strict quota system and other requirements. No exceptions from the quotas were made for people fleeing persecution of any kind.
However, although no right to asylum existed based on religious persecution until the adoption of the Refugee Act of 1980, the special status of those fleeing such persecution was previously recognized in immigration law in that such people were exempt from the literacy test. To be admitted, would-be immigrants had to prove that they were literate in at least one language by reading a passage in front of an examiner at the port of entry. Aliens were exempt from the test only if they could prove that
they are seeking admission to the United States to avoid religious persecution in the country of their last permanent residence, whether such persecution be evidenced by overt acts or by laws or governmental regulations that discriminate against the alien or the race to which he belongs because of his religious faith….
Aliens were not automatically admissible if they were found to be escaping religious persecution; they still had to meet the other requirements for admission.
In addition, if they were merely fleeing racial or political persecu tion, they were not exempt from the literacy test. Therefore, this exception forced courts to define persecution based on religion.
Courts struggled throughout the 1920swith the definition of “religious persecution,” and they often arrived at conflicting conclusions. For example, in Johnson v. Tertzag; Ex parte Soghanalian (1st Cir. 1924), a federal court admitted an illiterate Armenian woman on the grounds of religious persecution after she described how the Turks had killed her parents and all other Christians from her town and how she had been seized and kept in a harem for three and a
half years until saved by Allied armies. However, in United States ex rel. Azizian v. Curran (2d Cir. 1923), another case involving an Armenian woman, the United States Circuit Court found that although
common knowledge enables us to recognize in this most unfortunate woman a victim of what are too well known as “Armenian massacres,”
neither evidence nor common report enables us to say that what happened in Urmia in 1917 was religious persecution, as distinguished from robbery and banditry at a time and place of social dissolution, if not political revolution.
In 1942, inMatter of M,the Board of Immigration Appeals found that members of a Jewish Romanian family who had been denied admission because they could not read satisfactorily were exempt from the test because they were fleeing
“Hitlerism,” which the board declared was a state religion that subverted all other religions. The board believed that for the “Hebrew” people, “race and religion are one,” but that the Nazi persecution was based on religious and not racial motives.
During the years immediately following World War II, Congress passed new legislation that provided for the admission of refugees created by the war. For example, the Displaced Persons Act of 1948 exempted war refugees from the quota restrictions. Howevei; beginning in 1950, the definition of “persecution”
had to be confronted with increasing frequency. In 1950 Congress amended the Immigration Act of 1917 to provide that an alien could avoid deportation if he or she would be subjected to physical persecution on the basis of race, nationality, religion, or political opinion. In the Immigration andINationality Act of 1952, Congress further amended this provision to give the attorney general the discretionary power to withhold deportation based on the same grounds.
The Immigration Act of 1965 replaced the physical requirement with the requirement that the persecution be “on account of race, religion or political opinion.” In 1966, in Matter of Salama, the Board of Immigration Appeals stopped the deportation of a Jewish man to Egypt because an official campaign of discrimination had already forced the departure of almost the entire Jewish population of Egypt. Section 203(a)(7) of the Immigration Act of 1965 also provided a procedure for paroling into the United States those who qualified as refugees under the claim of religious discrimination in their homeland. Although relief under this provision was available to people already in the United States, they still had to show that they had fled their country of citizenship “because of persecution.” For example, in Matter of Lalian (BIA 1967), an Iranian Christian woman was denied refugee classification because she had entered the United States on a visitor’s visa and because her subsequent actions indicated that she intended to return to Iran. She had received extensions of her visa and of her passport as well as two new passports from the Iranian authorities.
The Refugee Act of 1980 eliminated the discretion of the attorney general in withholding deportation, although the circumstances for doing so are quite narrow. The 1980 act also introduced asylum for anyone who qualified as a
“refugee” as defined by the Protocol to the United Nations Convention on Refugees. An applicant’s well-founded fear of persecution because of religion is one of the five grounds specified in the Protocol (the others are race, nationality, political opinion, and social group). However, the 1980 law allows the attorney general to retain discretion in whether asylum should be granted.
The definition of religious persecution has developed rapidly since the passage of the Refugee Act of 1980. To qualify, the applicant must show that he or she fears persecution and not merely personal threats, animosity, or simple discrimination. It also must be established either that the persecution is government-sanctioned or that the government is unable to stop it. For example, in Matter of Chen (BIA 1989) a man from a Catholic family in the People’s Republic of China—whose family members experienced horrendous mistreatment during the Cultural Revolution—was found to have a well-founded fear based on this past persecution. Similarly, in Doe v. Immigration and Naturalization Service (6th Cir. 1989) a federal court held that a Chinese student who converted to Christianity while in the United States had a well-founded fear of persecution.
However, in Gumbol v. Immigration and Naturalization Service (6th Cir.
1987) a Christian Iraqi was found not to possess such a fear, even though he had been beaten by a member of the Baath Party because he was Christian and refused to join that party. The court found that he had not established that the beating was government-sanctioned, rather than merely an isolated incident.
In addition, the persecution must be on account of the applicant’s religious beliefs or actions. This issue is especially contentious where army conscription is involved, because people have many reasons, including fear, for refusing to serve in their nation’s army. For example, in 1988, inMatter of Canas, the Board of Immigration Appeals held that a Jehovah’s Witness who refused to be conscripted into the Salvadorian army based on his religious beliefs did not qualify as a refugee because he had not established that the conscription laws were enacted with the intent of persecuting members of a certain religion. The Salvadorian government imprisoned everyone who refused to serve, regardless of their reasons.
On appeal, the circuit court in CanasSegovia v. Immigration and Naturalization Service (9th Cir. 1992) attempted to accord persecution on account of religion greater deference than persecution on any of the other four grounds specified in the Immigration Act of 1980. The court based its opinion on U.S. constitutional law and on the United Nations Handbook on Refugees. It held that, where the alien’s refusal to serve in the army was based on genuine religious beliefs and where such refusal, regardless of the reason, automatically subjects the alien to imprisonment, torture, or death, the alien qualifies as a refugee. The Handbook—which is generally considered a legitimate interpretive
source— states that conscientious objectors may be eligible for refugee status if their government does not provide an exception for religious beliefs.
However, the appeals court’s second basis, U.S. constitutional law, was more controversial because aliens do not enjoy the protections of the First Amendment’s religion clauses. The court began by acknowledging the special place that religion holds in U.S. law and by recognizing that religious conscientious objectors are exempt from serving in the U.S. military. It then likened the aliens’ situation to one where, under the freedom of religion clause in the First Amendment, a facially neutral statute is deemed unduly burdensome to a religious group. Applying this constitutional principle, it found that the fact that the Salvadorian conscription law was neutral on its face did not preclude it from being persecuted.
The U.S. Supreme Court did not address either ground when it heard the Canas case. Instead, it vacated the lower court’s decision and remanded the case to the court of appeals for reconsideration in light of its own opinion inImmigration and Naturalization Service v. Elias-Zacarias(1992), where it had ruled that, to show persecution on account of political opinion, the persecutor’s intent must be shown. On remand, the court of appeals held that, under the Elias-Zacarias precedent, Canas had to show the intent of his home government to persecute him because of his religious beliefs. But Canas was unable to establish that he would be imprisoned specifically because he refused to serve in the army for religious reasons, and thus the court of appeals concluded that he did not have a well- founded fear of persecution on account of his religion.
Naturalization
The major area where the Supreme Court has dealt with religion and immigration is that concerning the oath of citizenship. The Naturalization Act of 1906 required that, to become a citizen, an applicant had to “declare an oath in open court…that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.”
In United States v. Schwimmer (1929) the Court upheld the denial of a naturalization application of a 49-year-old woman who agreed to take the oath of allegiance but refused to take up arms in the defense of the United States because she was a pacifist. Two years later, in United States v. Maclntosh(1931), the Court held that a Baptist minister who agreed to take up arms only if he deemed the purpose justified could not be naturalized. The same day, inUnited States v.
Bland (1931), the Court held that the application should be denied in the case of a woman who refused to take the oath of allegiance to defend the U.S.
Constitution and laws unless she were allowed to add the words “as far as my conscience as a Christian will allow” and who refused to swear to bear arms in the defense of the United States.
In all three cases, the Court based its holdings on the principle that naturalization was a privilege. Even though Congress allowed for conscientious objector status based on religious scruples for those people who are already citizens, it was within Congress’s power to deny such a privilege to prospective citizens. The Court found no constitutional right to refuse to bear arms in defense of the United States based on religious reasons; the privilege came from an act of Congress.
In Girouard v. United States (1946) the Court overruled all three decisions based on its rereading of congressional intent as expressed in the statute requiring the oath of allegiance. Girouard involved a Seventh-Day Adventist who refused to take up arms for religious reasons but who agreed to perform noncombatant military duty. The Court concluded that the statute did not expressly require aliens to promise to bear arms as long as there were other ways to defend the United States.
Although the case was not decided on constitutional principles, Justice Douglas reasoned that Congress had consistently upheld the freedom of religion of U.S. citizens to refuse to take oaths and should not, therefore, deny this important right to those wishing to become citizens. It could not have been congressional intent to require an alien to set aside religious beliefs in order to become a citizen but not to require the same in order to become a member of Congress. Inasmuch as religious freedom was firmly embedded in the country’s traditions, if Congress wished to prevent conscientious objectors from becoming citizens, it had to do so by express statutory enactment.
In the Naturalization Act of 1952,ICongress provided that, if the alien could prove by “clear and convincing evidence… that he is opposed to the bearing of arms… by reason of religious training and belief,” he or she could still take the oath of allegiance and become a citizen of the United States.
The Sanctuary Movement
One modern phenomenon in immigration is the sanctuary movement that emerged during the 1980s. This was a movement of people who smuggled illegal refugees from Central America across the Mexican border to Arizona. They counseled the aliens about how to cross the border and directed them to churches that operated as sanctuaries. They acted out of humanitarian and religious motivations as well as with the intent to protest the involvement of the United States in what they believed to be illegal wars in Central America. Churches were used as refuges on the grounds that they have historically operated as sanctuaries from governmental authorities. In other words, supporters of the sanctuary movement believed that the Immigration and Naturalization Service could not legally raid the churches in their search for illegal aliens.
In United States v. Aguilar(9th Cir. 1989) appellants had been convicted of several crimes connected to the movement’s smuggling activities. Many of their defenses centered on their religious motivations. For example, several had been