Saturday, March 10, 2018

Where Hunchbacks Abide - A History of Sanctuary

     From Victor Hugo’s The Hunchback of Notre Dame “Finally he made a third appearance on the top of the tower of the great bell; from the thence he seemed to show exultingly to the whole city her whom he had saved; and his thundering voice that voice so rarely heard by any one, and never by himself, thrice repeated with frenzy that pierced the very clouds: Sanctuary, Sanctuary, Sanctuary” 
With the ongoing deportation of United States residents and the movement of many places of worship to provide Sanctuary to these residents to escape deportation, including my own Congregation, I thought I would examine the history of Sanctuary.
     There are some stories from ancient Egyptian and Persian cultures regarding asylum, and my research has shown that in Arab desert cultures, tents were set aside as sanctuaries for a limited period of time. The first formal documents of the conception of Sanctuary harken back to the Hebrew Scriptures – In Exodus, ch 21 v12, the book of Numbers ch 35 and then again in Deuteronomy which is believed to have been written later in the 7th century bce after Israel and Judah fell to the Assyrians. In Numbers, it is written the Lord tells Moses “You shall provide yourselves with places to serve you as cities of refuge to which a manslayer who has killed a person unintentionally may flee. The cities shall serve you as a refuge from the avenger”
     The passage goes on to indicate the creation of six cities. This must be understood in the historical context that murder was personally avenged by a family member of the victim. And it was very specific as the type of murder where someone could enter sanctuary. Only accidental murders without malice would allow one to stay in sanctuary. In the later written Deuteronomy, it is clear that there is more of local judicial system set up. There is a provision that no one can be put to death by the testimony of a single witness. It also provides an appeal process. It states “if a case is too baffling for you to decide….you will appear before the Levitical priest.”  So this put judicial matters under the religious authority. As we shall see later secular vs. religious authority becomes a growing tension throughout history on this issue. There were some other interesting rules in regard sanctuary in Hebrew biblical times. The avenger was allowed to kill the accused if they caught the accused before they entered sanctuary, or if the accused wandered out of sanctuary. The cities of sanctuary allowed time for cooler heads to prevail and allow for justice. The cities were considered places of atonement. Even someone who committed manslaughter has to come to terms with the results of their action. After the High Priest died, his death was considered atonement for the sins of the accused, and the accused could then return to their homes. It is said, that due to this custom, the high priest’s family kept good care of the sanctuary cities so as not to give anyone incentive to try to kill the high priest.  In the Hebrew scriptures there are two notes referring to altar sanctuary in first kings, where those who opposed Kings Solomon’s rule sought refuge. In the end both were executed. So although there was a tradition of altar sanctuary within Judaism, Hebrew Sanctuary tended to be more communitarian.
     Asylum, was also common in the classical Greek period These were centered around temples of various deities. Asylum seekers were asked to perform a supplication, pledged devotion to the demi-god and then could be accepted into their  sanctuary.  It became more about the inviolability of the holy place. In one instance Spartans in search of a person in sanctuary instead of breaking into a Greek Temple, blockaded it, until the criminal starved to death. In the Greece Sanctuary often ended up being abused by a criminal element, and when the Romans came to power they severely limited sanctuary rights throughout their empire.
     With the rise of Christianity the Jewish concept of sanctuary was reflected within the Christian Churches, although it was more focused on the authority of the religious leaders.  Although certainly practiced sooner, the first reference to sanctuary in Christian documents is found in the Theodosian Code of 392.  Public Debtors, Jews, heretics, and apostates were excluded from sanctuaries. Sanctuary seekers could be fed and lodged in the churchyards and the surrounding church precincts.
Roman Emperor Justinian I asserting Roman legal dominance, detailed in the consolidation of roman laws, who could receive sanctuary and restricted sanctuary even further excluding certain categories of crimes and individuals, such as murderers, rapists, adulterers and  tax officials.. Trying to reassert papal dominance,  Pope Leo I declared that “the steward and the advocate of the church should act as an inquisitor and examine all persons seeking sanctuary.” This took the authority away from the holiness of the location and moved it towards the holiness of the church leadership and was the first of many future battles between secular and church leadership.
     In the Synod of Orleans in 511 the Church passed a rule that houses of bishops and clergy, cloisters and cemeteries would be legal sanctuaries, extending the physical space beyond just the Church building. It is important to note that in early Christianity there was less conflict with secular authorities as sanctuary was often used by slaves escaping slave owners. Church leaders often negotiated with slave owners for better conditions prior to their return, arranged the sale of the slave to another owner, and in many cases purchased the slave from the slave owner.  Over time people who sought sanctuary included citizens, debtors, and artisans, and tensions between church and state over sanctuary would mount. Much of the tension depended on who was in power at any given time and their religious allegiance at the time. However in the 8th and 9th centuries in the era of Charlemagne and the Carolingian emperors, required that sanctuary seekers be prosecuted in secular courts. They viewed Sanctuary as a holding place until trial was ready to proceed. Over time, as the Empire fragmented into various monarchies, such monarchs often resisted the Church’s authority.
Sanctuary existed in England under the Anglos Saxons rule, but was always more limited and more political. . In 596 the Anglo Saxon legal code did include a penalty for the violation of the Church’s peace. Alfred the Great in 887 did allow for asylum for three days for anyone accused of any crime in order to negotiate a settlement between parties without violence. Later on Alfred extended the sanctuary for 7 days but without food. Again this was done as a way to encourage both sides to negotiate. Some estimates are that as many as half the crimes in the early middle ages were settled in sanctuary as in the legal courts.
     One unique aspect of English Sanctuary was chartered Sanctuaries by the Government.  In these cases the royal court would grant a charter to a specific church. This was often large churches in big cities. Their Sanctuary rules had complex procedures and the sanctuary was often offered within a mile of the sanctuary location. Thus the concept of the holiness of the location was diminished even further.  William the Conqueror in approximately 1070 although allowing sanctuary added provisions, first limiting the number of times someone could go into sanctuary, requiring restitution to victims and then depending on the crime or number of crimes,  required the sanctuary seeker to leave the province without ever returning.
     During the Plantagenet Kings rule in the 12th and 13th Centuries many chartered Sanctuaries were established. However there was also a consolidation of power over the various lords throughout the land and it limited their abilities to offer sanctuary on their own. In some instances guards were placed at sanctuaries and they were fined if the sanctuary seeker escaped. During this time the policy was created that allowed the sanctuary seeker 40 days to decide whether to surrender to trial or to be exiled from the realm. (It could be longer or indefinite if they were in a chartered sanctuary) If they chose exile they would be given safe passage to a port and would be given 40 days to find a ship out of the country. After 40 days theoretically they could return to their place of sanctuary and start the process again.
     As commercial society increased and the court of law improved within secular society, sanctuary diminished. Debtors became the largest occupiers of sanctuaries. Also many chartered sanctuaries started becoming havens for criminals as a base of operations. Craftsman would use sanctuary to avoid control or regulation by craftsman guilds and to avoid paying taxes. (sort of how business’s use the Cayman Islands) Therefore the sanctuaries became a source black market counterfeit goods.   The church seeing this abuse of the sanctuary privilege, and with pressure of King Henry VII, who also saw many political enemies enter sanctuary,  Pope Innnocent VIII in 1486 issued a papal bull stating that sanctuaries were only to be used to save life and limb and under certain circumstance allowed the King’s army to enter sanctuary and arrest someone
     Henry VIII was the King that hastened the end of sanctuary. In 1530 parliament limited exile options. This was due to Henry’s fear that his enemies would gather with a foreign country and attack him if they were exiled. After the creation of the Church of England and the renunciation of Papal authority in 1534  there was a concerted legal effort to end Sanctuary. 1536 Parliament passed a law that required those in Sanctuary to wear a badge, be branded on their thumb, and prohibited them from carrying weapons and placed them on a curfew.  In 1540 Parliament ended the practice of chartered sanctuaries, and severely limited what types of crimes a local parish could hold someone in sanctuary for. However successive Kings reinstated some sanctuary privileges and it was not until 1604, under King James I that Elizabethan laws of sanctuary were repealed. Even though laws about sanctuary regulations were repealed, in 1624 Ecclesial right to Sanctuary was eliminated entirely by the this statute in the law “And be it also enacted by the authorities of this present parliament, that no sanctuary or privilege of Sanctuary shall be hereafter admitted or allowed in any case. “ It was not until 1983 that sanctuary was eliminated from Catholic Canon law.
     So whereas with the Hebrews we saw more of a communitarian sense of sanctuary, and under Christianity we saw a clerical right of sanctuary which then morphed into a secular regulation of sanctuary, Sanctuary in the United States took a different perspective. In some ways we could view the early American colonies as a form of sanctuary itself from religious persecution in Europe. And although no sanctuary was claimed, many churches felt morally bound to offer sanctuary as part of their work with the Underground Railroad helping slaves escape to freedom. For the first time, Sanctuary became not something from doctrinal law, or ecclesiastical privilege, but rather from individual’s personal moral and religious convictions.
     The first time that Sanctuary was publicly claimed in this country was by the Arlington St. Unitarian Church in Boston when they offered sanctuary to individuals who opposed the Vietnam War.  Many other Unitarian Churches as well as Churches from many other denominations joined in. They knew they did not have a legal basis for this. Sanctuary became more of an act of conscience, for the individual and for the Church. It claimed sanctuary as an act of civil disobedience based on their theological and moral imperative. These acts of personal conscience moved rapidly to college campuses across the country. In 1971 the city of Berkeley California  became the first governmental body to declare itself a sanctuary. Its council declared “to provide a facility for sanctuary for any person who is unwilling to participate in military action and banned city employees including police officers, from aiding the investigation or arrest of anyone protected by the city’s sanctuaries. The FBI did not respect sanctuary and sometimes quickly and other times after a short wait hoping for a negotiated outcome, invaded sanctuary spaces. Most people avoiding the draft were sent to military courts. Some were allowed to enlist and claim conscientious objector status. Most other civilians who provided civil disobedience by blocking authorities were often charged with misdemeanor crimes. No one was ever allowed to bring up the legal defense of religious freedom to claim sanctuary in any court case.
     The next time Sanctuary was claimed in America was during the 1980s. At this time in our Country’s history, there were civil wars and conflicts throughout Central American countries.   After a military coup in El Salvador, many Catholic activists there protested the new government’s oppressive tactics. Excessive violence ensued against protesters by government death squads. Many became aware of this situation due to the assassination of the Catholic Archbishop Romero in San Salvador and the murder and rape of American Catholic missionary nuns in 1980. The increasing violence in Central America led many Central Americans to flee to the United States and eventually on to Canada which had more liberal immigration policies. The American government continued to fight their status as refugees, claiming they were economic refugees, not political refugees. As we know looking back we were secretly arming and supporting anti-communist forces in central America that caused much of the violence. Arizona was the hotspot for this due to it proximity to the Mexican border where many undocumented refugees passed. Two of the leaders of the 80s sanctuary movement were Rev. John Fife of Southside United Presbyterian Church in Tuscan and Jim Corbett a retired Quaker rancher.
     In 1981 the Tuscson Ecumenical Council which Fife headed created a task force to respond to the needs of the refugees, such as raising money for bond and legal fees to help with the asylum process. They soon realized that this was futile in the face of an unflinching Government and had to take further steps. They were part of group that arranged for their transport across the Mexican border started to house refugees  in their Congregations and hide the refugees in their homes.  This spread quickly and over time the number of congregations that offered Sanctuary were over 500 across all religions and denominations throughout the country  23 cities and 4 states passed sanctuary laws granting refugees the right to remain in their locals and forbid local authorities from cooperating with Federal Authorities.
     Rev. David Cherier a United Church of Christ minister in declaring sanctuary did raise the historical basis for it by stating. “This is the time and we are the people to reinvoke the ancient law of sanctuary, to say to the government you shall go this far and no further. This is the time as we are the people fleeing the blood vengeance of the powers that be in El Salvador. We provide a safe place and cry “Basta” Enough!!. The blood stops here at our doors. This is the time to claim our sacred right to invoke the name of God in this place. To push back all the powers of violation and violence in the name of the spirit to whom we owe our ultimate allegiance. At this historic moment, we are the people to tell Caesar, No trespassing, for the ground upon which you walk is holy.”
     I think it is also interesting to note that from a religious perspective at that time in our history the religious right was on the rise and  Ronald Reagan used religious symbolism and religious issues a part of his campaign. Sanctuary was different in America also in part because it focused on a specific issue and not the concept of sanctuary. Sanctuary has also moved from someone being absolved for a sin, or requiring a confession of guilt for a crime, and has become a function to question our country’s morals. I do think there is some connection to overarching reach of the religious right in day to day life that encouraged those with liberal religious values to live them out in the public and political sphere as well.
     In 1985, INS launched a ten-month investigation dubbed Operation Sojourner, which included placing undercover agents in the sanctuary movements. They obtained the addresses of refugees by proposing to bring them Christmas presents.  Later that year based on information gathered by the informants, The US government announced 71 indictments against 16 people In the case  UA vs. Agular and as well indicted two other individuals in separate cases Jack Elder and Stacy Merkt, 
In the United States vs. Elder the court did agree that Elder did meet the religious test burden that his actions were motivated by a sincerely held religious belief, but also found that the government met its burden to demonstrate an overriding interest in protecting its immigration and naturalization system Even so, the jury found Elder not guilty.
All other sanctuary workers were found guilty and most were given suspended sentences or short house arrest. It is important to remember that they were indicted for transporting undocumented workers not providing sanctuary to them. One of the outcomes of these Sanctuary Trials in the 1980s was that it galvanized the public in support of the refugees and led first to them receiving  temporary protected status and finally in 1997 Congress passed the  Nicaraguan Adjustment and Central American Relief Act  which allowed these Central American refugees to apply for permanent residence
     Much of their sanctuary workers’ defense of those centered around their first amendment rights in the Constitution which includes “ Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”  This was the very first right granted by the Bill of Rights. 
In the Courts this defense over time has had mixed and often contradictory results.

In 1878 the US vs. Cantwell, the United States tried to differentiate religious action from what was subversive to the public good. In this case they found against Mormon’s religious right to practice polygamy.

In 1961 the court ruled similarly in Braunfield vs. Brown when Orthodox Jews challenged the closing of stores on Sundays. The court found that a financial loss due to religious freedom was not enough to change public policy

Yet 2 years later In Sherbert vs. Verner a women who was a Seventh Day Adventist was denied unemployment insurance because she refused to seek jobs that required work on Saturday which was against her religion’s Sabbath. The Supreme Court upheld her claim for unemployment. There was a subtle difference in that she was being asked to violate her belief, whereas the business was not violating a belief by not being open on Sunday. It’s a fine legal line.

In another case where religious freedom was upheld was Wisconsin vs. Yoder where members of the Old Order of Amish objected to mandatory public school citing their religious beliefs. The Amish’s religious rights were upheld

There have been numerous cases using drugs as a religious right. One was people v woody which allowed for people to use peyote in a religious ceremonial practice. Another case Employment Division v. Smith, in which Native Americans’ unemployment was denied due to their use of Peyote. In this case their religious freedom was denied. This may have been in part because their work they were fired from was a drug rehabilitation center.  There has been another case Leary v US  where drug use was claimed as a religious right, but unlike the native American cases, it did not show that its use was used in a ritual way in a sacred place as part of a religious service as it was in the Woody case. So tradition helps.Congress in response to the Smith case created a Religious freedom restoration act to make it easier for people to claim religious freedom. This law was ruled unconstitutional by the Supreme Court.

Also in 1990 there was a case Untied states vs. Lee where the claimant refused to pay taxes due to religious beliefs and the court found against him stating the state may justify a limitation on religious liberty by showing that is its essential to accomplish an overriding governmental interest. This case is often cited by those opposing the use of sanctuary.

Another case involving religious freedom was the Bob Jones University against the United states, whereby the courts upheld the denial of the their tax exempt status due to their explicit racial discrimination policies.

More recently in Burwell vs. Hobby Lobby, Christian owners of a private for profit corporation were allowed to deny their employees family planning benefits due to the owners religious preference. 
This combined both religious freedom and a corporations’ right to free speech as allowed under Citizens United.

     So as you can see each case in nuanced and unique. There will always be the challenge of whether the use of the religious freedom test is a slippery slope that makes government laws meaningless and on the other hand the constant denial of religious freedom makes religious freedom illusory. As we see over time Separation of Church and State in harder in practice then in theory.
Some of the the legal issues we face today as to whether these undocumented individuals face risk going back to their home countries, as well as the moral issue of deporting a parent from their children who are citizens. How has the United States created the circumstances that led to their displacement from their home country, and our corporations’ invitation to hire these individuals with little risk to themselves.  The issue of Sanctuary has never been answered by the court, but I imagine at some point soon this will happen.
     Over 1,100 Congregations have currently declared themselves sanctuaries. Much of this is to raise awareness and to provide time for the person in sanctuary to redress their grievances before being deported. . Of the 37 people in public sanctuary in 2017, 9 were able to be released with a reprieve in their residency status. The new Sanctuary movement focuses extensively on keeping families united, especially where families have both documented and undocumented members. With the advent of the possible deportation of recipients of  DACA or deferred action for childhood arrivals who came to this country as children the issue of sanctuary may become even more predominant. Another interesting aspect of the new sanctuary movement is that most churches are publicly announcing when they have someone in sanctuary as a way to provide a shield against harboring laws instituted under the Patriot Act.
     Public sanctuary today is growing. I am not aware of churches having been breached. Sanctuary has been allowed under an Immigration and Customs Enforcement (ICE) policy that indicates that
“Enforcement actions are not to occur at or be focused on sensitive locations such as schools, places of worship, unless;
exigent circumstances exist;
other law enforcement actions have led officers to a sensitive location, or
prior approval is obtained from a designated supervisory official.
The policy is intended to guide ICE officers and agents’ actions when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.

Locations treated as sensitive locations under ICE policy would include, but are not be limited to:
Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;
Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
Places of worship, such as churches, synagogues, mosques, and temples;
Religious or civil ceremonies or observances, such as funerals and weddings; and
During a public demonstration, such as a march, rally, or parade.

ICE officers and agents may carry out an enforcement action at a sensitive location without prior approval from a supervisor in exigent circumstances related to national security, terrorism, or public safety, or where there is an imminent risk of destruction of evidence material to an ongoing criminal case”
      So after hearing this policy there is a lot of leeway that would allow ICE to breach a sanctuary. Much of what prevents them from breaching the sanctuary is the public relations image doing so due to our cultural separation of church and state and the inviolability of  Church building as sacred space. But this is only a written policy and that can change with the stroke of a pen. Victor Hugo wrote “A writer is a world trapped in a person” I wonder what type of world will we create.

Politics and Religion in the United States, By Michael Corbett, Julia Corbett-Hemeyer, J. 
This Ground is Holy – Ignatius Bau
God and Ceaser at the Rio Grande
Sanctuary and Crime in the Middle Ages.
Jewish Study Bible
Various and miscellaneous articles.

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