The gripping case of Scott Warren

Is offering assistance to illegal immigrants a protected religious practice?

One trouble with liberty is that you never know what people will do with it. In recent years, American conservatives have been passionate defenders of individual religious freedoms, such as the right to have nothing to do with same-sex weddings. But Scott Warren, an idealistic geographer who is facing felony charges for a very different sort of conscientious objection. 

On June 11th his trial, which has been closely watched at the liberal end of America's religious spectrum, reached deadlock after jurors failed to agree despite three days of deliberation. That was a better result than Mr Warren and his many supporters feared. Prosecutors may seek a retrial. 

Lawyers for Mr Warren, who has taught at Arizona State University, have insisted that a generically spiritual motive lay behind the actions he took, which involved feeding and sheltering two migrants. He has been charged with conspiring to harbour and transport illegal aliens, crimes punishable by up to 20 years in jail. 

With the help of some eminent scholars, his defenders had made an unsuccessful but plausible enough effort to shelter him behind the Religious Freedom Restoration Act of 1993, a measure intended to protect a broad variety of religiously motived acts from the heavy hand of the law. 

Where does religion come in? Mr Warren is a leading light in No More Deaths, an NGO associated with the Universalist Unitarian Church, a liberal denomination, which tries to reduce the number of would-be migrants who perish in the desert. Nearly 3,000 bodies have been found in southern Arizona since 2001.

Although not formally religious himself, Mr Warren has much to say about the numinous nature of the desert and the rituals he performs when (as has happened 18 times) he discovers a dead body. On June 5th robed representatives of more conventional faiths, including a rabbi and an imam as well as many Protestant churches, came to the courthouse in Tucson to show their solidarity. 

Jum Wallis, a prolific writer who is one of the best-known figures on America's religious left, says the case was crystal-clear: "He is being prosecuted for following the command of Jesus, which is to feed the hungry, refresh the thirsty and invite in the stranger." The case was so simple that it should not be a matter of political contention, he thought. 

But the cause of religious freedom, which is one of America's founding ideals, has mutated ideologically in odd ways. The Religious Freedom Restoration Act (RFRA) drew near-unanimous support in Congress and was signed by Bill Clinton. It laid down that the government could not "substantially burden" an individual's religious liberty unless it had a "compelling interest" in doing so. The law was a counterweight to a Supreme Court ruling (concerning the use of intoxicants in Native-American rituals) which had made it a bit easier for the government to override individual liberty in matter of belief. 

Then, in 1997, the Supreme Court ruled that the RFRA could not constrain the behavior of state governments. That prompted states to pass their own versions of the RFRA, of which the most controversial was the one signed in Indiana by Governor Mike Pence, now the vice-president, which was denounced as a charter for discrimination against gay people.

As Elizabeth Sepper of the university of Texas, points out, the Clinton RFRA was intended to protect small, idiosyncratic minorities or individuals. Recently, RFRA-type laws have been used to shield members of the Christian majority from having to obey anti-discrimination laws. That has made the "religious freedom" slogan so unpopular on the left that House Democrats introduced a bill over the winter that would limit the scope of freedom-of-conscience cases to harm third parties. 

Mr Warren is by no means the only progressive hero invoking religious liberty in court. The Clinton law is also being cited by seven left-wing Catholic activists from the anti-nuclear Plowshares movement, who face the possibility of 25 years in jail after entering a naval submarine base in 2018. 

In some ways, the use of religious-freedom laws in left-wing causes is a mirror image of the tactics energetically employed by conservatives. By rooting successfully for the right of devout employers to opt out of contraceptive coverage, conservatives have loosened the accepted meaning of the term "substantial burden" and reduced the onus of proof. 

If the pious owners of a corporation an argue that their freedom is substantially burdened by a health-care plan, then it becomes a bit more plausible for an altruistic aid worker, or even a pacifist nun, to say that freedom is being curtailed unless they too are free to act on their ideals. As Brie Loskota of the University of Southern California puts it: "Conservatives have turned religious freedom into a super-right that undermines all others... their new idea is that an individual conscience can override absolutely anything."