The events at Broadview represent the most significant attacks on religious liberty by the federal government that I can think of in my lifetime. Even if the church does not involve itself—and it should!—as members of the church, we can and should demand that the federal government respect religious exercise and that it follow the…
If you’re not in the Chicagoland area, I don’t know what comes to mind if I say “Broadview.” ICE has a processing facility in Broadview, IL. It’s meant to hold up to 236 adults for up to 12 hours each, before they’re released, transferred, or deported. As a result of the Trump administration’s Operation Midway Blitz, however, it has transformed into a de facto detention center, holding people for up to 72 hours in unsanitary and unsafe conditions. Testimony before a federal judge has alleged that people are forced to sleep on concrete floors or plastic chairs, toilets are overflowing, and detainees get insufficient food and water. Judge Gettleman ordered that the facility provide bedding and sufficient space to sleep and has ordered ICE to clean cells at least twice a day and provide detainees with toiletries.
But the inhumane conditions at Broadview aren’t the reason I’m writing a post here; rather, Broadview is the site of what may be the most troubling assault on religious liberty by the federal government in my lifetime.
By way of context: over the last several weeks, groups of clergy have requested permission to and attempted to bring communion to detainees a number of times. (Prior to the Trump administration, clergy provided communion to people being held at Broadview on a regular basis.) ICE and the Department of Homeland Security have rejected the requests every time. These denials are significant enough that Pope Leo has weighed in, calling on the Trump administration to allow communion in the Broadview facility.
But there’s more! ICE have shot clergy at the Broadview center with pepper balls. Pastor Black of the First Presbyterian Church in Chicago has testified that being shot had a chilling effect on his religious practice. (I’m not linking to it because I can’t find the source at the moment; if I do find it, I’ll link to it.)
All of that represents a real imposition on religious liberty. But yesterday, Block Club Chicago reported that a federal representative told clergy at the Broadview facility that there would be “no more prayer” in front of or in the facility. I suspect that this would even violate the light burden that Employment Division v. Smith places on governmental impositions on free exercise. Under Smith, a law that burdens religious practice is constitutional if it is facially neutral toward religion and is generally applicable. A prohibition on prayer is absolutely not facially neutral toward religion.
But Smith largely (probably? kind of?) eviscerated the Free Exercise Clause of the First Amendment. In response, Congress enacted the Religious Freedom Restoration Act, which meant to return free exercise jurisprudence to its pre-Smith standard. Under RFRA, the government can’t substantially burden religious practice, even through neutral and generally applicable laws, unless the burden furthers a compelling government purpose and is the least restrictive means of furthering that compelling purpose.
And the law places the burden on the government to prove both that it has a compelling purpose and its actions are the least restrictive means of achieving that purpose.
Does the government have a compelling purpose in preventing clergy from praying—on state, not federal, land, for what it’s worth—in front of Broadview? I can’t think of one, but I also don’t have to think of one: it’s on the federal government to prove that it does.
And even if it does, is forbidding prayer the least restrictive means? I’m skeptical that any court in the U.S.—including the U.S. Supreme Court—would believe that. In fact, the Supreme Court has been particularly solicitous of prayer in its recent jurisprudence.
Will the Church of Jesus Christ of Latter-day Saints get involved? On the one hand, it has had limited presence in religious protests at Broadview (though not no presence: members of the church have joined the protests in their capacity as religious people). But the church has been aggressive about staking out an expansive reading of religious liberty.
The events at Broadview represent the most significant attacks on religious liberty by the federal government that I can think of in my lifetime. Even if the church does not involve itself—and it should!—as members of the church, we can and should demand that the federal government respect religious exercise and that it follow the Free Exercise clause and RFRA.
Photo by Paul Goyette. CC BY 4.0
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Sam Brunson
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