In a brief that evokes the sanctuary movement of the 1980s, religious leaders in Texas recently filed an amicus brief in support of a nonprofit organization’s efforts to resettle Syrian refugees. The brief is part of a small but growing trend of using statutory and constitutional religious liberty protections—which have been used to great effect by the religious right— to advance progressive causes.
Since filing suit in early December, the state of Texas been embroiled in a complicated and politically charged legal battle with the U.S. government about the resettlement of refugees within its borders. In its original complaint, the Texas Health and Human Services Commission argued that the government had resettled refugees “without consulting with Texas or working in close cooperation with the Commission” in violation of the Refugee Act of 1980. The suit additionally claimed that the nonprofit International Rescue Committee (IRC), which provides aid to refugees, had broken contracts with the State. Among other relief, it requested an injunction preventing the resettlement of Syrian refugees until the court found that the government and IRC complied “with their statutory and contractual duties to consult with Texas in advance of placing refugees and to provide information to the Commission and work in close cooperation with the Commission.”
The amicus brief, signed by Christian, Jewish, and Unitarian clergy members, argues that Texas’ efforts to stymie the resettlement of refugees based on their national origin “threatens religious freedom in Texas.” Citing the religious liberty protections of the First Amendment, the federal Religious Freedom Restoration Act (RFRA), and Texas’ Religious Freedom Restoration Act (TRFRA), the brief argues that the “State’s actions against local resettlement agencies potentially affect the ability of many religious Texans to live out and enact [their] beliefs,” including their “sincere calling to provide charitable and humanitarian aid to refugees.”
It’s a somewhat strange argument, considering that the amici are not asking for an exemption from any state or federal law that currently restricts them. Rather, they are claiming that Texas is violating their religious rights by filing a lawsuit that does not involve them at all. Nevertheless, it’s worth taking a closer look at the brief, as similar arguments could be made in the future to request exemptions from federal immigration laws.
Under both RFRA and TRFRA, the government cannot substantially burden the free exercise of religion unless it is the least restrictive means of furthering a compelling government interest. Although the brief mentions both statutes, it challenges only state actions and therefore only the latter law should apply. Texas courts have historically looked to how RFRA has been interpreted, however, in interpreting TRFRA.
Texas courts analyze TRFRA using a four-part test, asking: (1) whether the government’s regulations burden the plaintiff’s free exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a compelling governmental interest; and (4) whether the regulations are the least restrictive means of furthering that interest.
Looking to the first question, the amicus brief states that it “cannot seriously be doubted that the sincere calling to provide charitable and humanitarian aid to refugees constitutes free exercise of religion.” This claim is supported by the Supreme Court’s recent opinion in Hobby Lobby, which deferred entirely—and problematically— to the Plaintiffs’ definition of what constitutes religious exercise. Federal courts have been extremely reticent to take a deeper look at the definition and scope of “religious exercise,” leading to a dearth of theory and guidance on this issue. And while a few Texas cases interpreting TRFRA have looked more deeply into the definition of religious exercise, other cases have followed federal courts’ broad and deferential view. On the other hand, while providing aid may constitute religious exercise, it’s not clear that the federal government’s statutory process for accepting or rejecting refugees implicates the amici’s exercise of religion at all.
The brief’s argument on the second TRFRA question— whether any burden placed on their religious exercise is substantial— is far less convincing. The amici argue that the State’s actions burden religious practice by hindering the ability of religious nonprofits to provide aid, and by requiring agencies to “discriminate against certain refugees solely because they were born in Syria,” which is “repugnant to the religious beliefs of many people of faith, including amici.” While religious organizations may have a right to provide services to refugees in a nondiscriminatory manner, this right is not substantially burdened by Texas’ efforts to force the federal government to comply with its own immigration law, or to enforce contracts the state signed with IRC. The court may well find that neither the federal government nor the IRC breached any law or contract with Texas. However the amici’s religious practice is not curtailed, and there is no impact on their religious expression, by the state’s actions in alleging this misconduct. Amici may have a right to provide aid to Syrian refugees, but nonprofits don’t have a right to make the government deliver Syrian refugees to them.
The brief sums up its argument on the third TRFRA question in one sentence: “Texas’s amorphous claim of a security interest in excluding Syrian refugees from Texas does not approach the compelling government interest necessary to support impinging on the religious freedom of faith-based charities.” Arguing that there is no compelling interest, it does not address the fourth question regarding whether the state’s actions are the least restrictive means of furthering its interest.
It’s hard to extrapolate to future RFRA claims based on this case, as RFRA demands that courts ask whether or not there is a compelling interest in applying the challenged law to the petitioners specifically. In this case, Texas’ suit against IRC and the federal government does not involve the amici at all. Nevertheless it seems safe to say that the government will at least sometimes be able to demonstrate a compelling interest in enforcing its immigration laws on everyone, including religious persons and organizations.
Texas’ suit has been a long shot from the beginning, so the amicus brief is unlikely to be a deciding factor in the court’s ultimate decision. Nevertheless, the brief may spark the imagination of other pro-immigrant rights religious leaders to speak out when “[p]eople of faith feel trapped” between the “State’s [actions] and their religious calling to care for the needy and downtrodden.” While this is a noble goal, the amici’s argument could create risky precedent if successful. If RFRA requires the government to bring Syrian refugees to Texas, it could open the door to demands by groups across the political spectrum for government assistance in carrying out their own religious missions. This goes far beyond the intended and appropriate scope of RFRA.
 See, McFaul v. Valenzuela, 684 F.3d 564, 576 (5th Cir. 2012) (“Claims under TRFRA may be resolved by consideration of case law applying RLUIPA and its predecessor, the Religious Freedom Restoration Act of 1993.”); A.A. ex rel. Betenbaugh v. Needville Indep. School Dist.; 611 F.3d 248, 259 (5th Cir. 2010) (“Because TRFRA and its federal cousins—RFRA and RLUIPA—were all enacted in response to Smith and were animated in their common history, language and purpose by the same spirit of religious freedom, Texas courts consider decisions applying the federal statutes germane in applying the Texas statute”) (internal citations omitted).
 See, e.g., Merced v. Kasson, 577 F.3d 578, 588 (5th Cir. 2009).
 See, e.g., Emack. V. State, 354 S.W.3d 828, 839 (Tx. Ct. App. 2011) (Appellant does not point to evidence that would support a finding that the searches conducted … curtailed his ability to express adherence to his faith through a particular religiously motivated act…); McFaul v. Valenzuela, 684 F.3d at 576-77.
 For example, a 2011 opinion held that a jury could conclude that the religious exercise of church groups encompassed not just the right to feed the homeless at all, but to “spontaneously share food with homeless people or to actively seek them out in hard to reach, unpredictable, and ever-changing locations.” See, Big Hart Ministries Ass’n Inc. v. City of Dallas, 2011 WL 5346109 at *4 (N.D. Tex. 2011).
 Texas doctrine on what constitutes a “substantial” burden is somewhat muddled, but has been described as a burden that is “real vs. merely perceived, and significant vs. trivial,” with courts focusing on the “degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression.” See, Merced v. Kasson, 577 F.3d at 588-89.