The Messenger Matters
Rev. Craig B. Mousin
Recently, the U.S. Supreme Court provided a wonderful
opportunity to merge the biblical message and Catholic Social Teaching with
mission and values in employment decisions. As previous editions of Update have
noted, the Bible, Christian theological tradition, and Catholic Social Teaching
(CST) all highlight the welcoming of the foreign born into our land.1 In
contrast, U.S. immigration laws ban the employment of persons who are not
citizens or otherwise authorized to work by the federal government—setting up a
conflict between the law and the Christian religious tradition to welcome the
stranger as the native.
Last January, in Hosanna-Tabor Evangelical Lutheran Church
and School v. Equal Employment Opportunity Commission, the Court held that the
First Amendment protects religious institutions in making decisions regarding
choice of their religious leadership, upholding a “ministerial exception” to
the nation’s anti-discrimination laws.2 In that case, as summarized in the spring
2012 issue of Update, a unanimous court stressed that the
Constitution’s religious liberty provisions gave religious employers autonomy
to decide who is best to lead them without government interference.
Justice Alito in his concurrence concisely remarked: “When
it comes to the expression and inculcation of religious doctrine, there can be
no doubt that the messenger matters.”
The EEOC had argued that such a holding might permit
employers to hire undocumented persons without following the employer sanctions
provisions of the Immigration and Nationality Act. The attorneys for the local
church contended that the ministerial exception would not allow religious
organizations to hire the undocumented as ministers, arguing instead that
immigration laws would “remain untouched.”3 Apparently unconvinced
by the wisdom of either side’s arguments, Chief Justice Roberts instead
announced, “There will be time enough to address the applicability of the
exception to other circumstances if and when they arise.”4 Given the convergence of events, specifically,
the long history of the Catholic theological tradition on immigration, the
Hosanna-Tabor decision, and the U.S. Conference of Catholic Bishops’ recent
letter on religious liberty,5 that time may have come.
Legal Threats to Discerning the
Divine: One common theme in the biblical stories regarding
immigrants reveals that the messenger of God frequently arrives as the
immigrant, the sojourner, the stranger, the other. In Leviticus 19:34, we hear
God’s instruction to “treat the immigrant as the native, for you were once
slaves in Egypt.” In Hebrews 13:2, we are instructed to show hospitality to the
stranger, for in so doing, we often entertain the divine messenger. As the last
two editions of Update have noted, CST on immigration has developed from these
biblical understandings and the Catholic theological tradition of treating the
stranger equally as the native. Laws that prohibit hiring of a foreigner or a
person not designated by the national government as authorized to work under
the Immigration Reform and Control Act of 1986 (IRCA) stand in stark contrast
to such biblical understandings of ourselves and the immigrant. In effect, they
deny a faith-based organization’s ability to discern whether the one it seeks
to call for leadership is that divine messenger, jeopardizing the religious
organization’s future.
When the U.S. Conference of Catholic Bishops recently
issued Our First, Most Cherished Liberty, it cited several examples of
government laws that challenged the Church’s ability to be the Church,
including state laws such as those in Alabama that restrict the Church’s
ability to show hospitality through its ministries to feed the hungry, clothe
the naked, and shelter the homeless. The bishops recognized that the conflict
between the state and conscience might at times cause one to either refuse to
follow an unjust law or face the consequences of civil disobedience.
Such decisions are weighty ones and require significant
thought and prayerful discernment within the community. The Hosanna-Tabor
decision, however, may provide faith organizations the ability to maintain
integrity with their Holy Scriptures and teachings while following the law. The
ministerial exception might allow organizations to hire undocumented persons in
ministerial positions. Imagine university ministers who have fled their
homelands seeking safety and peace in the United States, teaching the Joseph
story of freedom from slavery to leadership positions. Imagine undocumented
persons who have traveled from Central America crossing deserts and suffering
hardship leading a Bible study on the Exodus for university students. Imagine
if religious universities and colleges joined churches, synagogues, and mosques
throughout the nation in hiring undocumented persons as ministers, rabbis, or
imams who—through prayer, witness, and example—revealed the message of
hospitality to the stranger. Would our students gain greater understanding of
CST and the biblical message? Would universities and colleges discover new ways
to incorporate and implement CST into their policies and procedures?
For prudential reasons, some might argue that Chief Justice
Roberts’ decision to leave this question for another day is too slim a reed to
put institutions at legal risk by hiring an undocumented person as a minister.
Others might note that the complexity of immigration laws and the confusing
interaction of civil and criminal penalties make this claim to the ministerial
exception too frightening to envision. Indeed, although immigration law has
been considered a civil law for over a hundred years, the federal government
has enacted laws increasingly criminalizing offenders, both those entering this
nation and those employing them. Even if the ministerial exception protected an
institution, hiring an undocumented person as a minister does not automatically
protect that minister from greater risk to deportation, as the person’s
underlying undocumented status would not seem to change with employment under
the Hosanna-Tabor exception. Thus, increased risk of apprehension and removal
might find few undocumented persons willing to accept a call to university
minister positions
Such fear underscores how employer sanctions restrict the
religious freedom of faith-based organizations to choose their ministers
without government interference. The Supreme Court’s insistence that government
cannot deny religious institutions autonomy to name their leadership dovetails
with the bishops’ insistence that Catholics join with other religions to
provide education when government laws violate religious liberty. Employer
sanctions, by denying the community of faith its ability to call its messenger,
eviscerate the community’s ability to discern the divine messenger or choose
its leaders. Given the bishops’ call to vigilance, even for those universities
and colleges not willing to risk seeking the ministerial exception for the
undocumented, such institutions can still take other actions to oppose this
restriction on religious liberty.
Taking Action: The bishops stressed that Catholic colleges, universities,
and other faith-based institutions can play a special role in the effort to
engage more members of the body politic in protecting religious liberty.
Employer sanctions and the I-9 forms that all new employees must complete to
demonstrate their authorization to work in the United States provide a
particularly apt place for education about CST, mission and values, and
religious liberty. The harsh consequences of the federal law faced by the
employee occur in at least three occasions: (1) when initially seeking
employment; (2) when hired with authorization, but subsequent events cause an
otherwise good employee to become unauthorized under the immigration laws,
necessitating termination; and (3) when hired despite lack of authorization, which
was not discovered until information comes to the notice of the employer and
termination is required under the immigration laws—all scenarios not faced by a
native.
Severe consequences follow all three scenarios, including
the loss of employment and possible removal from the country, breaking up
families and communities, and disrupting the workplace. Immigration law is
complex. Conflicting instructions and regulations, and changing judicial
interpretations and congressional actions all merge to make the complexity
especially daunting to human resources departments and workers themselves. Fear
of sanctions may chill institutions, with the consequences falling upon the
workers.
Why not seize this opportunity to seek ways to ameliorate
the process within legal parameters? Internally, colleges and universities can
work with their human resources staff to implement policies that make the
employer sanction provisions as hospitable as possible. If an applicant would
be hired but for lack of paperwork, work with local bar associations to provide
lists of competent immigration attorneys, including those of the Catholic Legal
Immigration Network, Inc. (CLINIC) or Catholic Charities. Some employers
provide for the expense of legal assistance for employees who discover they may
be eligible for employment, but simply lack the proper paperwork. Consider
policies to rehire workers terminated for lack of proper status, but who
subsequently obtain status.
Outside campus, colleges and universities can work to
educate Congress to the incompatibility of employer sanctions with CST and the
biblical call to hospitality. Demonstrate the tragic loss to the common good
when undocumented students graduate from our nation’s schools, but fail to use
their skills because they cannot obtain work authorization. Inform local
communities about how employer sanction provisions break up communities and
hurt the common good.
Universities and colleges may also opt to build upon the
research that demonstrates how employer sanctions undermine the U.S. economy,
stifle business initiative, and weaken local communities.6 Immigration
attorney Angelo Paparelli reminds us that one purpose of employer sanctions is
to increase employment opportunities for U.S. citizens.7 If the undocumented person brings innovation,
ideas, and imaginative solutions for increasing the number of jobs in this
nation, then perhaps new theories of work and corporate legal structure might
lead to solutions that fulfill the purpose of IRCA without necessitating
removal of that person. Universities and colleges could link business schools
with their entrepreneurial institutes and law schools to seek those novel
responses. Such collaboration could fulfill St. Vincent DePaul’s call to be
“inventive to infinity.”8 Law schools could also provide the legal
scholarship and briefs that respond to those cases, raising the issues Chief
Justice Roberts postponed to a subsequent day
Unfortunately, the draconian timelines of employer sanctions
and the harsh realities of immigration law limit the remedies that might be
available. Continuing relationships to legal services for immigrants might be
the best an institution can provide for those not hired or subsequently
terminated under employment sanctions. Hiring an undocumented person as a minister
of care might also offer pastoral help with particular sensitivity to those
terminated or not hired under the law. Indeed, the messenger matters.
We invite you to respond to this column through our blog,
http://hr-forum-ccu.blogspot.com/. There, we also invite you to post links to
your mission statements as well as HR and compensation philosophy documents.
This sharing will permit a fuller discussion of how mission and CST influence
the employment process.
The opinions expressed
in this column are the author’s alone and do not represent those of DePaul
University or the Association of Catholic Colleges and Universities. This
article does not provide legal advice on the matters discussed above. Any
issues involving employment and immigration should be discussed with a
competent licensed attorney in your state.
1 See Collier, E. (Fall 2011). Higher education, mission and
undocumented students. Update, 11;
and Weldon, L. (Summer 2011). The Catholic Church and immigration: Pastoral,
policy and social perspectives. Update,
20. Both articles also provide a number of resources on Catholic responses
to immigration.
2 132 S.Ct. 694, 710 (2012).
3 Petitioners Reply Brief, at 20, 2011 WL 3191978.
4 Hosanna-Tabor at 710.
5 United States Conference of Catholic Bishops Ad Hoc
Committee for Religious Liberty. (May 17, 2012). Our First, Most Cherished Liberty, A Statement on Religious Liberty.
6 For one example of how IRCA fails to meet its alleged
purposes, see Massey, D.S., Durand, J., and Malone, N.J. (2002). Beyond Smoke and Mirrors, Mexican
Immigration in an Era of Economic Integration. New York: Russell Sage
Foundation.
7 See Paparelli, A. (March 18, 2012). Immigration Options for Dreamers Under Existing Immigration Law. Last
visited on May 30, 2012.
8 Coste, P., C.M., ed. (1985–2010). Vincent de Paul: Correspondence, Conferences, Documents, ed. and
trans. by Kilar, J., D.C., Poole, M., D.C., et al., 1-13a & 13b. New York:
New City Press, 11:131.
A slightly longer version of this article can be found at: http://www.accunet.org/i4a/pages/index.cfm?pageID=3753
A slightly longer version of this article can be found at: http://www.accunet.org/i4a/pages/index.cfm?pageID=3753