Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, August 29, 2016

Is Rep. Brat's proposed Religious FIRE Act unconstitutional?

My Congressman, Dave Brat (R), recently introduced a bill that prohibits certain foreign nationals from making "any expenditure in the United States to promote a religion." I haven't seen much discussion or analysis, but the bill seems plainly unconstitutional because it discriminates against religion and is a content-based speech restriction that would fail strict scrutiny. Am I missing something? Here's a quick analysis:

Introduced as H.R. 5824, this bill is titled the "Religious Freedom International Reciprocity Act" or the "Religious FIRE Act."

The key operative section: "It shall be unlawful for a foreign national of a country that limits the free exercise of religion in that country to make any expenditure in the United States to promote a religion." Such expenditures are subject to forfeiture to the United States in a civil forfeiture proceeding initiated by the Attorney General.

The statute defines "expenditure to promote a religion" to include"the funding and practice of religious services, religious education, evangelical outreach, and publication and dissemination of religious literature." A "country that limits the free exercise of religion" is one "designated as such by the Secretary of State acting through the Assistant Secretary for Democracy, Human Rights, and Labor." 

There is no definition of "foreign national" to limit its application to some subset of foreign nationals. This prohibition thus encompasses all foreigners in the United States, including individuals present here legally, whether temporarily or as lawful permanent residents. Foreign law students, for example, would be violating the law by donating to a religious congregation while here. Lawful permanent residents who banded together to build a new church would also be violating the law. Religious congregations that receive donations from foreign nationals would be particularly burdened. 

Why target expenditures in support of religion for special disability? At least some supporters of the law say they want "no Saudi money for American mosques." 

Unless limited to exclude foreign nationals present legally in the United States, however, this law is unlikely to accomplish that goal. It would instead likely be held unconstitutional.

The law must satisfy strict scrutiny in order to survive. First, the law is not religion-neutral but restricts practices because of their religious motivation. This triggers strict scrutiny under free exercise doctrine. Second, the law restricts speech on the basis of its content. This triggers strict scrutiny under free speech doctrine.

To satisfy strict scrutiny, the government must demonstrate that the law is justified by a compelling interest and is narrowly tailored to advance that interest. "A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 543 (1993). 

Even if changing foreign countries' religious freedom laws were compelling, this sweeping restriction is one of the most religion- and speech-restrictive ways to accomplish that, not one narrowly tailored to changing the behavior of foreign governments. 

"Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2724 (2010). But this law is not narrowly tailored to that interest. It applies to all speech by covered foreign nationals that promotes religion, including for example, those seeking asylum from religious persecution in their home country. 

Given the evident constitutional problems with the Religious FIRE Act--and we haven't exhausted the theories for unconstitutionality yet, but don't worry, we won't now--one wonders whether Rep. Brat sought legal advice about the constitutionality of his bill before introducing it.

If not, perhaps the most charitable explanation is that as a federal legislator, he is aware that foreign nationals are subject to special speech prohibitions related to elections, and these have been upheld against First Amendment attack. In Bluman v. FEC (D.D.C. 2011), for example, a three-judge district court upheld the constitutionality of contribution and election-related expenditure prohibitions on foreign nationals other than lawful permanent residents. Plaintiffs' counsel advanced a powerful case for unconstitutionality in their jurisdictional statement, supported by impressive amicus briefs, but the Supreme Court summarily affirmed. This election-speech-specific ruling, however, is an exceptional carve-out from the general rule that resident aliens are protected by the Free Speech and Free Exercise Clauses. In supporting the judgment below, the government described plaintiffs' claim "that aliens in the United States have First Amendment rights" as an "unremarkable proposition."  The government instead rested, as did the district court, on cases permitting the exclusion of non-citizens from activities "intimately related to the processes of democratic self-government."

I should acknowledge before concluding that the judicial authority grounding the Free Exercise and Free Speech rights of non-citizens residing in the United States is not as clear and strong as I thought it would be. But there is some authority, and none the other way. Also, the rules against targeting governmental targeting of religion and religious speech for special disability are so deeply rooted that I find it difficult to believe the courts would sustain a prohibition that reaches as broadly as the Religious FIRE Act. 

I asked some law students who had not yet studied First Amendment doctrine whether they thought this law was constitutional or not. Their answers reveal more about why we protect speech and religion than the dry doctrinal analysis above. In essence, they said "This is the United States. Whatever other countries may do to restrict religion there, that's not what we do here."

I agree. This is not who we are. Let's hope the Religious FIRE Act burns out in committee.


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