Brief of scholars of religious liberty law in Federal Prosecution of Caitlin Persis Deighan, et al.; Activists who left water and food in the desert for migrants

Franke, Katherine M.

On November 13th, Katherine Franke submitted amicus briefs on behalf of seven scholars of religious liberty law in two cases in which the federal government is prosecuting members of the Tucson-based group No More Deaths/No Más Muertes. The briefs provide guidance to the federal court on how to examine the activists’ claim that their criminal prosecution by the U.S. Department of Justice substantially burdens their sincere religious belief in the sanctity of human life and that they must come to the aiding people in dire distress. The briefs support neither party in either of the cases but rather seeks to provide the court with the proper framework within which to consider the defendants’ motions to dismiss grounded in the Religious Freedom Restoration Act (RFRA).

“This case raises important questions regarding the use of RFRA as a defense in a criminal prosecution,” said Professor Katherine Franke, the principal author of the brief. “As legal scholars of religious liberty it is our concern that RFRA is interpreted consistently across contexts where sincerely held religious beliefs are substantially burdened by government action. We note in the brief that the Justice Department has taken a position in this case that is much less protective of religious liberty than it has in cases where the underlying issues are more aligned with the administration’s political agenda,” continued Franke.

“Ironically, the arguments made by attorneys working for the Justice Department provide greater protection to bighorn sheep in Southern Arizona than to human beings, whether they be migrants at risk of death or people of faith coming to their aid,” noted Professor Franke.


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May 6, 2019