Church Law and Tax 1989-11-01 Recent Developments Immigration Richard R. Hammar, J.D., LL.M., CPA •

Church Law and Tax 1989-11-01 Recent Developments


Can Immigration and Naturalization Service agents lawfully attend church services with hidden microphones for the sole purpose of tape recording the services in an attempt to determine whether or not the churches were violating immigration law? That was the issue before a federal appeals court in a recent case. In early 1984, the Immigration and Naturalization Service (INS) initiated an undercover investigation of the “sanctuary movement” (an effort by a loosely knit group of clergy and lay people to aid refugees from El Salvador and Guatemala). Several INS agents wearing “body bugs” (hidden microphones) infiltrated four Arizona churches (three Presbyterian and one Lutheran) without search warrants or even probable cause to believe that the surveillance of the churches would uncover evidence of criminal activity. The agents attended and secretly tape recorded several services and Sunday School classes. When this covert surveillance was later disclosed, the four churches sued the INS and the United States government, claiming that the government’s actions violated the church’s constitutional rights to freely exercise their religion and to be free from unreasonable searches and seizures. A trial court dismissed the lawsuit, and the churches appealed. The federal appeals court ruled that the churches could sue the government for violating their constitutional right to freely exercise their religion. The court noted that the churches had in fact suffered actual injury—”for example, they allege that as a result of the surveillance of worship services, members have withdrawn from active participation in the churches, a Bible study group has been canceled for lack of participation, clergy time has been diverted from regular pastoral duties, support for the churches has declined, and congregants have become reluctant to seek pastoral counseling and are less open in prayers and confession.” If the churches could prove these allegations, the court concluded, “they would have established that the surveillance of religious activity has directly interfered with the churches’ ability to carry out their religious mission.” The court rejected the government’s claim that its “sovereign immunity” prevented it from being sued. However, the court also rejected the churches’ claim that their constitutional right to be free from “unreasonable searches and seizures” had been violated by the INS agents’ conduct. The court acknowledged that the right to be free from unreasonable searches and seizures “protects reasonable expectations of privacy” but this principle does not apply to “church worship services open to the public.” The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989).

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