At Monday’s campaign rally in El Paso, Texas, President Trump proudly proclaimed that construction of his border wall was moving full steam ahead.
“We’ve actually started a big, big portion of the wall today at a very important location, and it’s going up pretty quickly over the next nine months,” Trump said, standing beneath an enormous American flag flanked by two banners that read “finish the wall.”
While Congress did appropriate $600 million last March for construction of 33 miles of new barriers in the Rio Grande Valley, La Lomita, a tiny one-room chapel owned by the Diocese of Brownsville, stands in the path of the proposed new section. To try to block it from being built, the diocese is using a legal argument that should be quite familiar to Trump’s vice president, Mike Pence.
“As we made pretty clear in our briefing filed on behalf of the diocese in court last week in McAllen, Texas, the diocese intends to assert its rights under the Religious Freedom Restoration Act to fight any building of the wall there,” said Mary McCord, a lawyer at Georgetown University Law School’s Institute for Constitutional Advocacy and Protection, who is representing the diocese.
“In other words, that act prohibits government actions that substantially burden the exercise of religion without the government establishing a compelling governmental interest and no other means of satisfying that interest,” McCord told Yahoo News.
The federal Religious Freedom Restoration Act, a bill introduced by New York Rep. Chuck Schumer (now the Senate Democratic leader) was signed into law by Bill Clinton in 1993. It was the basis of the Supreme Court’s ruling in Burwell v. Hobby Lobby that a corporation, following the religious beliefs of its owners, can deny employees health benefits for contraception.
After the Supreme Court ruled that RFRA did not apply to individual states, some states passed their own versions.
As governor of Indiana, Pence signed the state’s RFRA bill into law in 2015 over objections from those who said it effectively legalized discrimination against gays and lesbians. A massive boycott of the state ensued, leading Indiana lawmakers to add an amendment to protect LGBTQ residents.
Now, that same legal framework could thwart Trump’s plans in Texas for the swift construction of further miles of border wall, even though the section in question has been approved by Congress.
U.S. Customs and Border Protection said in an email that a contract to build “approximately six miles” of a border wall system along the Rio Grande Valley had been awarded in October and that construction was slated to begin this month.
The project “includes the construction and installation of tactical infrastructure including a reinforced concrete levee wall to the height of the existing levee, 18 feet tall steel bollards installed on top of the concrete wall, and vegetation removal along a 150-foot enforcement zone throughout the approximately six miles of levee wall system,” said a statement from Customs and Border Protection.
Based on the government’s plans, McCord said the wall’s design would “burden free exercise of religion” and “would be a physical barrier between those who seek to worship at the chapel, which dates back to the 1800s.”
The church is on the U.S. side of the border, a few hundred feet from the Rio Grande. It serves worshipers from both countries.
If the church doesn’t voluntarily sell the land where the chapel stands, the Trump administration would need to take it by eminent domain, a legal principle that allows governments to seize property, with compensation, for public purposes.
A judge ruled last week that the government could conduct a survey on the property for future construction, despite objections from Bishop Daniel E. Flores.
“Such a structure would limit the freedom of the church to exercise her mission in the Rio Grande Valley, and would in fact be a sign contrary to the church’s mission,” Flores said in a statement.
The Catholic Church is by no means the only stakeholder to object to the new section of wall. Numerous landholders fear their properties might be taken by eminent domain, including the National Butterfly Center a nature preserve in Mission, Texas, which asked a federal judge Monday to block new wall construction.
McCord argues that the impact of erecting a wall on La Lomita’s property would be severe for the community.
“There are people there every day who engage in prayer. There are services held there,” McCord said. “There’s been a novena going on for the last nine weeks to pray for no wall. There are palm Sunday celebrations, baptisms, etc. It’s in use.”
While McCord hopes that Congress will “prohibit use of previously appropriated funds for construction of a wall,” the case seems far from decided.
“If the government persists in its desire to take the property at La Lomita for the building of the wall, that will have to go through litigation,” McCord says.
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