Religious freedom issue likely to be linchpin of sanctuary trial defense

When 13 Salvadoreans perished in the Arizona desert in 1980, abandoned by a paid smuggler, it began to awaken the sympathies of Tucson rancher Jim Corbett to the plight of Salvadoreans fleeing to the US. By 1982 he had become a sort of smuggler himself. Around him grew a network of mostly religious people, from Mexico's southern border to Canada. Its purpose: to help Salvadoreans and Guatemalans find refuge from their war-torn countries.

``My response to a situation where people were being tortured and murdered was a primary one,'' says Mr. Corbett, a Quaker, ``whether it was a humanitarian response or religious or the two fused.''

``But the nature of [church] sanctuary,'' he says of the movement he helped to begin, ``is that its the work of a faith community. You can't do it as an individual.''

Now Corbett, along with 15 others, is facing federal charges for conspiring to smuggle aliens into the country and related counts. The crux of the defense in these cases will rest on the Constitution's guarantee of the right to the free practice of religion.

Whether or not federal Judge Earl Carroll permits this defense, the Sanctuary Movement has already pitted a substantial share of this nation's religious community, across denominational lines, against United States government policy.

The government -- wanting to control US borders, wanting to slow the influx of the hundreds of thousands annually who want to migrate here -- has strictly limited refugee status in this country to those who can show direct, targeted persecution in their homelands.

Sanctuary workers -- encountering Central Americans fleeing countries racked with brutal civil war (many of whom have lost members of their immediate families and fear for their lives) -- are following the traditional Judeo-Christian injunction to minister to those in need.

The closest historical parallel to the Sanctuary Movement, to observers inside and outside the movement, may be the pre-Civil War ``underground railroad,'' run largely by religious people, especially Quakers, to smuggle blacks out of slavery into Canada.

Then, as now, the growth of the underground railroad signals the presence of a significant group of otherwise law-abiding people with strong moral compunctions against government policy.

Although sanctuary activists have made a public affair of transporting and sheltering aliens -- the crimes they are charged with -- they do not see what they do as civil disobedience.

The aliens in question, in their view, qualify as refugees under the Refugee Act of 1980, United Nations protocols on refugees, and the Geneva Convention on the treatment of civilians during war. It is the Justice Department, they say, that is breaking these laws and treaties by deporting Salvadoreans and Guatemalans into dangerous situations.

This is the point the sanctuary movement is trying to make in order to stop the deportations. But it will probably not be central to their defense.

The line of defense emerging in the case more neatly pits church against state, that is, the government's interest in enforcing the law against smuggling and transporting aliens against the right to free practice of religion.

``That's the critical issue,'' says Bates Butler, the chief lawyer for some of the charged workers. ``Christians and Jews believe they have a duty to help people in need. We are going to show that these people are in need.''

The federal prosecutor in the case, assistant US Attorney Don Reno, has already moved for the judge to exclude any defense involving the motivations of the accused sanctuary workers, including religious motivations.

Three cases against sanctuary workers have been heard in court already, but none of those cases reached a high enough judiciary level to offer any legal precedents, says Mr. Butler.

Apart from the defense of those charged, says Ronald Garet, a law professor at the University of Southern California with a doctorate in religion, ``whether or not the issue finds legal articulation won't matter.'' Whatever course it takes, the case is likely to focus public debate on the Sanctuary Movement. ``This puts the spotlight on it . . . in a very moral way, because these notions of sanctuary are very powerful ones symbolically.''

Building a defense on freedom of religion is a tough strategy. ``In most cases, where religious practices run up against the law,'' says Prof. John Noonan of the University of California, Berkeley, School of Law, ``the religious practices go.''

Mr. Butler cites a 1970 Supreme Court decision exempting the Amish religious community in Wisconsin from compulsory public schooling. But more recent rulings by the same court have favored the government.

Yet, says Ignatius Bau, a San Francisco lawyer who has just written a book on the Sanctuary Movement, ``if there is any religious freedom that overrides government interest, then this is one of those instances.''

The government's only interest, he says, is in wanting the Central Americans out of the country. The sanctuary workers, on the other hand, have a religious conviction that they must save these peoples' lives.

Jim Corbett in Tucson says he has expected for three years the indictments against sanctuary leaders which finally came last month. ``The magnitude of the crackdown surprised me a little bit,'' he admits. But he adds, ``It's easy to exaggerate the costs to people in this country.''

One Salvadorean refugee worker in El Salvador recently disappeared, he says, and has not been heard from since. Another Lutheran clergyman who worked with refugees was tortured and murdered, according to Mr. Corbett, who has never been to El Salvador but makes frequent trips to Honduras and southern Mexico.

``That's the kind of price people pay in El Salvador for helping refugees. Here we will be put on trial and do a little prison time [although who knows?]. . . . But something's out of whack when we get too upset about what people go through to help refugees up here.''