Late last month, the Texas Supreme Court issued its opinion in Paxton v. Annunciation House, the El Paso case discussed here a few months ago. To refresh your memory, Ken Paxton, the Texas Attorney General (and now candidate for the United States Senate) sought to shut down Annunciation House, a refugee assistance facility operated by the Catholic Diocese of El Paso, because it had the temerity to raise legal objections to the State’s highly invasive records requests, including an assertion that it comply “immediately.” The trial court dismissed the case for a variety of reasons, procedural and substantive. On May 30, however, the Texas Supreme Court ruled that the dismissal was premature, and sent the case back to the trial court for a full development of the evidence underlying the State’s claims. Most news outlets characterized this as a small victory for the State; the Court expressly reserved opinion on whether the State’s claims have any merit. On the other hand, Mr. Paxton characterized it as a “major victory” for “Texas, secure borders, and the rule of law,” suggesting that perhaps he hadn’t read the opinion. (We can forgive him, since it is 65 pages long and has no pictures.)

But then less than a week later, the United States Supreme Court issued its opinion in Catholic Charities Bureau, Inc. v. Wisconsin. Like Annunciation House, the Wisconsin case involved a corporate affiliate of the Catholic Church engaged in charitable social relief activities. The question there was whether the corporate affiliate qualified for a state exemption from unemployment taxes provided to religious organizations. Like Mr. Paxton in the El Paso case, the State of Wisconsin disputed that the corporation was involved in religious activities. (Mr. Paxton now pretends that his office didn’t say that, after his assistant AG got chastised by at least three members of the Texas Supreme Court for making the claim.) Specifically, Wisconsin claimed that the activities were not religious, even though the state admitted that they were religiously motivated, because they didn’t involve religious services, ceremonies, or education, they did not constitute proselytizing, and they were not restricted to Catholics (which, the Church pointed out, would have violated Catholic social teaching); nor was employment limited to Roman Catholics. A unanimous Supreme Court held that the corporation was entitled to exemption, because the question of whether to provide services to non-Catholics, or to use the activities to proselytize, is a theological question. There was information in the record that some Christian denominations require even non-ministerial employees to share the faith, while other Christian denominations, Muslims, Jews, and Hindus, offer both employment and benefits to non-adherents. Adopting Wisconsin’s reasoning would endanger the tax-exempt status of those faith confessions.

There is no doubt that the Wisconsin case will figure prominently in Annunciation House’s further briefing, and in the trial court’s ultimate ruling. The State of Texas’s position is not unfairly read to say that charities that restrict services to persons with immigration status are entitled to First Amendment protection, but that charities that provide services to all persons, regardless of status, do not. (The state has not said that, but it seems the effect of what the state is saying.) 

There are a number of reasons to hope that the State’s position gets overturned. There is the moral cost. Mr. Paxton’s press release says, “Annunciation House has flagrantly violated our laws by harboring illegal aliens and assisting them to enter further into our country.” Who is the “we” behind “our laws” and “our country?” By whose law is a person an “alien” or “illegal?” Does he mean enter “farther” into the United States, away from the geographical border? Or does he truly mean “further,” “to a greater extent?” (Becoming more enculturated into the United States – that would be a good thing, no?) 

This is a failure of seeing. Those would shut down someplace like Annunciation House are imagining, not seeing, what goes on there, and whom they serve. John Ruskin wrote “The greatest thing a human soul ever does in this world is to see something, and tell what it saw in a plain way. Hundreds of people can talk for one who can think, but thousands can think for one who can see. To see clearly is poetry, prophecy, and religion, — all in one.” The Annunciation House website offers what it calls a “Border Immersion Experience,’ the chance to visit (and stay at) the organization’s facilities in El Paso and Ciudad Juarez, talk to migrants, Border Patrol agents, and human rights activists, and learn what volunteers do daily. Perhaps Mr. Paxton and his staff attorneys should make a visit. It costs $90 a day.

The simplest objection is that the State’s position is just so bloody dumb. Mr. Paxton gets on his high horse claiming to protect the citizens of Texas from … something, it’s not clear what. In fact, what he’s protecting them from is prosperity. Basic clear headed economics, supported by study after study, demonstrate that liberal immigration policies are good for the economy. It’s been well demonstrated, for example, that multi-generational Britons benefitted economically from the UK’s welcoming of migrants. (The last time the state of Texas formally studied the question, in 2006, the result was the same: immigrants, even illegal immigrants, benefit the economy.)  There are both supply-side and demand-side reasons for this. Immigrants buy stuff, and greater demand benefits the economy. More importantly, immigrants bring human capital – brains and brawn, ingenuity and ambition – to their new country, and capital yields returns.  We’re all familiar with the statue of Lady Justice, blindfolded, with scales in one hand and a sword in the other. Less familiar is Aequitas Augusti, the personification of equity or fairness. Her image appears on the back of many Roman coins. She holds scales in one hand, but a cornucopia rather than a sword in the other. And she does not wear a blindfold. Equity, in other words, sees in detail rather than broad abstractions, and it yields prosperity, not punishment. We should try a little of that.

As an aside, it’s worth looking at Justice Thomas’s concurring opinion in the Wisconsin case. One of the bases of the Wisconsin Supreme Court’s opinion was that the Catholic Charities Bureau was separately incorporated, and so was not the “church,” and hence not a “religious organization.” Justice Thomas takes issue with that conclusion, saying that the corporate structure is irrelevant. Citing the “church autonomy doctrine,” Justice Thomas argues that the State should not, indeed cannot, take the corporate structure into account. Among the more interesting statement Justice Thomas makes in following this line of thought are:

• “The (church autonomy) doctrine forbids treating religious institutions as nothing more than the corporate entities that they form.” 
• “Under the church autonomy doctrine, religious institutions are a parallel authority to the State, not a creature of state law…And the State has no legitimate role in defining the structure of its polity.”
• “To conclude that a religious institution has no existence outside its corporate form ‘would be in effect to decide that our religious liberties [are] dependent on the will of the legislature, and not guaranteed by the constitution.’”
• “This Court … framed incorporation as a way to empower religious institutions, not to define them or alter their polity.”
• “In short, the corporation is made for the church, not the church for the corporation. Both the basic principles of church autonomy and the history of religious corporations establish that religious institutions are more than the corporate entities that they form. It follows that the government may not use such entities as a means of regulating the internal governance of religious institutions.” (Emphasis added).

The State of Texas is trying to do exactly what Justice Thomas says the State of Wisconsin cannot do; use corporate law to regulate the governance and policies of a religious institution. If the Attorney General wished to take the kind of invasive action against an individual, he would need a subpoena, and the individual would be able to assert Fifth Amendment rights against self-incrimination. (Corporations do not have Fifth Amendment rights.) So, instead, what he does is threaten to terminate Annunciation House’s corporate existence. But, the doctrine of church autonomy says, even if he succeeds in some technical action against the corporate structure, it doesn’t make the institution go away. In effect, Mr. Paxton wants to judicially execute Annunciation House, Inc. using state supervision of corporations, because his office does not have the authority under the Texas Constitution to prosecute crimes. Only local law enforcement could do that. Don’t hold your breath; the El Paso County Sheriff’s Department filed a friend of the court brief supporting Annunciation House. Good for them.