Is it illegal to discriminate against refugees or immigrants based on their religion? If you live in the U.S, or you keep up with U.S politics, you've probably heard how state governors aren't allowing Syrian refugees into their states, and some politicians only want to allow Christan refugees into the U.S. This led me to wonder, is it legal to deny a refugee, or immigrant based on their religion?
tl;dr My assumption: the U.S. government is considering whether to accept refugees and immigrants (given your Syria comment). The background section talks about State attempts to restrict entry. The answer is nuanced since there are different standards for an entrance decision than there are for someone who is already in the U.S. This is because foreign nationals in their home nations aren't "persons within the jurisdiction of the United States," and so laws like the Civil Rights Act only apply in spirit. What does that mean? We wouldn't expect to see the federal government discriminate based on religion, but we might expect to see decisions made about groups that incidentally share an common religion. This is because the federal government has wide latitude when it comes to alienage---which is just a formal name for policies related to non-citizens. While religion is afforded a high degree of protection, the federal government's alienage policies are governed by the lowest level of judicial scrutiny. This implies a practical challenge: things like religion and national origin can be very difficult to disentangle from questions that pertain to the alienage category. For example, a policy might restrict some group's entry "because of" a particular alienage reason and "in spite of" the fact that most of the affected people happen to share a common religion. Background The Equal Protection Clause U.S. Const. Am. XIV § 1 prohibits States from denying any person within its jurisdiction "equal protection of the laws." The Clause is often applied to the federal government as well, via the Due Process Clause U.S. Const. Am. V. See, e.g. Bolling v. Sharpe, 347 U.S. 497 (1954). In relation to the clause, laws are reviewed for their constitutionality using either strict, intermediate, or rational basis scrutiny. Strict scrutiny would mean that in order to distinguish based on a particular trait, the government has to have a compelling, narrowly tailored interest, and no less restrictive alternative available. Rational basis just means the government's interest is subject to a lower level of scrutiny (e.g. benefits exceed costs, or don't let in felons). Things like, race, religion, national origin, and some forms of alienage are suspect classes that merit strict scrutiny. This bit about alienage is important. As we'd expect from the above, when States enact alienage statutes, they're subject to strict scrutiny, and when those statues cross the line, the courts have found that State attempts to restrict resident or non-resident aliens encroach upon the federal government's exclusive control over entrance of aliens. Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971). In other words, the federal government, not the States, decides whether various "aliens" are admitted. Note: State scrutiny levels when dealing with undocumented immigrants may be context specific. See, e.g. Plyler v. Doe, 457 U.S. 202 (1982) (children and education). The federal government's authority over immigration is further solidified by the Supremacy Clause of the U.S. Const. Article VI. See Mathews v. Diaz, 426 U.S. 67 (1967). As such, the courts have applied rational basis scrutiny to the federal government's immigration policy. One reason alienage is interesting is that it tends to encompass things like national origin and religion. This doesn't imply the federal government makes its decisions on the basis of religion. In fact, it'd be hard to make an argument that they do. However, since the categories can be so closely entwined, many scholars have argued for a change in standard. Edit In hindsight, this topic seems quite forward looking. A couple weeks after the OP's question a U.S. presidential candidate (Donald Trump) came out in favor of a ban on entry into the U.S. by Muslims. That led to a flurry of activity, and to this insightful blog post by Professor E. Posner.
In Europe (as defined above) it does not appear that any country allows an asylum claim based solely on the fact of being subject to obligatory military service. However, asylum claims can be made based on obligatory military service plus something surrounding the circumstances of military service. For example, during the Vietnam war, Sweden granted asylum to a number of Americans who either deserted from the military or who wanted to avoid being drafted, and asylum claims are granted for Eritrean refugees escaping the policy of indefinite conscription. The general policy as articulated by the UNHCR is that asylum claims should be considered when there is persecution for objecting to military service for reasons of conscience, if applicable military acts violate international law, if conditions of service constitute inhumane treatment, if conscription is carried out by a non-state agency and the government provides no protection, or recruitment of children. None of these conditions exist in the Swedish or Norwegian military, so a Norwegian cannot avoid military service by applying to Sweden for asylum. In Shepherd v. Germany, plaintiff, a US soldier serving in Iraq, deserted and applied to Germany for asylum, believing the war to be illegal. This is relevant because EU law allows asylum claims in cases of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2) The court (CJEU) ruled that the plaintiff was not subject to persecution so the case was returned to the German courts, but in that ruling the CJEU provides extensive legal guidance on the connection between the "persecution" prong of an asylum claim, and military service under EU law.
The EEOC states that national original discrimination in employment is illegal, which is supported by 28 CFR Part 44 (discriminate means &quot;the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility&quot;). See also Title VII of the Civil Rights Act of 1964: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. codified at 42 USC 2000e–2. The internet widely advises that asking such questions is illegal. The EEOC has a more nuanced view of the matter as articulated here: they say We recommend that you avoid asking applicants about personal characteristics that are protected by law, such as race, color, religion, sex, national origin or age. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the EEOC. If you do not have this information when you decide who to hire, it may be easier for you to defend your business against a hiring discrimination complaint. Before reaching a conclusion, we should check what an employee is (42 USC § 2000e(f)), namely: an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. This just tells us that in writing the law, Congress left it somewhat open what an &quot;employee&quot; is. An Amazon seller is, on the face of it, not an employee of Amazon, instead, a seller is an independent contractor. Of course that is a legal question that can't just be decided superficially, see for example California's AB5 (but even under that law, a seller is not an employee). As articulated by SSA The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Under the common-law test, the employer has the right to tell the employee what to do, how, when, and where to do the job If the Dept. of Labor or the IRS determine that you are (would be) an employee, then this is illegal discrimination, otherwise it is not. Since you are not paid a wage, the prospects for being deemed an employee are extremely dim. The EEOC gives this guidance on the distinction, with a very long list of examples which in general support the position that a vendor is an independent contractor and not an employee.
According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police.
Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower.
The US does give deference to organizations that claim to be &quot;religious&quot;, for example the Religious Freedom Restoration Act, which &quot;Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.&quot; Or the Burwell v Hobby Lobby case based on that law &quot;allowing privately held for-profit corporations to be exempt from a regulation its owners religiously object to, if there is a less restrictive means of furthering the law's interest&quot;, or Scientology being allowed to not follow minimum wage, or how Title VII of the Civil Rights Act states &quot;This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation&quot;. The greater the nexus between the conduct and the religious nature of the organization, the more deference is given. For instance, roles classified as &quot;ministry&quot;, such as a priest, will be given more leeway than a more secular role such as a construction worker who happens to be building a church. BTW, as far 501(c)(3) is concerned, there is deference in that classification, as religious organizations do not have the same burden of establishing charitable purpose that secular organizations do. Also, having your nonprofit be a church would mean that Immortals wouldn't be able to fight on the grounds.
I understand that you are wondering why illegal immigrants are not more often deported by the authorities. This answer has grown a bit out of proportion because I also try to explore the general refugee situation. That seems appropriate because the large number of migrants makes the question of deportation more pressing. We would not be very concerned about just a handful. Numbers First of all, while in 2015 about a million migrants entered Germany, only 282,000 asylum requests were decided; a lot of them probably dated from 2014 (the asylum seekers often needed weeks to even file their request due to adminstrative overload). Of those 282,000, 90,000 were rejected. The others have been granted asylum or refugee status (there is apparently some distinction). This means that the vast majority of ("true" or "alleged") refugees who came to Germany in 2015 are waiting for their request to be processed. Legal And Police Situation Did many of those 90,000 stay in the country? I don't know. Possibly. Some may still be tolerated ("geduldet"), i.e. the deportation may have been postponed according to par. 60a AufenthlatsG. The remaining ones are indeed obligated to leave the country. They are informed of the decision and have to leave within a period of time between 7 and 30 days. If they don't leave, they will be subject to criminal prosecution because they violate par. 95 of the Aufenthaltsgesetz. Of course it's usually not known to the authorities that somebody is still &mdash; illegally &mdash; in the country. Short of raids or coincidental run-ins with the police, e.g. because of traffic violations, illegal immigrants fly under the radar here like in all other countries (I suppose you are aware of the current discussion in the U.S.). I assume that illegal immigrants are not high on the priority list of the police, given that the cost/benefit ratio of actively searching them is probably quite bad; criminals solely due to status violations don't do much damage as such, compared to other criminals. One must assume though that some of the illegal immigrants will steal or deal drugs for a living, since they cannot officially work or receive subsidies; that exposes them to the authorities as much as other criminals, making it more likely to be caught. Deportation So the question which remains is what happens to the relatively small portion of migrants who are here illegally and who are found out. It seems easy: Deport them! The law provides the option to deport them without notice (because they would flee upon receiving a notice). Deportation to the EU Border State Migrants coming through other European Union countries should be processed at the port of entry, according to the Dublin Regulation. That was how Germany, with no external borders, cowardly used to shield itself from migrants. There is some legal debate whether an asylum seeker who against all Dublin Regulations reaches Germany (or even just the German border) can legally be turned away. A legal scholar in an interview in the current Spiegel magazine claims that every request must, according to European law, be at least checked first before the asylum seeker could be sent back to the port of entry. The big problem here is that the current crisis overwhelmed the EU border countries, in particular the already struggling Greece (which has only 11 million citizens). German courts have forbidden to send asylum seekers back to Greece and a few Balcan countries because of their dysfunctional asylum processing. Apart from the legal situation everybody just acknowledges that the Dublin Regulations were not meant to deal with the current number of refugees. Therefore, sending refugees back to Greece is currently not an option. That means asylum seekers will have their requests processed in Germany for now, a procedure which takes many months. There are no new numbers; mid-2015 the time was already about 5 months. Now it seems that you need already months to just file the request. The administration is hopelessly understaffed. New clerks need substantial legal and adminsitrative education so that it takes months or years from the top-level budget decision for new positions to when they are put to work. Deportation to Their Home Country Back to the question where to deport illegal migrants to. For citizens of safe countries, that seems obvious. (As discussed, migrants from unsafe countries will be granted refugee status, or they will at least be temporarily tolerated.) But the migrants often destroy their papers and simply refuse to tell where they come from. Some countries flatly refuse to provide replacement documents for their own citizens; they also refuse to take anybody without papers back, effectively making it impossible to deport migrants to them who do not cooperate. That seems to be the case for some North African countries (cf. this German Spiegel article). The German government will probably have to pay the countries in exchange for them to take their citizens back. Of course, deportations happen, and they are not pretty. Looking a little closer, a multitude of practical and legal problems emerge. First there is the fairly extreme effort to charter a flight and provide a couple police men, a doctor etc. to accompany the person. The migrants are frequently desperate, some hurt themselves to a degree which makes it impossible to transport them. If they are too desperate or violent, the pilots may not fly for safety or ethical concerns. Other passengers complain on regular flights. Doctors refuse to cooperate, or testify suicidal tendencies. Migrants have suffocated in police custody during a deportation attempt. Conclusion Legal Situation I cannot see a wide-spread disregard for the law by the German government. If anybody is violating European law, it's Greece and possibly some Balkan states on the migration land route. But in all reality these smaller countries are totally overwhelmed, so the situation is more a factual impossibility to obey the law, which cannot be helped as long as the facts are what they are. Note that the Dublin Regulations do not forbid Germany to welcome immigrants or accept requests for asylum. On the contrary: according to the legal scholar in the Spiegel magazine Germany has an obligation to at least minimally process asylum requests, once the asylum seekers have reached the border. (And since sending them back is not an option, the request is processed in Germany entirely.) There is no violation of the law there. Practical Aspects of Deportation; Alternatives At the end of the day forced deportations are an expensive, undignified, violent affair; I would simply consider it unsuitable for mass deportations. The authorities quickly reach the limit of what is doable with the current budget, personnel, and with respect to human rights &mdash; there is a legal and ethical limit to applicable violence against basically peaceful individuals. (I assume that Donald Trump has no idea what he is talking about when it gets to the ground work. "He has a big mouth and nothing behind it", as we say here.) Bottom line: If somebody doesn't want to leave, there is little you can do in a free country. I do not think that the government has deliberately decided to ignore the law; it's rather that the law is hard to enforce. That happens a lot, if you think of it. If one is adamant at making migrants leave, the only mass solution I can envision is to make it attractive to leave. I can imagine that 10,000 or 20,000 Euros per person is a sufficient incentive for migrants who did not flee from acute danger. I also think that it would be a good deal, long-term. Of course one will have to ensure that the migrants indeed leave, and do not come back too soon, or nothing would be gained. One could perhaps pay the premium through the governments of their home country, possibly in the form of real estate or a pension. That would combine an incentive for the home countries with one for their citizens. This economical calculus would only work if the home countries stayed stable for an extended period of time (or the returned migrants would have to migrate again, this time with a good reason). It must be the goal of the European countries to aim at stability in those regions. But that is the goal anyway, I hope; its importance was fairly prominent in recent months.
The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion. The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins. Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post." The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer." The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class. The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar.