The U.S. bishops remain divided about many issues, but immigration is not, for the most part, one of them. Their special message against mass deportations passed overwhelmingly last November, and bishops across the ideological spectrum have publicly expressed concern about immigration enforcement that has crossed moral and legal lines. But Catholics on the right don’t always agree with their religious leaders on this issue, as evidenced by the reaction to a recent amicus brief filed by the bishops in the birthright-citizenship case currently before the U.S. Supreme Court.
In their “friend of the court” brief, the bishops support the current practice of conferring citizenship on all people born in the United States, a practice threatened by a Trump executive order that would deny citizenship to children whose parents have insufficient or temporary legal status. The case, Trump v. Barbara, will consider the Fourteenth Amendment to the Constitution, which guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” That amendment was ratified after the Civil War to include formerly enslaved persons.
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The brief, filed February 26 on behalf of the bishops’ conference and the Catholic Legal Immigration Network Inc., or CLINIC, includes legal arguments but also cites Catholic social teaching to claim that ending birthright citizenship would harm families and leave children stateless and vulnerable to trafficking and exploitation. “The principle of citizenship by birth is firmly rooted in Western legal tradition, enshrined in the Fourteenth Amendment, and reaffirmed by this Court’s precedent,” the bishops said. “It is equally grounded in Church teaching, which affirms the inherent dignity of every human person, especially the innocent child.”
The bishops’ brief is one of seventy filed so far in this case, a majority of which support the respondents, three families suing under pseudonyms. A group of faith-based groups, including fourteen women’s religious orders, Hope Border Institute, and NETWORK Lobby for Catholic Social Justice, also filed a brief in support of birthright citizenship on the same day as the bishops. The Supreme Court expects to begin hearing oral arguments on the case on April 1.
Negative reaction to the bishops’ twenty-nine-page brief was swift, and shots were fired from a number of directions, including ad hominem attacks on the attorney—Matthew Martens, a Baptist—and the law firm—WilmerHale, which has supported same-sex marriage and abortion rights—that filed the brief. One commentator speculated that the brief might be “revenge” for the Trump administration’s funding cuts for the Church’s migration and refugee services. Others called it “incoherent” or “virtue signalling.”
One of critics’ more serious issues with the brief centers on whether human dignity, as defined by the Church, includes the right to birthright citizenship. This could be debatable, as many more homogeneous countries do not recognize the jus soli (Latin for “right of soil”) principle on which birthright citizenship is based. The bishops’ main concern seems to be that removing birthright citizenship in the United States would endanger millions of then-stateless children. While their argument is grounded in biblical injunctions to “love your neighbor” and “welcome the stranger,” it is primarily a practical one, citing United Nations documents that describe how stateless people cannot get jobs, go to school, see a doctor, open a bank account, get married, or even receive a death certificate. They are also often fearful of practicing their religion. As providers of education, health care and other services to migrants, the Catholic Church is in a unique position to comment on the potential effects of this decision.
Yet the bishops’ position was so misinterpreted by critics that the conference sent an internal memo to clarify that their argument did not go farther than some said it did. The bishops did not deny that states have the authority to set standards for citizenship, nor did they say that citizenship is a natural, God-given right (though they did seem to argue that natural law makes the family the foundational unit of society—and that removing birthright citizenship would threaten family unity). What the brief did say is that in this situation, in this country, and given the current laws and precedents, birthright citizenship best protects innocent children from the fate of statelessness, which in reality denies them participation in society. I would have argued, however, that this falls under the Catholic social teaching principle of “call to family, community and participation,” which says people have a right and a duty to participate in society, rather than the principle of subsidiarity, which the brief cites.
But some critics questioned whether the bishops should use Catholic social teaching or moral arguments in a legal brief at all. This idea of that amicus brief should stick to legal arguments is preposterous. Amicus briefs regularly present the ethical and practical consequences of how a ruling will affect groups of people not specifically named in the lawsuit. The U.S. bishops’ conference frequently files amicus briefs on topics ranging from abortion and the death penalty to assisted suicide and various issues related to marriage, family, and sexuality. While also making legal arguments, those briefs—and the issues they consider—are clearly grounded in Catholic moral teaching. That none of the conservative critics bothered to complain about the insertion of Catholic social thought into other amicus briefs reveals the ideological motive behind their concerns with the citizenship one.
The bishops’ birthright citizenship brief spends only three pages on the legal arguments, I suspect because those arguments have been made elsewhere. What the bishops and CLINIC can add to the debate is their view as moral leaders of a Church of immigrants and an organization whose mission includes serving migrants. And, of course, by its very presence, an amicus brief by the leaders of the largest religious organization in the United States signals the importance of the case.
Opponents of birthright citizenship argue that it incentivizes illegal migration, luring women to the United States for the sole purpose of having so-called “anchor babies,” who can then provide citizenship status for their parents. A child’s citizenship, however, does not improve a parent’s immigration status, and that child cannot seek to sponsor any family to the United States until he or she turns twenty-one. Moreover, migrants repeatedly report they would prefer to stay in their home countries, if it were not for violence or severe economic conditions.
It is notable that the Fourteenth Amendment that guarantees birthright citizenship sought to undo another unjust attempt to deny citizenship to a class of human beings on U.S. soil: the Dred Scott decision. Once again, our country is intent on marginalizing another group of people—and again, race seems to be part of the criteria. Given the stakes, it is not only appropriate but urgent that the Church and its leaders use their voices and authority to bring morality and Catholic social teaching into this debate.
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