Sanctuary! Laws and Lore

I’ll bet when you glanced at my title, you thought of Victor Hugo’s hunchback, Quasimodo, standing in a portico of Notre dame de Paris, holding aloft the unconscious maiden he has just rescued from the gallows and bellowing, “SANCTUAREEEEE!” 

It’s a thrilling cry that reverberates down the ages.  But it’s much older than Hugo’s 19^th century novel.

When the legendarily wise young Solomon became king of Israel on His father David’s death, two men who feared for their lives took refuge in the tabernacle, grasping the horns affixed to the corners of the altar at which sacrificial offerings were conducted.  It worked well for   Adonijah, Solomon’s older brother who had rebelled against him; Solomon dismissed him to his home, charging homy o show himself a “worthy man”. (1 Kings 1: 50-53.  It didn’t avail Joab, David’s lieutenant whose zeal had exceeded  the murders the king deemed expedient .  When Solomon’s men expressed reluctance to shed Joab’s blood while he  was clinging to the horns of the altar, the imperious young ephebe succinctly decreed that he die right there: “Go, fall upon him.” (1 Kings 2:28-31) 

Ecclesiastical sanctuary is an  arcane body of law and custom about which everybody seems to have a little knowledge.  It had been  part of the law of England since 693.  After the Norman Conquest William the Conqueror further defined it.  Not all churches were authorized to extend sanctuary.  A fugitive from justice had to explicitly request protection from the church official in charge of a church so empowered.   It wasn’t indefinite: the fugitives could only remain in the protected space for 40 days, which might give them time to obtain a pardon or work things out with their accusers. After that time, if  they still wanted to claim the church’s protection, they had to abjure English citizenship, relinquish all they owned, and walk barefoot to the nearest port to take ship to some foreign land forever. They  would be escorted  and fed and housed by church officials in each parish he had to traverse.

 But, as Solomon had done, monarchs could tweak the rules: Henry VIII first required (1524)  that any “abjurers” be branded with an “A” in the brawn of the thumb of the right hand, and later, worried  that England was losing too many skilled  warriors and craftsmen to enemy nations,  decreed  that the abjurers’  “sanctuary” become a de facto life imprisonment. 

It is surprising that the concept of ecclesiastical sanctuary survived at all when Henry VIII declared himself head of the church as well of the state of England.(1536).   But it did live on there for another century: James I abolished it in nearly all instances in 1624, and William III finished it off for good in 1697. 

  Ecclesiastical sanctuary never existed in American law after we became a  country—

Until now. 

But before we explore the resurrection of the ecclesiastical sanctuary in modern times, let’s consider the related concept of “scholastic sanctuary”.  In Phillip Pullman’s The Golden Compass, it is a thrilling moment when  Lord Asriel delivers his  baby daughter into the arms of the dean of Jordan College,  Oxford, intoning the mandatory invocation of scholastic sanctuary: “legio de refugio scholasticorium”.. It’s a good read, but the story takes place in an alternate universe, and here on this planet , in our universe, there is not and never was such a thing as scholastic sanctuary.

Until now. 

Rumours of the death of ecclesiastical sanctuary  have been greatly exaggerated  If not,  why did we have a “sanctuary movement” as long ago as the 1980s , during which churches sheltered illegal entrants they considered “refugees” from the ongoing Central American wars? It has always been illegal to shelter any kind of lawbreaker:  churches in our country have exactly the same rights as other private landowners: they do not have to admit law enforcement until a warrant is obtained; then, they must comply.  And yes, harboring someone in this country illegally is a federal crime.  8 USC 1324(a)(10(A)(iii).  But although there were some convictions for this conduct the sentences were negligible, and public opinion gradually turned in favor of the “sanctuary”idea, resulting in the creation of the “Temporary  Protected Status” category in 1990. And, as with other momentous American social movements (temperance, abolition) it was the churches which led the way. 

In 2018, four illegal immigrant families sheltered in a Methodist church in Philadelphia. This wasn’t a secret; the church was proud of it and publicized it.    (At that time DHS was directed in an official memo  to avoid “enforcement actions”, that  is, arrests, in “sensitive” locations like churches and schools.   In Arizona a woman lived in ecclesiastical sanctuary for four years. 

On the federal level,   the First Amendment protects free exercise of religion, but the founders were laconic compared to the drafters of our Pennsylvania Constitution.  Art 1 sec 3 of the Pa Constitution provides in pertinent part: 

“..no human authority can, in any case whatsoever, control or interfere with the rights of conscience..” 

The Religious Freedom Restoration Act of 1993  42 USC 2000bb (later declared unconstitutional las applied to the states in City of Boerne v. Flores, 1992), provides that the Federal Government may not “substantially burden” exercise of religion except in furtherance of a “compelling governmental interest” and by the least restrictive means, upon which issues the government has the burden of going forward and of evidence.  In the Commonwealth, we have 71 P.S. 2401 et seq, the Religious Freedom Protection Act (2002) : all state and local laws, ordinances and regulations must avoid substantially avoid burdening the free exercise of religion without compelling justification.  “Substantially burden” includes action which “ significantly constrains or inhibits conduct…mandated by a person’s sincerely held religious beliefs” 71 P. S. 2403. Under this statute, and Amendment 1 to the US constitution, it was held  in Fulton v. Philadelphia, 593 U.S. 522, 141 S. Ct 1868 (2021), that a foster care agency could not be compelled to certify same sex couples as foster parents.  The  gravamen of these precepts is freedom of conscience, rather than freedom inherent in entering a particular piece of property.  

Of course, to draw down a lightning bolt brilliantly illuminating the inviolability of the sacrosanct space. , you can’t top committing a crime IN the sanctuary, like Henry III’s knights did in murdering Thomas Beckett in Canterbury Cathedral (1170) and Robert the Bruce did by stabbing John Comyn at the very  altar in Greyfriars Church ( 1306). But what happens if some arguably peace-breaching conduct occurs in an ecclesiastical setting in our Commonwealth? 

In Com. v. Coniker, (Pa Super 2023( 290 A. 3d 725, defendant was charged with and convicted of disorderly conduct: recklessly creating a risk of public inconvenience, annoyance or alarm, by an act which serves no legitimate purpose of the actor. (18 Pa CS 5503) for  attempting to remove a wafer of the consecrated host  from a church.

 The priest saw him spit the wafer into his hand and head for the door, and called out to the congregation to stop him.  The congregation en masse surrounded the defendant,  backing  him up against a wall,  and someone called police.  

The police officer stated that he was arresting Coniker for “theft of the host”, but of course there is no such crime, nor was a theft involved, since Coniker had been given the wafer.   

You will find no mention of the Pa RFPA , the Pa Constitution, nor the First Amendment in the opinion; the court struggled mightily to avoid any  such.  It held that Coniker had created a hazardous condition with a likelihood that people would be injured, and rejected his claim that he, as actor,  had a legitimate purpose of his own ( he believed God had entered into the consecrated host, and he wanted to take God with him to a court hearing he was facing that afternoon.) The court seems to be saying that his action could NOT have been “legitimate” because he knew that,  under canon  law,  he could be excommunicated for doing so. 

If I’d  been representing him, I’da made a run for the Pa Constitution , Art 1, sec 3: a “human authority”  was “controlling or interfering with the rights of conscience”. The defendant wanted to literally “walk with God” as indeed the church exhorts the faithful  to do. 

Further, consider the facts of the case had it taken place in a retail store or a restaurant: a man entered the place, open to the public. He was given a small cookie, he knew  that everybody else was eating theirs right away, but he decided to take his outside; maybe to give it to someone he had seen outside begging on the street,  or have it tested for allergens.. The manager, for no cognizable legal reason, shouted out “Stop that man!” and the other customers forcibly detained him. 

if you’re inclined to support the court’s decision in Coniker because of the “context” by which I reckon the court means, like, “Come ON, he knew he was in a church!” consider that  the first Amendment requires complete neutrality, not only  among/between religions, but between any religion and NO religion. McCreary County, Ky  v.ACLU, 565 U. S. 844, 125 S. Ct 2722 (2005).  

In the retail establishment  scenario, who is guilty of creating a risk pf public alarm and inconvenience? I’d argue that it was the manager, and secondarily the customers who forcibly detained the defendant at the manager’s panic-inducing command, probably  falsely imprisoning him.  The case lends itself to the conclusion that  ecclesiastical sanctuary is still, or  again, “ the law which dare not speak its name”, although in Coniker, it was   violation of the sanctuary as sacred space  which was at issue, rather than invocation of its protection. 

A case which is connected to  our Commonwealth via our Quaker history is Philadelphia Yearly Meeting of the Religious Society of Friends et al v. US Department of Homeland Security and Kristi Noem, USDC Maryland, __ F. Supp 3d___, 2025 WL 585678 . On February 24, 2025, Judge Theodore D. Chang issued a 59 page opinion, granting a preliminary injunction  , thus enjoining enforcement of the Trump Administration’s memorandae which had directed, with regard to schools and places of worship, ICE officials need no longer seek prior approval from their agency’s headquarters before making arrests  ,leaving it to the officers’ discretion and “common sense”.  These memorandae rescinded a prior memorandum by then-Secretary Majorkas, which had generally  required  such approval in those “sensitive locations”, except in enumerated listed exigent circumstance. Judge Chang’s decision effectively reinstated the Majorkas memorandum with regard  to the parties before him.   

 Judge Chang held that the  plaintiffs ,which included Quaker meetings from 5 states in addition to Pa, the Cooperative Baptist Fellowship, and a Sikh temple in California,  had demonstrated by testimony that due to their particular creeds, beliefs and practices, the removal of restrictions upon immigration enforcement actions in their places of worship might be ultimately found to have a chilling effect on their First Amendment rights to freedom of expression and freedom of religion, and to meet the “substantial burden” test under RFRA.    He did at least decline to issue a “nationwide injunction” which in this writer’s opinion is an oxymoronic term, since equity traditionally exercises authority  in personam,  upon those parties over which that court has obtained jurisdiction.  

It appears that Judge Chang was primarily “rescinding” was the tone of the press release announcing the 2025 policy, which had stated   “Criminals will no longer be able to hide in America’s schools and churches to avoid arrest”.  By those words the  administration had thrown down the gauntlet at the feet of the ecclesiastical  sanctuary doctrine—and this federal district court snatched it up.  Whether  DHS will seek an immediate appeal of the Preliminary injunction or will continue  to defend the case on the merits remains to be seen.  But, as with the “practice guide” discussed below, the very existence of this opinion indicates the continued viability of sanctuary doctrines.  

And what of “scholastic sanctuary”? 

  As with churches, private landowners of educational institutions have the right   to refuse to  admit law enforcement unless they present a warrant.  In the case of academic institutions, the issue is clouded by the fact that educational institutions  receive taxpayer-funded government support. 

In Pennsylvania, there is no statute directly addressing whether academic authorities must cooperate directly with ICE, nor criminalizing non-compliance. In sum, owners of campuses have no greater rights than other private landowners.  There are no cases where academic officials have been charged with illegally harboring unlawful entrants mor other lawbreakers.  There is a statute and regulations addressing the role of “campus police” at state-aided or state-related colleges or universities, , 71 P. S. 626.1 , but they do not directly address the topic. 

The National Immigration Law Center has published a “practice advisory” entitled The Legal Authority for “Sanctuary” School Policies, last updated August 2018. Of course, “sanctuary” is narrowly defined here,  the only law violation with which the guide is concerned is illegal entry into the country.    In support of the sanctuary policy for K-12, the article cites the in loco parentis principle, and  for legal authority, Plyler v. Doe, 457 U. S. 202 (1982)                         which protects students’ personal information, rather than students themselves,  from any enforcement activities.      The Answers to the FAQs at the end of the guide make it clear that a school may not with impunity direct students to hide from immigration enforcement, or establish a “safe zone” to which the school may refuse  entry to  officials armed with a warrant.  This “practice guide” is aspirational and might more accurately be titled, “Towards a policy of Scholastic sanctuary”.  Its very existence, however, demonstrates that the idea is gaining, or re-gaining, attention, at least concerning immigration law. 

As of this writing, much attention is focused on the case of Mahmoud Khalil, a thirty year old green card holder who was involved in the building takeover and academic pro-Palestinian disturbances at Columbia University in Spring 2024, whom President Trump is seeking to deport.  He was taken into custody in university owned-housing and has been widely referred to as a “student” . Whether or not he can be deported will be determined by the intricacies of federal law concerning green-card holders, but  for purposes of my topic here, what is interesting is the chants and placards used by people protesting his deportation: “Hands off our students!” and “Fight Nazis, not students!”  And Khalil himself stresses his student status  and talks about the “student movement” in support of Palestinian rights. This indicates an  underlying assumption  that college and university campuses are , or ought to be  a  zone beyond or above the reach the secular authorities.  

The doctrine of scholastic sanctuary may be an artefact of the concept of the “ivory tower”.  That phrase is usually employed disparagingly, to indicate that scholars are ignorant of and insulated from mundane practical concerns, but perhaps there has always been an underlying unspoken consensus  that this is as it should be; scholars, like saints, are a law unto themselves.      

Yet another concept is municipal sanctuary.  There is  a bill before our state legislature which would ban” sanctuary cities” in Pennsylvania  by expressly providing that federal immigration law pre-empts any municipal ordinances or policies,  and mandating cooperation with federal and state law enforcement officials. (HB 403-2025-26,  referred to Judiciary Committee on January 31, 2025) This issue is usually dried out and presented as a question of federalism, but the  “sanctuary city “concept, too, has roots in European medieval law and custom: “Stadtluft macht frei!”( city air makes free ) references  the custom that  a bondsman or serf  who could maintain residence in an urban enclave for a year and a day  would become a free man.    HB 403 may have a tough time surviving here in the Quaker State.  

 Presently, sanctuary cities are being openly maintained. Ecclesiastical sanctuary appears to be tiptoeing into the back door of the American courthouse, with its nascent progeny  (scholastic sanctuary) peeking out from under its cassock. And  in light of our cultural heritage that isn’t surprising.  Legislation may come and go, but from King Solomon through Quasimodo, from Phillip Pullman through the plaintffs in Philadelphia Yearly Meeting et al, supra,   the people’s belief in sanctuary is woven into the folk jurisprudence of our country and our Commonwealth.