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In 2019, a nonprofit volunteer was acquitted of a misdemeanor charge for leaving jugs of water in the desert for passing migrants on the grounds that his actions were motivated by “sincerely held religious beliefs.” What can this tell us about religious freedom and state power on the US-Mexico border?
“When I think of our work, I just think of a hand with a water gallon in it. It’s such a simple thing: putting water in a place where people are thirsty and dying of dehydration. I imagine a map, a big desert—it’s open, it looks really desolate, but it has supplies all over it.” Eleanor* sips a passionfruit soda as she sums up her work at No More Deaths, a humanitarian organization that aims to make the Mexico–US border a little less deadly. It’s a bright, blue-skied winter’s afternoon in Tucson, Arizona, and we’re sitting in an open-air courtyard downtown, where Eleanor has agreed to forfeit her Saturday afternoon to discuss morality and migration with a visiting anthropologist. Upbeat music drifts from the open windows of a nearby Mexican restaurant. The brunch crowd drink coffee, cocktails, and Coronas as they soak up the sun.
An hour south lies the border, where hypothermia, dehydration, and US government policies claim dozens (if not hundreds) of lives a year.
Image description: A horizon stretches out beneath a dark and cloudy sky. Small mountains are visible and the ground is covered in greenery, punctuated with taller cacti. In the foreground, a tall green cactus with six shorter branches extending upward around the main trunk stretches far above the horizon. Méadhbh McIvor
No More Deaths/No Más Muertes was founded in 2004 by a coalition of religious and rights-based organizations in response to the growing number of migrant deaths in the borderlands between Mexico and the United States. Since 2008, No More Deaths has been a ministry of the Unitarian Universalist Church of Tucson, Arizona. Its volunteers work primarily in Southern Arizona and Northern Mexico, where they leave water, food, and blankets for those who survive the crossing; provide first aid to those requiring immediate medical assistance; document abuse by border agents; and search for the remains of migrants who are missing, feared dead.
While some staff and volunteers are new to this form of civil initiative—Eleanor, for example, felt compelled to get involved after taking a class on the border while at university in the mid-2010s—others have a history of border-based activism dating back decades. Some had participated in the sanctuary movement of the 1980s, when religious communities throughout the United States declared their houses of worship “sanctuaries” for asylum-seekers fleeing Central America. “People of conscience, people of faith, decided to step up when they saw the government breaking the law and violating human rights. They saw it as their duty, as people of faith, to intervene,” Eleanor explains.
For anthropologists of law, religion, and the state, the work of No More Deaths raises interesting questions about the categories of “conscience,” “faith,” and “duty,” not least in the context of the federal government’s increasingly draconian border regime. Validated and emboldened by the Trump administration, the US Border Patrol has cracked down on migrant justice initiatives in general and No More Deaths in particular, arresting volunteers on criminal charges ranging from misdemeanor to felony.
How is it, I wonder, that giving water to those dying of thirst is illegal unless it is rendered a religiously-mandated exemption from the law, and thus the exception that proves the rule?
Somewhat paradoxically, the resulting court cases have benefitted migrant advocates by confirming that there is—or, rather, that there can be—a right to help those crossing the border. In November 2019, for example, community college lecturer and No More Deaths volunteer Scott Warren was acquitted of felony harboring charges (for providing food and shelter to Kristian Perez-Villanueva and José Arnaldo Sacaria-Goday, who had travelled to the United States from El Salvador and Honduras, respectively) and a misdemeanor littering charge (for having left jugs of water in the desert). Judge Raner Collins dismissed the latter under the Religious Freedom Restoration Act (RFRA), accepting that although Warren was not affiliated with an “organized religion,” his actions were motivated by “sincerely held religious beliefs.” Given the relationship between his religious beliefs and his humanitarian action, government prosecution would amount to a violation of religious liberty.
In a legal context where protectable “religion” has effectively been reduced to a particular position on human sexuality—at least in many members of the public’s understanding—the recognition of Warren’s spiritual beliefs as equivalent to those of conservative Christians has been hailed as groundbreaking (even as it confirms a Protestant-inflected understanding of religion as sincere, individual, and grounded in interior conscience).
To be sure, Warren’s case is a victory. In addition to the signal it sends an overzealous Border Patrol, Warren has been spared up to 20 years in prison.
Yet as scholars and activists know, such victories are rarely clear-cut. For one thing, RFRA claims remain associated with the Christian Right, a conservative political theology that many No More Deaths staff reject. Although they quickly distinguish Warren’s case from, for example, the Hobby Lobby decision—there’s a difference, as Eleanor put it, between seeking “liberation and freedom for all” and seeking to infringe on the rights of others—it’s not clear that the religious liberty strategy is one they want to pursue. “We’re in a moment of really figuring out if it’s something we want to stand by and push for as an organization or not.”
On a more conceptual level, such victories turn on the state’s authority to rule on such matters in the first place. Judge Collins may have taken a broad approach to the kind of religiosity protected by RFRA, but there’s no guarantee that his colleagues will agree, nor that other defendants’ spiritual or conscientious claims will be found to constitute “religion” for legal purposes. On what basis can judges make such decisions without acting as theologians (if not inquisitors), separating out wheat from chaff, orthodoxy from heresy?
This is an important issue, both practically and theoretically. It is certainly one I have spent hours debating with students and colleagues, and on which my previous ethnographic research has focused. Alongside it, though, I find myself contemplating another implication of the Warren ruling, one that is related to and yet distinct from what Winnifred Fallers Sullivan has called “the impossibility of religious freedom” (that is, the paradox of seeking to legally protect something that cannot be adequately defined for the purposes of law).
The Warren case does not provide blanket protections for those leaving supplies in the desert. Rather, it confirms that “sincerely held religious beliefs” may provide a defense, in very limited circumstances, to acts that otherwise remain criminal. How is it, I wonder, that giving water to those dying of thirst is illegal unless it is rendered a religiously-mandated exemption from the law, and thus the exception that proves the rule?
In a context of militarized borders, sanctuary city crackdowns, and the criminalization of migrant solidarity, legal cases that seem to do justice might well reaffirm the power of a cruel, death-dealing state; less an oasis in the desert, more a shimmering mirage.
*Eleanor is a pseudonym. My thanks to Eleanor and No More Deaths for their participation in this research.
Méadhbh McIvor is a junior research fellow at Pembroke College, University of Oxford.
Cite as: McIvor, Méadhbh. 2020. “Water in the Desert.” Anthropology News website, December 11, 2020. DOI: 10.14506/AN.1553