Taking Freedom's Side

In clear contravention of the Bush Administration’s public pronouncements that human rights are the pillar of democratic freedom, the Justice Department in an asylum case before the Fifth Circuit titled Xiaodong Li v. Gonzalez, made the remarkable argument that being punished by the People’s “Republic” of China for “religious activities” is different than being punished for one’s religion.

Such a position reflects the fundamental misunderstanding by the Government of what religion really is – it’s a belief system, accompanied by practices which can include hosting underground meetings where “the group studied the Bible and exchanged religious materials,” even if the persons engaged in such activities are not “characteristically” religious by wearing yamikas or veils.

Unfortunately though this is the rationale that the Fifth Circuit used to ship a man back to China to almost certain persecution, if not death, unless the Supreme Court overturns the decision. The Circuit Court Judge Carl Stewart writes:

The Supreme Court has held that persecution is “on account of” one of the protected grounds if the persecutor’s motivation to harm the victim is on account of the victim’s possession of the characteristic at issue.

The court uses the persecution of the Jews at the hands of the Nazis
as the type of “characteristic” at issue (talk about raising the bar):

The Court stated, as an example, that the Nazi regime’s persecution of Jews was not persecution on account of political opinion. Id. While, the Nazis’ persecution was part of the pursuit of their political goals, the Nazis were not motivated by a desire to overcome a political opinion held by Jews; therefore, the persecution was not “on account of” political opinion. Likewise, the Court stated that “if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion.” Id. The federal courts and the BIA have also recognized that an alien may demonstrate that a persecutor’s actions were on account of a protected characteristic even if a persecutor had mixed motivations; a persecutor does not have to be motivated solely by the victim’s possession of a protected characteristic. Girma v. INS , 283 F.3d 664, 667-68 (5th Cir. 2002) (holding that the alien need not prove that the persecutor was motivated by a protected ground to the exclusion of all other motivations).

Which gets us back to the age old question: Are Jews a race or a group of religious believers? My old boss at Hudson Institute, Michael Horowitz, took issue with Jews for Jesus precisely because they believed being a Jew was akin to an ethnic group. Mike argues, and I believe righly, that once an individual embraces the fact that Jesus Christ is their Lord and Savior, they are no longer Jewish, but now Christian.

Mike’s position avoids the inevitable and I believe quite reprehensible position of the Bush Administration that in order to be a “persecuted” believer one must have an inherent characteristic, like skin type or ethnic heritage, indicating one’s religious beliefs. This is precisely the reason why conservatives like me are opposed to affirmative action and its ethnic stereotyping.

If this line of reasoning isn’t absurd enough, the Justice Department’s lawyers also argue that Mr. Li’s assertions of persecution are unfounded because:

…China does not prohibit registered religions. Instead, the government contends that China’s motivation for its law that prohibits unregistered churches is tied to its desire to control religion in order to maintain social order, not a desire to persecute based on religious beliefs. The government asserts that there is not sufficient evidence in the record to compel the finding that Li’s criminal prosecution amounts to persecution on account of his religion.

But the Government is willing to stipulate to the following:

The group continued to have meetings, and the police returned in April 1995, at which time they found religious materials in Li’s home. The police advised Li that he was holding an illegal gathering, and Li responded that the Constitution gave him the freedom to practice a religion. The police arrested Li for being a reactionary. He was the only participant arrested because he was recognized as the organizer of the gathering at his home. Li was handcuffed and taken to the police station, where he was placed in a room and told to kneel. When he refused, the police beat him, kicking his leg in the back, hitting him in the head, and pulling his hair, forcing him to kneel. The police interrogated Li, seeking his admission that he was involved in an illegal gathering and had conducted an underground church, but Li refused to plead guilty. Li stated that there were two policemen in the room and one was holding a police bar, which he used to hit Li if the officer did not like Li’s responses to the questions.

After two hours of questioning, Li signed a written confession, acknowledging that he was pleading guilty to conducting an illegal gathering against the government and organizing an underground church. Li was detained with a number of other prisoners under abusive conditions for five days, until he was bailed out by his uncle. Li lost his job and the police forced him to work in the streets cleaning public toilets, without pay. He continued doing this work until he left the country.

Hasn’t Mr. Li been through enough? Isn’t he exactly the type of person with whom President Bush promised we would defend in his second inaugural address? And tell the Falun Gong and the Dalai Lama that China does not persecute based on religion. This position is a joke. Let’s remember Mr. Bush’s inspiring words in that remarkable speech:

America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies. We will encourage reform in other governments by making clear that success in our relations will require the decent treatment of their own people. America's belief in human dignity will guide our policies. Yet rights must be more than the grudging concessions of dictators. They are secured by free dissent and the participation of the governed. In the long run, there is no justice without freedom, and there can be no human rights without human liberty.

Perhaps the White House needs to send a copy of this speech to every United States Attorney to remind them that our nation stands firmly on the side of freedom? May God watch over Mr. Li.