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# Everyone Will Call This the ICE at Churches Ruling. The Government Lost It in an Argument It Never Made.
- URL: https://www.theredlighthouse.org/advocate-fourth-circuit-waiver/
- Published: 2026-08-19T11:47:43.000Z
- Updated: 2026-08-19T11:47:43.000Z
- Description: The Fourth Circuit affirmed on Tuesday. DHS never argued a compelling interest in the district court, so it forfeited strict scrutiny on appeal.
- Author: The Red Lighthouse
- Tags: The Advocate, News Stories

Strip the case to its principle and it is not complicated. When the federal government substantially burdens somebody's religious exercise, a 1993 statute requires it to prove two things: a compelling interest, and that it chose the least restrictive way to serve that interest. If the government declines to try, it loses. That is not a loophole. That is the statute working.

On Tuesday, August 18, the Fourth Circuit affirmed a preliminary injunction barring the Department of Homeland Security from applying its 2025 immigration enforcement policy at a named list of Quaker meetinghouses, Sikh gurdwaras and Cooperative Baptist congregations. The case is *Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security*, No. 25-1512\. Senior Judge Barbara Milano Keenan wrote for a unanimous panel, joined by Judge Pamela Harris and by Judge G. Steven Agee, a George W. Bush appointee, who then wrote separately.

The headlines say a court blocked ICE from arresting people in churches. That is the outcome. It is not the holding, and the difference is the whole reason to read the opinion.

Here is the sentence that decided it: the government "did not raise this argument in the district court."

## What actually happened

Federal immigration authorities have restrained enforcement at houses of worship for a long time, in guidance reiterated in 2001, 2004 and 2008 and in formal ICE and CBP policies in 2011 and 2013\. In 2021 then Secretary Alejandro Mayorkas superseded those with a memorandum requiring supervisory approval before any enforcement action in or near a protected area, and requiring that any such action be taken out of public view. Protected areas expressly included places of worship.

On January 20, 2025, Acting Secretary Benjamine Huffman rescinded it. Officers were told to use discretion and, in the administration's phrase, a healthy dose of common sense. A DHS spokesman put the point less gently: "criminals will no longer be able to hide in America's schools and churches to avoid arrest."

Six Quaker meetings, the Cooperative Baptist Fellowship (about 750,000 Baptists) and Gurdwara Sahib West Sacramento (about 30,000 Sikhs) sued under RFRA and the First Amendment. Judge Theodore D. Chuang of the District of Maryland granted a preliminary injunction in part. The government appealed.

Keenan held the plaintiffs had shown a substantial burden. The evidence was attendance: the policy "is having a chilling effect on their congregations and already has caused declines in attendance." She used the DHS spokesman's own quote as proof the threat was real rather than speculative, since these are congregations that sit in immigrant neighbourhoods and deliberately gather immigrants.

Then came strict scrutiny, and then came the collapse. On appeal the government argued a compelling interest in "the uniform enforcement of the Nation's immigration laws." It had not argued that below. It had put in no evidence below that the 2025 policy was the least restrictive means of anything. The Fourth Circuit held the contention waived, citing *Bell v. Brockett*. Agee's concurrence says it plainer: instead of carrying its burden, DHS "persisted in its generic assertion" that the plaintiffs lacked standing and that strict scrutiny did not apply at all.

So the government did not lose because a court decided immigration enforcement is less important than worship. The government lost because it bet everything on a threshold argument, the threshold argument failed, and there was nothing behind it.

## Concede the fair points, because there are three

First, this is preliminary. It is a likelihood of success on a developing record, and the case continues. DHS can still build the compelling interest record it never built.

Second, the injunction is narrow, and Agee wrote separately mostly to say so. It reaches only the named plaintiffs' identified places of worship. Not other houses of worship, and not the schools or hospitals the 2021 policy also called sensitive. Anyone telling you ICE has been barred from American churches is overstating it by an order of magnitude.

Third, the court did not decide the constitutional question. The First Amendment claim was left untouched, because a plaintiff who wins on one ground does not need the other. If you were hoping for a ringing free exercise precedent, this is not one.

## Why you should care even if you dislike the outcome

RFRA is the shield here. The same RFRA that shielded Hobby Lobby. Keenan quotes *Burwell* directly for the proposition that the least restrictive means standard is "exceptionally demanding," which is the sentence conservative litigators have been leaning on for a decade. It did not change its meaning when the plaintiff turned out to be a gurdwara in West Sacramento.

That is the trade, and it is not a bad one. A statute that only protects congregations the current administration likes is not a statute. It is a favour, and favours get withdrawn. Ask what it would mean to read RFRA narrowly here and then need it read broadly the next time a federal agency comes for a Baptist ministry it finds inconvenient.

Note also what the government could have done and did not. It could have shown up in Greenbelt with evidence, argued a real interest, and proposed a narrower policy. Strict scrutiny is demanding but it is not unsurvivable. The lesson for anyone litigating religious liberty from any direction is dull and enormous: make the argument in the trial court, or you will not have it on appeal.

*If you want this kind of reading of the actual record rather than the actual press release, that is what a membership funds. Free to read, always. Free to make, no.*

## Sources

1. *Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Dep't of Homeland Security*, No. 25-1512 (4th Cir. Aug. 18, 2026), published opinion, Keenan, S.J., with Agee, J., concurring. Argued May 6, 2026\. On appeal from D. Md. (Greenbelt), Chuang, J., No. 8:25-cv-00243-TDC. [ca4.uscourts.gov](https://www.ca4.uscourts.gov/opinions/251512.P.pdf?ref=theredlighthouse.org)
2. Melissa Quinn, "Appeals court upholds block on immigration arrests at certain houses of worship," CBS News, August 18, 2026\. [cbsnews.com](https://www.cbsnews.com/news/appeals-court-blocks-immigration-arrests-houses-worship/?ref=theredlighthouse.org)
3. Courthouse News Service, "Fourth Circuit upholds injunction barring immigration arrests at some houses of worship," August 18, 2026\. [courthousenews.com](https://www.courthousenews.com/fourth-circuit-upholds-injunction-barring-immigration-arrests-at-some-houses-of-worship/?ref=theredlighthouse.org)
4. Cooperative Baptist Fellowship, "CBF Injunction Upheld by Fourth Circuit," August 18, 2026, party statement. [cbf.net](https://cbf.net/cbf-injunction-upheld-by-fourth-circuit/?ref=theredlighthouse.org)