China, Religion, and Persecution

Here (thanks to Professor Friedman's Religion Clause blog) is a post about a recent immigration-and-religion decision by the United States Court of Appeals for the Fifth Circuit:

The Court of Appeals upheld a decision of the Board of Immigration Appeals which refused to permit a Chinese Christian who claimed religious persecution to remain in the United States. At issue were the provision of 8 USC Section 1253(h), which are now found in 8 USC Sec. 1231(b)(3). They permit withholding of an alien's removal from the country if the alien would be persecuted at home on account of his or her religion. Li had been prosecuted in China for holding an illegal religious gathering and conducting an underground church. The court found that Li had been punished at home for violating China's law on unregistered churches and not because of his religion. It said:

The evidence suggests that the Chinese government condones, or rather tolerates, the Christian faith and seeks to punish only the unregistered aspect of Li’s activities. There is therefore reasonable, substantial, and probative evidence to support the BIA’s decision that Li’s punishment was for his activities and not for his religion.... Clearly, we are faced with a complicated issue in this case. The issue in this case is perplexing not only because it involves affairs of a foreign state that are contrary to our fundamental ideals but also because the line between religious belief and religious activity here is indeed a fine one and it is colored by sensitive political and religious concerns. However, while we may abhor China’s practice of restricting its citizens from gathering in a private home to read the gospel and sing hymns, and abusing offenders, like Li, who commit such acts, that is a moral judgment not a legal one.

What a striking example of how our law, and our legal discourse, is increasingly unable to understand "religion" as involving anything more than voluntarily chosen private beliefs.  For China to "condone" or "tolerate" private "Christian" belief, while at the same time requiring churches to register and submit to state supervision, is not, contrary to the court's assumption, to "condone" or "tolerate" the "Christian faith."  It is not particularly surprising, but deeply troubling, that our law proceeds on the assumption that "religion" does not include "holding . . . religious gathering[s] and conducting an underground church."

Consider this text, from a footnote in the court's opinion:

Li stated that he did not want to register his religious group because he did not agree with the Government's requirement that registered churches promote Communism and alter church teachings so as to not conflict with Socialist thought. Li also testified that the police accused him of being a reactionary against the government and he was arrested for,

inter alia

, conducting an illegal gathering against the government. The Government asserts that China regulates religion based on a concern that unregulated religious gatherings are a challenge to their authority and an alternative to Communist thought. Finally, the Three-Self Patriotic Movement committee that registered Protestant groups are supervised by is a “political” organization. Based on this record, perhaps it would have been more appropriate for Li to argue that he was persecuted based on his political opinion.

Again, this line of thinking strikes me as both utterly unremarkable, and totally misguided.   It is a religious claim that churches ought not to have their preaching and liturgy subject to supervision by a Communist state.  I'm reminded of the way, in the First Amendment context, many religion-related claims are framed by litigants in free-speech terms, precisely in order to get the benefit of a body of legal doctrine that has reduced all non-interior-life features of religion to "expression."

The court assures us that "China does permit registered Protestant groups to practice their religion."  No, it doesn't.  Registered churches must "promote Communism and alter church teachings so as to not conflict with Socialist thought."  Such churches are not, I would think, being permitted to practice their religion.

This decision is very upsetting to me.  Am I over-reacting?

Rick