A Divided Supreme Court Appears Troubled by Texas Death Penalty Religious Freedom Case

The United States Supreme Court heard argument November 9, 2021 to review Texas death-row prisoner John Henry Ramirez’s claim that the state’s refusal to allow his pastor to “lay hands” on him or pray audibly during his execution violates the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment right to the free exercise of religion. The Court appeared troubled by Ramirez’s religious freedom claims, but some conservative justices openly worried that ruling for Ramirez (pictured) would open a floodgate of last-minute execution-related litigation at the Supreme Court.

The Court had stayed Ramirez’s execution on September 8, 2021, in an order issued three hours after he had been scheduled to be put to death. Ramirez had asked that Texas permit his pastor to accompany him to the execution chamber, pray audibly, and “lay lands” on him to administer religious rites, as the state had permitted prison chaplains to do in the past. Texas — which had amended its execution protocol and rules regarding pastoral comfort in the execution chamber multiple times over the months preceding Ramirez’s execution — agreed to allow his pastor to “observe” the execution inside the death chamber but refused his requests for his pastor to pray out loud and touch him.

While Texas and Ramirez accused each other of dilatory tactics, Deputy U.S. Solicitor General Eric J. Feigin, who had been granted permission to participate in the argument, attempted to lay out a framework for determining the point at which the provision of particular forms of religious comfort in the execution chamber impaired the execution process itself. He divided the execution process into two segments — the period before the execution team begins administering the lethal-injection drugs and the execution itself. The Bureau of Prisons (BOP) permitted religious advisors of the prisoners’ choosing in the execution chamber during 11 of the 13 federal executions between July 2020 and January 2021, he said, and in each case they engaged in audible prayer or conversation with the prisoner prior to the administration of the drugs without impeding the execution. He said a spiritual advisor physically touched one of the prisoners during the pre-injection portion of the execution without incident, but suggested touch posed more of a risk.

Texas’ Solicitor General Judd Stone argued the state had a compelling state interest in minimizing any risk that something might go wrong during the execution, justifying its requirement that the religious advisor stand away from the gurney and remain silent. Ramirez’s lawyer, Seth Kretzer, argued that Texas’ restrictions imposed a substantial burden on prisoners’ exercise of religion and the state’s own past practices demonstrated that those restrictions were not the least restrictive means necessary to ensure the proper conduct of an execution.

Conservative Justices Suggest Religious Exercise Claim is a Delay Tactic

During oral argument, the state and some conservative justices accused Ramirez — and death-row prisoners in general —of using exercise-of-religion claims to strategically delay execution through last-minute appeals. Justice Clarence Thomas asked Ramirez’s attorney Seth Kretzer if “one’s repeated filing of complaints, particularly at the last minute, [can] not only be seen as evidence of gaming the system, but also of the sincerity of religious beliefs?” Chief Justice John Roberts also asked how to judge whether a prisoner’s religious requests were “sincere.”

After Kretzer suggested that Ramirez’s pastor could touch Ramirez’s foot, far away from any possible interference with the execution IV, Justice Samuel Alito questioned: “What’s going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head? We’re going to have to go through the whole human anatomy with a series of cases,” Alito said. Justice Brett Kavanaugh predicted that if the Court were to grant Ramirez’s request to exercise his First Amendment right to religious exercise during his execution, that “this is going to be a heavy part of our docket for years to come.”

Kretzer argued that “[t]here’s no insincerity as to Mr. Ramirez’s consistently stated beliefs” and that Ramirez sought only to fully exercise his religion and not to delay his execution. In court documents, Krezter argued that “[t]hese ministrations are deeply rooted in [Ramirez’s] sincere religious beliefs and reflect the fundamental importance of prayer, song, and human touch as powerful expressions of Christian faith. To deny them imposes a substantial burden on [Ramirez’s] free exercise of religion.”

Mark Wingfield, the executive director and publisher of Baptist News Global noted the conservatives’ apparently anomalous treatment of Ramirez’s request to practice his Baptist faith. His coverage of the Supreme Court argument began: “A U.S. Supreme Court that increasingly views freedom of religious expression as an absolute right even amid a global pandemic appears to feel differently about the religious rights of a condemned inmate.”

MSNBC opinion columnist Jessica Levinson wrote: “There is something jarring about hearing conservative justices wringing their hands over whether and how to accommodate a death row inmate’s religious beliefs when they have been far more concerned about protecting an individual’s religious beliefs in situations that could pose far greater harm to others.” A subheadline in Vox.com was more blunt. “Several justices appear concerned that respecting inmates’ religious rights might make it harder to execute them,” it wrote.

Are Non-Prison Pastors a Security Risk?

Texas’ principal argument about silencing Ramirez’s pastor in the death chamber was that allowing him to audibly pray and to administer religious rights that require touching the prisoner poses a risk of potentially “catastrophic” interference with the execution, as compared to the risk posed by prison-employed chaplains who had both prayed out loud and touched prisoners during many of the more than 570 executions the state has carried out since the 1970s. The Court’s liberal justices were skeptical of the argument.

“Are you aware in any other states of an execution going astray because of an outside spiritual advisor?” Justice Elena Kagan asked Stone. Justices Stephen Breyer and Sonia Sotomayor also seemed troubled by Texas’ refusal to allow the pastor to pray and touch Ramirez.

Justice Amy Coney Barrett also seemed to side with Ramirez, questioning the genuineness of Texas’ assertion of a compelling state interest in reducing to zero the risk that an execution will go wrong. Likening the security risk assessment to the dangers of weekend communal prison prayer services, she said: “If they said, we want the risk of prison rioting or fighting to be zero percent, that would permit the prison to say there can never be any kind of prayer service or gathering.” A zero-risk interest, she said, would permit states “to altogether bar the spiritual advisor from the chamber because there’s not going to be any lesser restrictive alternative.”

Justice Neil Gorsuch — a possible swing vote in this case who commentators suggest provided the fifth vote to stay the execution of Alabama death-row prisoner Willie B. Smith on a similar claim in February 2021 — did not ask any questions during the argument.

“[Ramirez’s claim] has significance with respect to human dignity and basic decency,” Robert Dunham, executive director of the Death Penalty Information Center, told USA Today. “It says what kind of people we are, more than anything else, and do we believe that at the time of death people should have the opportunity for religious comfort.”

“I just want to be able to touch John,” said Ramirez’s pastor. “If I’m standing right by him, why can’t I just reach out?”