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?”