In an after-hours order issued on September 8, 2021, the U.S. Supreme Court halted Texas’s planned execution of John Henry Ramirez and agreed to review his claim that the state’s refusal to allow his pastor to “lay hands” on him or pray audibly during the execution violated federal law and his First Amendment right to the free exercise of religion.

The order, released shortly after 9:45 p.m. Eastern time — nearly three hours after Ramirez’s execution was scheduled to begin — directed the Court’s clerk “to establish a briefing schedule that will allow the case to be argued in October or November 2021.” It was the fourth time since 2019 that the Court has stayed an execution based on a dispute over the exercise of religion in the death chamber, but the first time it has scheduled any of those cases for full briefing and argument. The court has not granted stays of execution for any other reasons during that time period.

Ramirez’s request to permit his pastor to lay hands on him during the execution was the most extensive religious demand made to date by any condemned prisoner. However, Ramirez also requested that his pastor be permit to pray out loud with him during the execution process. Ramirez’s counsel asked the Court to review whether “the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies … [and] from singing prayers, saying prayers or scripture, or whispering prayers or scripture” violated the Free Exercise Clause of the First Amendment and the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

Counsel likened Texas’s policy to require his spiritual advisor to “stand in his little corner of the room like a potted plant even though his notarized affidavit explains that laying his hands on a dying body — and vocalized prayers during the transformation from life to death — are intertwined with the ministrations he seeks to give Ramirez as part of their jointly subscribed system of faith.” The U.S Court of Appeals for the Fifth Circuit had allowed Texas’ policy to stand, but Judge James L. Dennis dissented on the RLUIPA issue, saying that Texas had not shown that its requirement of silence and inaction in the execution chamber was the least restrictive limitation on religious activity necessary to advance its interests in security in the execution chamber. “What purpose is there for allowing a spiritual advisor, like a pastor, to be present in the execution chamber if that pastor is prohibited from attending to the spiritual needs of the condemned during the final moments of his life,” he wrote.

The Becket Fund for Religious Liberty filed an amicus curiae brief in support of Ramirez, in which it argued, “The right of a condemned person to the comfort of clergy — and the corresponding right of clergy to comfort the condemned — are among the longest-standing and most well-recognized religious exercises known to civilization.”

The Recent Free Exercise of Religion Cases

The issue of the presence of a religious adviser in the execution chamber first came before the Court in February 2019 when Domineque Ray, a Muslim death-row prisoner in Alabama, challenged a provision in the state’s execution protocol that made a Christian chaplain part of the state’s execution team but prohibited other religious advisors from being present in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit stayed Ray’s execution, saying he was likely to succeed on his religious discrimination claim and scheduled briefing in his case. In a 5-4 decision that drew harsh criticism across the political spectrum, the Supreme Court reversed, without addressing the constitutional issue.

One month later, the Court faced a similar issue, when Texas — which permitted prison-employed Christian and Muslim chaplains to be present in the execution chamber —refused Buddhist death-row prisoner Patrick Murphy’s request to allow his Buddhist priest to minister to him during the execution. This time, the Court granted a stay to permit Murphy to seek review of the issue, “unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”

Texas then amended its execution protocol to exclude all religious advisers from the execution chamber and rescheduled Murphy’s execution. It’s new protocol allowed prison chaplains, but not other religious advisers, to remain with a condemned prisoner until he or she entered the execution chamber. A federal district court again stayed Murphy’s execution, saying that Murphy’s concerns about religious discrimination in Texas’s pre-execution procedures were “as compelling as those in [his] original complaint.” After the U.S. Court of Appeals for the Fifth Circuit upheld the stay, Texas did not seek review by the Supreme Court.

The issue again reached the Court in June 2020, when Ruben Gutierrez challenged the ban on the presence of religious advisers in the execution chamber. Gutierrez asked TDCJ to provide him a Christian chaplain in the execution chamber, arguing that it was “a reasonable accommodation” necessary to permit him to exercise his religious beliefs. Texas refused, and Gutierrez sued, arguing that the state’s action violated the Free Exercise and Establishment Clauses of the First Amendment and substantially burdened the exercise of his religious beliefs protected under federal law by the Religious Land Use and Institutionalized Persons Act. The U.S. Supreme Court stayed Gutierrez’s execution one hour before he was scheduled to die, directing the district court to conduct an evidentiary hearing on Gutierrez’s claims.

The Court granted a third religious exercise stay in February 2021, when Alabama death-row prisoner Willie B. Smith III argued that the state’s refusal to allow his spiritual advisor to provide him religious comfort in the execution chamber violated the RLUIPA. The evening before his scheduled February 11 execution, the U.S. Court of Appeals for the Eleventh Circuit issued an injunction barring Alabama from putting Smith to death, ruling that the state’s recently adopted policy of excluding all religious advisors from the execution chamber substantially burdened the exercise of Smith’s religious beliefs and was not “the least restrictive means to further [its] compelling interest” in maintaining security during the execution. Four hours after the execution was scheduled to proceed, the Supreme Court let the injunction stand, unless Alabama permitted Smith’s pastor to be present to provide him religious comfort in the death chamber.

In a September 9, 2021 news story, Associated Press reported that Alabama and Smith had reached a settlement of the religious exercise issue in which Smith’s pastor would be permitted to anoint Smith’s head with oil, pray with Smith, and hold his hand, as long as the pastor moved out of the way before the execution team performed its consciousness check. The pastor would be required to remain in the death chamber until the execution is completed and curtains to the witness rooms are drawn.

Alabama’s accommodations to Smith substantially undermine Texas’s argument that its complete prohibition against pastoral speech and touch is the least restrictive means necessary to maintain security during the execution.