U.S. Supreme Court Stays Texas Execution, Agrees to Review Contours of the Right to Religious Exercise in the Execution Chamber

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.