Daniel Chen of the Becket Fund for Religious Liberty Discusses Freedom of Religion in the Execution Chamber

Robert Dunham 0:01 

Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. In this episode, I’ll be speaking with Daniel Chen, counsel at the Becket Fund for Religious Liberty. Mr. Chen graduated from the University of California Berkeley School of Law. Before joining the Becket Fund in 2020, he worked in commercial litigation and participated in pro bono projects on issues of religious liberty and constitutional law. He is part of the team that prepared an amicus curiae brief in the United States Supreme Court case, Ramirez v. Collier, which addresses the death-row prisoner’s right to have a spiritual advisor pray aloud and touch the prisoner during an execution. The court is scheduled to hear oral argument in the case on November 9, 2021. We are recording this the week before that case. Thank you for joining us, Mr. Chen. 

Daniel Chen 0:48 

Thank you very much for having me, Robert. I really appreciate it. 

Robert Dunham 0:51 

Before we get into the specifics of Ramirez v. Collier, could you give our listeners an overview of what the Becket Fund’s mission is and what your work does? 

Daniel Chen 1:01 

Certainly, I’d be more than happy to. So the Becket Fund for Religious Liberty, we’re a nonprofit, nonpartisan law firm with a simple mission to protect the religious expression of all faiths. And we exist to vindicate that right because the religious impulse is natural to human beings and religious expression is natural to human culture. And so we advance that principle in the courts of law, in the court of public opinion, and in the academy, both in the United States and abroad. And at Becket we like to say that we’ve defended the religious rights of people from A to Z, from Anglicans to Zoroastrians. And so, our supporters and our clients represent a myriad of religions, but they all share our common vision of a world where religious freedom is respected as a fundamental human right, that all are entitled to enjoy and exercise. 

Robert Dunham 1:46 

Now the Supreme Court has agreed to hear Ramirez v. Collier, which is a challenge to the restrictions Texas places on religious practice in the execution chamber. Would you tell us what’s at stake in the case? And how did the Becket Fund get involved? 

Daniel Chen 2:02 

I like to think about this case, this case is about fundamental human dignity. And so, for a little bit for background, John Ramirez is a prisoner on death row. He’s religious and he wants his Southern Baptist pastor, Dana Moore, to pray over him with words and touch him in his final moments, in accordance with his religious beliefs, but Texas is denying him that right. And while Texas will permit Pastor Moore to be with Ramirez in the execution chamber, Pastor Moore’s prohibited from quietly praying with Ramirez or offering him the comfort of a grasped hand as he’s put to death. Texas’ actions are particularly egregious, I think, because had Ramirez’s execution date been scheduled before 2019, Texas would have permitted precisely these spiritual practices and rituals. But in 2019, the Texas Department of Criminal Justice changed its policies regarding clergy in the death chamber in a transparent, not-so-transparent attempt to shut out a Buddhist priest and they’ve been restricting the ability of spiritual advisors to comfort the condemned in the death chamber ever since. And so, we at the Becket Fund and numerous amici at the Supreme Court, we believe it doesn’t have to be this way, because Texas’ old policies, as well as the policies of other states and the federal government, demonstrate that prison systems can safely permit chaplains to pray aloud, hold the hands of inmates and provide spiritual solace in their final moments. And this religious liberty right to the comfort of clergy, as we call it, in one’s final moments is an important and it’s a historic right. It’s been protected for hundreds of years, it predates the founding of the United States, and it’s protected not only by the federal civil rights law that’s, that is at issue at this case, RLUIPA, which stands for the Religious Land Use and Institutionalized Persons Act, but it’s also protected by the First Amendment’s Free Exercise Clause. And so I thought, when I think about this case, it’s about John Ramirez simply wants the same treatment that he would have been afforded but a few years ago, and we think the Supreme Court should ensure that states respect inmates’ dignity and faith, particularly in their last hours and allow them meaningful spiritual guidance and solace in the execution chamber. 

Robert Dunham 4:03 

Now, as you mentioned, this isn’t the first time that Texas has tried to restrict the religious practices of people facing execution. You mentioned 2019 and Texas changing its policies. Back then, The Becket Fund also filed an amicus brief in the case of Murphy v. Collier, and that was when Texas attempted to block Patrick Henry Murphy from having his Buddhist spiritual advisor present in the execution chamber. Murphy’s case presented a somewhat different issue from the one in Mr. Ramirez’s case. There, Texas allowed religious advisors in the execution chamber at that time, but it limited them to chaplains who are employees of the prison. What was wrong with what Texas did in Murphy’s case? 

Daniel Chen 4:49 

Yeah, that’s a great question actually. Even before Murphy v. Collier one month previous, there was a case called Dunn v. Ray which arose out of Alabama. And it presented a very similar issue to Murphy, but there, Alabama like Texas had chaplains that they had on their payroll or they contracted with. But unlike Texas, which provided both Christian and Muslim chaplains, Alabama only permitted Christian chaplains. Now Dominique Ray was a Muslim, and he sued to have his imam at his side as he was put to death. And the Supreme Court actually reversed the stay from the 11th circuit, if I’m not mistaken. And a lot of the issues in that case resort, came down to the issue of dilatoriness. And the Supreme Court seems to have many thoughts on that, especially in death penalty litigation. So, Murphy was the second case and actually came out the other way. And, whereas before as a 5-4 decision, in Dunn v. Ray, I believe in Murphy v. Collier, it was 6-3. And Justice Kavanaugh wrote a very important concurrence. And what he said was, it’s obvious from the situation that Patrick Murphy wants to have a Buddhist advisor, whereas only Christian and Muslims are allowed it. So that’s obvious denominational discrimination, and that violates our laws. And so Justice Kavanaugh went ahead and actually said, there are two options at issue here. You can allow a spiritual advisor of all faiths into the death chamber, or you can allow none of them in. So we think of, you can think of that as basically Justice Kavanaugh said you can level up and allow everyone in or you can level down. And what Texas decided to do, following Justice Kavanaugh, was to, and Alabama did it as well, was to level down. But as my colleague, Chris Pagliarella at the Becket Fun, he said, equality of discrimination is a false equality. And that’s kind of our view of the issue as well, because at bottom, if you discriminate equally but still substantially burden a prisoner’s religious exercise, that does nothing to solve the issue under RLIUPA, and it does nothing to solve the issue under the Free Exercise Clause. 

Robert Dunham 6:56 

That’s one of the things that I find really interesting because on the one hand, there is preferential treatment of one faith over another and that is overt religious discrimination, which I think everybody agrees is inappropriate. What Justice Kavanaugh suggested to the states, was that uniform prohibition of religious practice in the execution chamber could be permissible under the First Amendment. That’s something that I take it the Becket Fund does not agree with. 

Daniel Chen 7:24 

That’s right. And in our brief, we tackle that issue. Our brief, a lot of the issues that were granted for cert, there are many issues in Ramirez v. Collier. There’s the prison litigation reform deck, the PLRA exhaustion issue, which we don’t necessarily get into too much in our brief. There’s also the issue of equities. But there’s also the substantive merits issues under RLIUPA which we do get into a little bit. But also the court granted cert on the fundamental First Amendment question as well. And the Becket Fund, our brief actually focuses on that because none of the other parties and none of the other amicus briefs really get into that in deep detail. And we basically say, the Supreme Court has in recent years said that the Constitution must be interpreted according to historical understandings and practices. That’s definitely in other areas of law, but it’s also with particular import as to the First Amendment religion clauses, so the Establishment Clause and the Free Exercise Clause. And what we do is we unearth the history of comfort of clergy as it relates to audible clergy prayer at the time of execution, and clergy touch. And so a lot of our brief is going through and marching through the history, dating back four or five hundred years back to England before even the founding of the United States. 

Robert Dunham 8:46 

So what is it that historically was permitted and what historically was practiced when it came to executions? And why do you think that after it not really being an issue at all, for the first 200 years of the Republic, it’s an issue now? 

Daniel Chen 9:01 

This is the meat of what our amicus brief was before the Supreme Court. And we basically point out, there’s two practices at issue here. The first one is audible clergy prayer. I’ll handle that first. And the second one is clergy touch. So, as the audible clergy prayer in England and continuing in our colonies a practice of audible spiritual prayer and guidance, in a prisoner final moments, long proceeded and actually continued through the founding. So the first piece of history we have is this chaplain at Newgate Prison, who’s called the Visitor of Newgate or the Ordinary of Newgate. He was an early prison chaplain, first appointed in 1544, to minister to prisoners there, and one of his duties was also to accompany that condemned to Tyburn Gallows, where he’d stand with them in the cart immediately before the execution took place, to pray with and for the prisoner. And the Ordinary of Newgate was an Anglican cleric, but by the 1700s a lot of the history shows that noncomformists, Catholics, Jews, and others were accommodated with spiritual advisors of their own choosing. Now, if you think about the milieu at that time and how England was being roiled by religious controversies and civil war, I think this is a pretty remarkable accommodation, and it speaks to the strength of the religious liberty interest at stake in these death penalty situations. So the history continues. In England in 1649, King Charles the First was executed by Parliament during the English Civil War. But even in the midst of a civil war that had really strong religious undertones about how the Anglican Church was supposed to be organized, Parliament permitted King Charles the First to be ministered to on the scaffold by his own clergyman, who was the Anglican bishop William Juxon. And so this consistent protection for audible clergy prayer at the time of execution also continued in American history. It took place in New England in the 1600s with notable Puritan ministers like Cotton Mather, who was leading prayers for the condemned right until the point of execution. During the Revolutionary War, George Washington ordered that soldiers condemned to execution for desertion, they’d nonetheless be quote, unquote, attended with such chaplains as they choose. And so these practices also continued long after that, through the 19th century to modern times. If you look at our brief, we include pictures, and then most famously one is a picture of the Nuremberg trials. And after Nazi war criminals were convicted of war crimes and crimes against humanity at the Nuremberg trials, chaplains accompanied them and spoke aloud prayers at their gallows. And the war criminals were allowed to have clergy audibly pray for them, not because of who they were, but because who we are as Americans. Finally as to audible clergy prayer at the time of death, we have recent newspaper articles describing scenes with death row chaplain standing besides condemned prisoners in the execution chamber offering final prayer and spiritual guidance as they’re being strapped down. So you show, we, the brief shows that this is a consistent thing for audible clergy prayer at the time of execution. Now, clergy touch is similar. And it’s similarly protected by the Free Exercise Clause. But I do, I do want to say it’s a little bit different, in the sense that for most of history, the methods of execution used by the government made it physically impossible for clergy members to touch a condemned person at the time of death. So if you think hanging, firing squad, electrocution, or the gas chamber, it’s really infeasible to have a clergy member or spiritual advisor by your side, holding your hand, touching your shoulder, offering you some solace. But I will say, even with these methods of execution, clergy typically engaged in physical touch up until the last possible moment. So at Newgate, condemned prisoners were permitted to have their ministers ascend the cart to physically touch them right before execution. American news reports document similar episodes all throughout the 1800s, as we document in our brief, and even recent newspaper accounts show that clergy attempted to provide physical touch, even at some potential danger to themselves. So there was a 1990 execution where a chaplain put his hand on the back of a prisoner’s head and held his hand while speaking to him, but let go right before the electricity was applied. And so this tradition also shows that even as methods of execution, as they’ve evolved over time, the clergy’ role has remained constant. And they’ve performed a faith’s traditional acts of spiritual solace as close in time to the moment of death as the method of execution will allow. Now to the second part of your question, Robert, why did things change so recently? I think that’s a great question, because I, the thing that is very interesting about this case is, as I mentioned a little earlier, Texas and Alabama are kind of outliers since 2019, they’ve changed their policies. But up until 2019, they allowed these two precise types of spiritual practices in their death chambers, and some amicus briefs at the Supreme Court are from former prison officials and former spiritual advisors who say like, look, this is what happened before. And so, we look at that and we look at Alabama and Texas, I think, in many ways, arbitrarily choosing to deny these practices that they’ve allowed for, for so long. And it really is for us, without explanation. 

Robert Dunham 14:06 

I think there’s a sense in which Alabama and Texas brought this on themselves. Because when you look at the execution protocols around the United States, who is permitted in the execution chamber and who is not, you find that almost none of them mentioned religious advisors one way or the other. And in most states, it was not an issue and you didn’t have the religious advisors necessarily there at all. But when Alabama and Texas began discriminating in the use of the religious advisors by not providing them to people who wanted to have their own faith present in the chamber, that’s when it first went to the, to the US Supreme Court. 

Daniel Chen 14:45 

Yeah, I do think that these cases started coming up quite recently in 2019. That’s kind of when we became involved and started viewing, looking at this issue more closely. 

Robert Dunham 14:56 

When we look at the issue, the issue that we’ve seen in the successful motions for stays of execution in the US Supreme Court, the cases all have also involved the Religious Land Use and Institutionalized Persons Act. And under that statute, there’s a clear standard, not necessarily what can be done, but the principles on how you can decide what can be done. First, there has to be a substantial interference with religion. And if that is the case, the government is still permitted to do that in certain circumstances, but it has to be to advance a compelling state interest, and it has to be in the least restrictive manner possible. Now, you’ve just described all of these things that historically religious advisors, spiritual advisors, pastors have been permitted to do at executions. How can Texas justify saying that a religious advisor can be present in the execution chamber, but can’t say anything and can’t touch anyone? 

Daniel Chen 15:58 

Thanks for talking about RLIUPA. And I think that federal civil rights law is very, very important. And I will say, you’re right that in order to be able to put these restrictions in place, Texas has to demonstrate strict scrutiny, that is a compelling governmental interest, as applied to this particular defendant. It can’t just be an abstract high level interest and it has to be the least restrictive means. The standard as the court set in Holt v. Hobbs is, quote, unquote, exceptionally demanding. And if there’s a less restrictive way to do it, Texas must do it. That’s according to the law. And so, prison security interests are undoubtedly very, very important. Courts do take that into account. And the interesting thing in this particular case as well is that Texas doesn’t really contest that this substantially burdens John Ramirez’s religious exercise, they conceded effectively and go straight to the affirmative defense of strict scrutiny. And one thing that’s important to remember as to a strict scrutiny defense, compelling governmental interest, and least restrictive means, is that that’s the government’s burden. And one of the really interesting things, I’m not sure if you noticed this, when you’re reading the state of Texas’ brief, they tried to flip that burden. They tried to go into some of the court’s method of execution guidance and say, like, look, in this instance, we point out that a prisoner has to be the one to point out an available alternative for the method of execution. And you should import that into RLIUPA, whereas traditionally, it’s always been understood that is the government’s burden. So I think that that’s very interesting because I think it goes to show the weakness of Texas’ argument. And I will say, again, the fact that Texas did this, in 2019, and Alabama did this in 2019, allowed these particular types of religious practice: audible clergy, prayer and clergy touch. Again, Texas doesn’t really respond to this. And if you’ve done it in the past, we know from Holt v. Hobbs and from another, a number of other important Supreme Court decisions, if you’ve been able to do it in the past, you have to be able to come up with some justifiable reason for why you’re departing from that. And Texas here, I believe, hasn’t done that. And so I think that’s one of the reasons why they fail. We also point to other jurisdictions that are able to accommodate these religious practices. And we’ll note that the federal government at the end of 2020, at the end of the Trump administration, did federal executions. And a number of religious advisors during those executions also did these type, precise types of religious practices with condemned inmates. And so I think all that evidence goes to show that on strict scrutiny, Texas can’t meet its burden. 

Robert Dunham 18:35 

There’s another development as well, fairly recently, that I think, suggests that Texas doesn’t have a legal leg to stand on. Before cert was granted in Mr. Ramirez’s case, Alabama was attempting to execute Willie Smith, and Willie Smith challenged Alabama’s switch from what you were describing. They used to allow pastors in and then they excluded him, and Smith challenged, saying that excluding his pastor altogether would violate the Religious Land Use and Institutionalized Persons Act. When Alabama wanted to go forward with the execution anyway, the federal appeals court in that state, the 11th Circuit, issued an injunction to block the execution. And then the US Supreme Court refused to lift that injunction. When that case went back to the lower court, Alabama and Willie Smith negotiated. Mr. Smith was executed earlier in October. Part of that negotiation was that Alabama agreed to allow Mr. Smith’s pastor to anoint him with oil, to touch him, to say audible prayers, to administer last rites, and then he would step away when the execution began. If, if Alabama can do it with the same type of laws that Texas used to have, and it’s a practice that didn’t interfere, then why can’t Texas? 

Daniel Chen 20:03 

Yep, that’s definitely a great point. And so, a little bit more of history into these cases at the Supreme Court. After Murphy v. Collier, which was in March 2019, the next year in June 2020, there is another case Gutierrez vs Saenz, where the Supreme Court protected a Christian prisoner in Texas, allowing the pastor to accompany him into the execution chamber. And there were no dissents. So what the Supreme Court did though, is to say, okay, we want the district court to do as much factfinding as quickly as possible about the security concerns that are possible. And then, what you have following that in February 2021, so just earlier this year, is the case of Willie Smith, Dunn v. Smith out of Alabama. And again, after Murphy v. Collier came down, Texas and Alabama, as we discussed earlier, level down, so they didn’t allow anyone in, right? And so now, Willie Smith brings litigation saying, in order for me to be executed, I need to have my pastor present and the 11th circuit granted the stay of an execution and at the Supreme Court there weren’t enough votes to lift this thing. Justice Kagan, with Justice Breyer, Justice Sotomayor and Justice Barrett wrote a concurrence about why, why RLIUPA protected Willie Smith’s right and it was a great opinion. And Kavanaugh dissented with Chief Justice Roberts in that case and said, eventually, we just need to go along. Prison systems need to, if they want to avoid additional litigation, need to just move forward with this. And we think that what happened, as you described on remand with the state and Willie Smith, negotiating about what’s permitted Alabama not only allowed clergy touch, not only allowed clergy prayer, as you mentioned, they now allowed anointing his head with oil. And if Alabama was able to do it, and they’re in precisely the same spot as Texas, pre 2019 and after 2019, why can’t Texas do it? And we think that that’s a very, very important data point, we included it in our briefing. I think many other parties did too. And I think Texas is probably at a loss to explain the difference. 

Robert Dunham 22:02 

That gets us to really the fundamental question here. The very fact of an execution is inconsistent with the exercise of religion. Because if you’re going to execute somebody, obviously, they won’t be able to exercise any rights at all, they will be dead. Now, from a legal perspective, as long as the death penalty is constitutional, states have a compelling interest in carrying it out. And that means not only interfering with the exercise of religion, it means ending it all together. So what’s the point at which the exercise of religion in the execution chamber has to stop and has to give way? And what should a state be able to limit? And how should they be able to limit it in the execution chamber? 

Daniel Chen 22:51 

So one thing about the Becket Fund in these cases that we’ve brought amicus briefs in, we don’t actually take a position on the death penalty, per se. As you’ll well know as being the executive director of the Death Penalty Information Center, there’s a lot of debate about not only the constitutionality of the death penalty, and that’s in American society writ large, it’s also true in religious communities, and not only as to its constitutionality, but as to its morality. And so we don’t actually take a position on that particular issue about the death penalty. But I think you’re right in the sense that the Supreme Court has time and time again, since the 70s, since the death penalty was reinstated by the Supreme Court, to say that the death penalty is constitutional and there’s a compelling governmental interest in carrying it out. And so, in a sense, it would extinguish religious exercise rights of a prisoner. But the question at issue there, I think, would be, are you able to satisfy strict scrutiny? And when a state issues a final judgment as to, an inmate as to the legality of the death penalty, whether or not he or she should be put to death, it seems to me there’s no less restrictive means to be able to carry out that compelling governmental interest in carrying out the death penalty. And so I think you’re right. In that sense, there’s not going to be, there’s not going to be many ways to raise a religious challenge to the death penalty itself. So the question that you mentioned is how far does it go? And I think a lot of that has to do with the balancing test. And there are a number of hypotheticals out there in the world about particular exercises, and I, I can’t really get into any of those per se without knowing particular facts about the case. But I will say that in a lot of these instances, what we’re going to be talking about is whether or not the strict scrutiny, affirmative defense is met by the government. And also additional threshold issues that are even at issue here in John Ramirez’s case about sincerity of belief and whether or not the belief is actually a religious belief. So the state of Texas goes to great lengths to challenge sincerity. It appears here on the record that John Ramirez’s religious exercise is sincere, but in a lot of cases going forward it’s a, it’s a question that’s up for debate as to whether or not those exercises are sincere. And I think the Supreme Court and courts around the country are also going to look at a lot of this litigation, particularly under the dilatory, abusive litigation tactic standard. And think about sincerity in those terms. I mean, and that’s also what the Fifth Circuit did in this case as well. 

Robert Dunham 25:24 

When it comes to what the spiritual advisor can do in the execution chamber, where does the Becket Fund think the line should get drawn? 

Daniel Chen 25:35 

I think it’s hard to think too far ahead about hypotheticals. And in the minority of cases that we’ve seen since this issue has come to the fore since 2019, it’s really been these types of issues about clergy touch, and about audible clergy prayer. And it’s very interesting, because when you look back at the cases that we mentioned, Dunn v. Ray, Murphy v. Collier, Gutierrez v. Saenz, and Dunn v. Smith, it’s pretty much assumed that clergy presence in the death chamber is going to include these types of things. This is an extension of that litigation but we think it’s really part and parcel of it. Like, when you bring a spiritual advisor, a pastor, an imam, a rabbi in, it doesn’t make sense for them to just stand there. I think, planters in this case, they like a potted plant. The purpose of having your pastor, your spiritual advisor present is to offer you spiritual solace in those final moments that are so important. And so, I don’t want to go too far to say what other practices will be permitted because that’s going to be quite a fact-intensive question. It’s going to come down to those issues I just mentioned about sincerity, about substantial burden, about compelling governmental interest and about least restrictive means. But I will say in this particular case on these facts, I don’t think that this is a difficult case. 

Robert Dunham 26:51 

When we look at the broader issue of religious rights, where does the religious rights of death row prisoners fit in and how does that relate to religious liberty more broadly? 

Daniel Chen 27:03 

One of the things I think about like as it goes to Employment Division v. Smith, which, of course is a canonical Free Exercise Clause decision authored by Justice Scalia in 1990. If you read the tenor of the opinion, it’s pretty clear that he didn’t think that free exercise rights were really going to be an issue for majority religions. And of course, Employment Division v. Smith, was about Native American use of peyote. And so I think what we’ve kind of seen is, religious liberty, as an important fundamental human right, has to be protected across the board, even religious beliefs that I don’t particularly hold or I don’t believe, we need to respect the rights of others to be able to live out the full measure of what their faith requires, of course, consistent with the law, and of course, consistent with being able to satisfy strict scrutiny by the government. I think these cases about prisoner religious liberty rights at the time of death are very, very important. Because, as I mentioned before, when we’re just talking about the Nuremberg trials and Nazi war criminals, we didn’t afford Nazi war criminals comfort of clergy in their last moments as some sort of indication about what we believed about their war crimes, but we did it because of who we are as Americans. And the same is true in these capital death penalty, religious liberty claims, we don’t take a position on the particular crimes or on the death penalty, but the religious liberty to exercise that issue is a fundamental human right. And it’s important to protect that, for the least of these for people who might be different from us, who might have different life circumstances, it doesn’t matter. What’s fundamentally at stake is a religious liberty to exercise that issue. 

Robert Dunham 28:47 

Daniel Chen, thank you for speaking with us on Discussions with DPIC. 

Daniel Chen 28:51 

Thank you very much for having me, Robert.

Robert Dunham 28:53 

To learn more about the work of the Becket Fund for Religious Liberty, visit their website at Becketlaw.org. That’s becketlaw.org. To learn more about the death penalty, visit deathpenaltyinfo.org. And to make sure you never miss an episode of Discussions with DPIC, subscribe to our podcast on your podcast app of choice