Nathan Chapman is a good friend and passed these thoughts along to me RamirezI am posting it with his permission.
John Henry Ramirez, a Texas judge, was convicted and sentenced in 2008 to death for the murder of Pablo Castro. Ramirez argues now that he is entitled under the Religious Land Use and Institutionalized Persons Act and the First Amendment, to have his pastor pray and lay his hands on Ramirez while he’s still alive. The Supreme Court is considering whether permitting the pastor to enter the death chamber—but not permitting him to audibly pray and/or lay his hands on Ramirez—amounts to a “substantial burden” on Ramirez’s religious liberty. It does, according to me and other scholars.
On November 9, the Court heard oral arguments in this case. Many justices were concerned that Ramirez may have made false claims, that the courts are not competent to decide if a claimant has religious accommodation, and that a Ramirez finding would cause a flood (including insincere) of religious liberty lawsuits to defer executions. The Court never addressed the legal question of whether or not a court can adjudicate religious accommodation claimsants’ sincerity. It became clear that many justices struggled to answer this question. The short answer is yes. The courts can decide whether a claimant is sincere or not, but they should keep their judgment open. For accuracyYou should also consider the religious beliefs of your claimant. The Court will consider Ramirez, it should keep in mind that its decision may have implications far beyond death penalty cases—potentially reaching every religious accommodation case.
The Court must rely upon several principles regarding the adjudication of religious sincerity. This is a lot of what I wrote in the Washington Law Review many years back.
- Religious accommodation claimsants must prove their sincerity. If the claim is not sincere, it is not really a religious accommodation claim – it is just a request for a legal variance, a fraudulent one at that.
- It is not prohibited for the government to determine whether an applicant is honest under the Establishment Clause.Justice Jackson persuasively stated that it does, in a dissident opinion. Ballard v. United States, 322 U.S. 78 (1944). He argued that the court could not evaluate religious sincerity without also considering the truthfulness and validity of religious claims. In oral arguments or dicta, justices sometimes assume the same. This is wrong. The difference between sincerity, and accuracy is crucial. A government cannot evaluate the truthfulness of religious claims (did Moses receive the Ten Commandments? It is possible to raise serious Establishment Clause concerns without denying the accommodation. If the government refuses to accommodate a claimant because he believes that a religious belief may be inaccurate, it amounts to an official disfavor for one religion as well as tacit orthodoxy. Sincerity is a different matter. Does the claimant believe that the Ten Commandments were given by God? It is not about whether the believer holds it, but rather the sincerity question.
There is a lot of expertise in the government’s ability to determine religious sincerity. The draft boards determined the sincerity and eligibility of Vietnam’s conscientious objectors. Sometimes, prison officials determine religious sincerity. The courts do it too but very rarely. Why don’t courts do this more often? Religious accommodation claims against the government are the majority. The government seldom challenges the claimant’s sincerity. There are probably many reasons for this: lots of claims are obviously sincere; adjudicating sincerity can be fact-intensive (read: resource-intensive); and alleging that someone doesn’t really hold their alleged religious beliefs—especially if they are widely-held—can be impolitic. These concerns are not shared by prison officers and employers who face religious accommodation claims. Also, they may have strong financial and security interests, so they will likely challenge the sincerity of a claimant. One example is that many COVID-19-required employers require religious objectionors to fill out long questionnaires in order to rule out fraudulent claims.
- Professionally competent courts can determine sincerity.It happens all the time, even in situations that require them to be dishonest. It is not difficult to make religious claims. Religions are personal and often unfamiliar. Courts should be careful and humble, but they shouldn’t avoid this question entirely.
Therefore, the government has power, authority, and often must decide on religious accommodation claims that are true. What evidence is salient? Which evidence should be considered important? How can you avoid making a judgement about the truth of claimant’s belief?
- Consistency is crucial. Does the claimant have any resentful feelings about the issue belief? People can change their religions. This is an aspect of religious freedom.
- Religious context. Does the belief have a tradition or community that supports it? Large or established religions may be preferred over smaller and more novel beliefs. There may be additional reasons to believe that the religion is being promoted by one party. There are many sub-traditions to most religious traditions. Is there anything more American than religious entrepreneurialism? A person isn’t insincere just because they don’t agree with religious traditions or authorities.
- Incentives. Do you have strong, non-religious motives to support the claim? To wear a yarmulke, not so much. Avoid the military draft Do not delay execution You bet. It doesn’t necessarily mean that such claims are false, but it may warrant further scrutiny.
These principles being considered, we will now look at the questions of justices in Ramirez. (I paraphrase.)
Q: Is Ramirez insincere?
A: Remand the case to a trial court in order for him to prove his sincerity. This record doesn’t contain all relevant facts. (Unless Ramirez is being tried on legal grounds. Refer to below.
Q: Hypothetical: What if an inmate says that his religion is difficult to accept and brings this claim just before the scheduled execution?
R: A person may have the right to religious accommodation. RLUIPA and Religious Freedom and Restoration Act, which applies to federal governments, ask whether the claimant is genuine, if denying his request would cause a significant burden to his religious practice, and if denying the request will allow the government to pursue a compelling government interest. It is. It is absolutely vitalThese questions can be distinguished. Making mistakes in tough cases could lead to the perversion of the doctrinal analysis for cases that are more routine.
A claim could be filed by someone who, if true, will pass the substantial burden test. However, he may not be honest and could be making a claim in order to defer execution. What do we know? Look at the image above.
While the claimant might be genuine, it is possible to deny the accommodation without imposing a major burden. In the hypothetical conversion, this seems unlikely. Ramirez‘s case. It doesn’t necessarily mean the claimant won.
The government might have an interest in expediting the process, even if the claimant claims sincere intentions and that the denial would cause a significant burden to his religious practice. You could also try this: RamirezIn keeping the pastor from being near the inmate, and/or during execution.
The extent Ramirez (or other execution cases) poses unique burdens on the government and other parties because of the unique nature of executions, the Court should decide the case on the ground that the government has a uniquely compelling interest in minimizing risks during an execution—not on the ground that RamirezThis is not sincere (unless the Government can prove it is), and does not support the claim that the burden is minimal.
Q: Should these cases be decided case-by-case?
A: Yes. A: Yes. Both the government and claimants have to bear substantial legal responsibility. RLUIPA is applicable to all institutionalized people. For those who are being executed, there is no exemption. For death penalty cases, there are many procedural exceptions. They are not eligible for the RLUIPA exemption.
Q: The slippery slope, our old friend: will it be a decision? RamirezAllow other prisoners to file claims. Will that not clog up the Supreme Court’s docket, too?
A: Maybe. While we are respectful to the Supreme Court’s work, it isn’t in its “compelling government interest” under RLUIPA that making their job easier. It is the Court’s responsibility to follow law. Insincere claims can and should be rejected. They can, and should, be adjudicated if claims are true. Far more is at stake in these claims—for the claimants, for the law of religious accommodations, and for a decent society –than the efficiency of state execution procedures or the convenience of the federal courts.