Back to Near-Unanimity as to Religious Exemptions, in Today’s Condemned Inmate Case

Religious exemption cases – high profile sharp splits (such as Hobby Lobby Oder Fulton v. City of PhiladelphiaIf so, what is the outcome (in)? Hobby LobbyThe reasoning (in) and the corresponding citations FultonThis can lead people to believe that the Supreme Court is always divided by religious exemption claims. This is not true, according to unanimous decisions in Gonzales v. O Centro Espírita Beneficente União do Vegetal(2006) HoascaHallucinogen (also known as “Hallucinogen”) Holt and Hobbs (2015). A win for a Muslim prisoner who is seeking to be exempt from the no-beards policies.

Today’s 8-1 Decision in Ramirez v. CollierThe Court held that a condemned killer was entitled to have his Baptist Pastor in the execution room to hear and pray, as well as lay hands on him throughout the execution. It also shows how the Court is still able to be almost unanimous in religious exemption cases. The case was brought under RLUIPA (Religious Land Use and Institutional Persons Act), which provides religious accommodation from prison rules, except where the government can prove that it is essential to protect a government interest. Some excerpts:

We believe Ramirez will succeed in his first attempt at proving it. [for purposes of getting a preliminary injunction]His religious needs are “sincerely grounded in a religious belief,” he said. Ramirez wants his pastor to lay hands upon him and offer prayers for him as he executes him. Both of these are religious practices that have been practiced for centuries. Ramirez stated that “it’s part of my faith to have a spiritual advisor touch me when I’m dying or sick.” Ramirez’s pastor, Pastor Moore, has been ministering to him for the past four years. He agrees that touch and prayer are “a substantial part of our faith tradition, as Baptists.” And both the Court of Appeals as well the District Court believed that Ramirez had a genuine religious reason for his requests.

Ramirez, in 2020 filed a complaint that the respondent’s argue against. Ramirez brought the case while Texas had its previous execution protocol in effect. It prohibited any spiritual advisors from being present at the execution chamber. The complaint sought Pastor Moore’s presence and prayer in the chamber, but disclaimed any need for touch … (“When Plaintiff Ramirez is executed, Pastor Moore will pray with him. He is not allowed to touch Ramirez in execution chamber .”).. This shows, according to respondents’ perceptions that Ramirez is not genuine in his request for touch.

Ramirez responded that the 2020 lawsuit was incorrect and that he would have changed it if the litigation had continued. But the lawsuit was not filed because both parties agreed to dismiss without prejudice the suit less than one week after the filing. Ramirez’s previous complaint’s precise statement is probative regarding the question of sincerity. Changing litigation positions might suggest that a prisoner may be trying to deter rather than perform a religious act. Under the facts of this case, however, we do not think the prior complaint—dismissed without prejudice and by agreement one week after it was filed—outweighs the ample evidence that Ramirez’s beliefs are sincere. Respondents do not dispute that any burden their policy imposes on Ramirez’s religious exercise is substantial….

Ramirez’s likely success in proving that Texas’s policies substantially constrain his right to exercise his religion means that respondents will need to prove their refusal to allow the practice to continue: (1) that the act furthers “a compelling public interest”, and (2) that the respondent uses the most restrictive method to support that compelling public interest. RLUIPA says that the government cannot relieve this burden by pointing at “broadly expressed interests.” Instead, it must “demonstrate” that the compelling interests test has been satisfied by the application of challenged law [to]”The particular claimant, whose sincere exercising of religion is being substantially burdened.” …

However [the]Long history [of audible prayer at executions]Officials in prison insist that the simplest way of advancing two imperative governmental goals is to ban audible prayer from the execution chamber.

The FirstPrison officials state that they must maintain absolute silence inside the execution chamber in order for them to be able to listen in through an overhead microphone. The prison officials claim that an audible prayer could hinder their ability to detect signs of trouble and distract from emergency situations. It is not difficult to see that the prison authorities have an interest in efficient response during emergencies and monitoring executions. Audible prayer can pose a greater risk during lethal injection, which is delicate. But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests….

SecondOfficials at prison say that they could allow spiritual counselors to pray loudly during executions. This would give them the chance to “exploit the situation to make statements to witnesses or officials rather than the inmate.” The officials note that these statements may cause more trauma to victims’ families or disrupt executions. It is clear that there are compelling interests in keeping executions safe and maintaining dignity and order in the chamber. Respondents fear that Pastor Moore will cause such disruptions, but there are no records to support this. Thus, respondents’ argument boils down to conjecture about the future actions of a possible spiritual advisor. This speculation does not suffice to satisfy respondents’ burden and doesn’t engage in the type of case-by–case analysis required by RLUIPA.

Additionally, it appears that there are less restrictive methods to address any concern. Prison officials could impose reasonable restrictions on audible prayer in the execution chamber—such as limiting the volume of any prayer so that medical officials can monitor an inmate’s condition, requiring silence during critical points in the execution process (including when an execution warrant is read or officials must communicate with one another), allowing a spiritual advisor to speak only with the inmate, and subjecting advisors to immediate removal for failure to comply with any rule. The prison officials may also ask spiritual advisors for penalty-backed commitments that agree to adhere to all limitations.

Given the current record, respondents have not shown that a total ban on audible prayer is the least restrictive means of furthering their asserted interests….

The categorical ban of religious touching in execution chambers by respondents is not a good idea. The three main governmental interest they cite are security at the execution chamber and the prevention of suffering. They also want to avoid further traumatizing the victims’ families. These three objectives are admirable. However, the respondents failed to prove that a strict ban on touch would be the best way to achieve any of those goals. [Details generally omitted, but here’s an important general point: -EV]

It is important for the government to maintain dignity and solemnity in the execution chamber, as we’ve already stated. The issue here is whether Pastor Moore can touch Ramirez’s foot or lower leg in the execution chamber. Respondents aren’t concerned that this specific act could cause trauma. Respondents don’t believe this particular act will cause trauma. Instead, they are more concerned with the other potentially more difficult requests. RLUIPA however requires that the courts consider only one case at a given time and “only the particular claimant whose sincere exercising of religion is being substantially burdened.” …

Justice Kavanaugh wrote a fascinating concurrence, which I will separate from the majority opinion. Justice Sotomayor supported the majority opinion on certain procedural questions that are not directly related to RLUIPA. Justice Thomas disapproved in procedural matters but also voiced doubt about Ramirez’s sincerity.

Ramirez’s “evolving litigation position” is accepted by most of the group.[n]The majority concludes that the “ample” evidence is insincerity but “is evidence of insincerity”. However, the majority of countervailing evidence fails to show any sincerity. [Ramirez] is entitled to … relief.” According to the majority, the primary argument is that the laying on of hands is “traditional for[m]Moore also engages in religious exercise.” However, Ramirez’s alleged belief in “traditional” religion is not relevant. RLUIPA’s protection, such as “[t]This First Amendment protection[,]”It isn’t restricted to orthodox religios practices.” Ramirez’s personal beliefs are relevant. Believes!That it is “part” of [his]Faith to Have [his]Lay your hands on a spiritual advisor [him].” To that point, the majority cites nothing other than Ramirez’s bare grievance—precisely the same evidence that shows the “evolving litigation positio[n]”The majority accepts this as evidence of insincerity. Thus, the only relevant evidence in this case cuts strongly in favor of finding that Ramirez is insincere….