The Supreme Court must decide if it loves religious liberty more than the death penalty

11/7



The lethal injection chamber at the Ellis Unit, a maximum security prison in Huntsville, Texas, in 1991.© Paul Harris/Getty Images The lethal injection chamber at the Ellis Unit, a maximum security prison in Huntsville, Texas, in 1991.
Dunn v. Ray (2019) is the kind of Supreme Court decision that a comic book supervillain might write. Widely denounced, even by prominent conservatives, when it was handed down, Ray held that a Muslim inmate in Alabama could be executed without his imam present — even though the state permitted Christian inmates to have a spiritual adviser present during their execution.

As Justice Elena Kagan wrote in dissent, one of the Constitution’s “clearest command[s]” is that “one religious denomination cannot be officially preferred over another.” But that’s exactly what the Court permitted in Ray.

After witnessing the bipartisan backlash to this decision — the conservative National Review’s David French labeled it a “grave violation of the First Amendment” — the Court eventually started to slink away from it. In Murphy v. Collier (2019), decided only a few months after Ray, the Court temporarily blocked the execution of a Buddhist inmate in Texas — unless that state “permits Murphy’s Buddhist spiritual adviser or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”

Most recently, in Dunn v. Smith (2021) the Court seemed to suggest that all people who are being executed, regardless of their faith, must be allowed to have a spiritual adviser present. Although there was no majority opinion in Smith, even some of the dissenting justices conceded that they’d been beaten. “It seems apparent that States that want to avoid months or years of litigation delays,” Justice Brett Kavanaugh wrote in a brief dissenting opinion, “should figure out a way to allow spiritual advisers into the execution room.”

And yet, while the Court’s treatment of Domineque Ray, the inmate in Ray, appears to be discredited, the Court has yet to tie up several loose ends left over from that decision, including questions about which procedural barriers can be erected between death row inmates and their spiritual advisers, and questions about what such advisers may do to comfort a dying prisoner.

These issues are front and center in Ramirez v. Collier, which will be argued before the justices on Tuesday. Texas permits John Ramirez, the death row inmate at the center of this case, to have his pastor present during his execution. But the state neither permits the pastor to lay hands on Ramirez nor to audibly pray over him.

The fundamental question in Ramirez, in other words, is whether a death row inmate is allowed to actually receive spiritual comfort during his execution — or whether Ramirez’s pastor must simply stand there, doing little to ease a dying man’s final moments.

Ramirez wants this to be a case about religious liberty. Texas wants it to be a case about process.
Federal judges have a ghoulish duty. Whenever an execution draws nigh, judges are inundated with motions from capital defense lawyers trying to save their client’s life — or at least to ensure that the execution is performed as humanely as possible.

Because the Supreme Court is the nation’s court of last resort, many of these disputes eventually reach the justices. And so the justices must contend with a steady stream of emergency death penalty cases, often with only a few hours to review them.

The burden of spending years deciding who lives and who dies weighs differently on different justices. Some proclaim, as Justice Harry Blackmun did a few months before his retirement in 1994, that they “no longer shall tinker with the machinery of death.” Blackmun — and more recently, Justices Ruth Bader Ginsburg and Stephen Breyer — concluded, after decades of hearing last-minute capital appeals, that the death penalty is unconstitutional.

“Factual, legal, and moral error gives us a system that we know must wrongly kill some defendants,” Blackmun wrote.

In Ray, five conservative justices took the polar opposite approach. They attempted to quell the tidal wave of emergency death penalty motions by cutting off many inmates’ ability to file them in the first place. Domineque Ray’s error, these justices claimed, was that he waited too long to bring a lawsuit insisting that his imam be present at his execution.

It was a singularly unpersuasive claim — so unpersuasive that many observers accused the Court of offering a pretextual excuse to deny relief to a Muslim. Ray had filed his lawsuit just five days after a prison warden formally denied Ray’s request to have his imam comfort him during his execution. The Court’s explanation for its decision was quite literally unbelievable.

No doubt with the Court’s decision in Ray in mind, Texas spends the lion’s share of its brief in Ramirez accusing Ramirez of making minor procedural errors that supposedly doom his case. The brief spends an entire subsection, for example, arguing that Ramirez should lose because, when he filed a grievance asking to have his pastor present at his execution, he didn’t specifically state that the pastor should be allowed to speak.

Indeed, Texas spends only about a dozen pages of a 62-page brief arguing that its policy of forbidding a death row inmate’s spiritual adviser from speaking or touching the inmate can be justified under federal civil rights law.

The specific law at issue in this case is the Religious Land Use and Institutionalized Persons Act. It forbids prisons from imposing a “substantial burden” on an inmate’s faith, unless that burden is “in furtherance of a compelling governmental interest” and the prison uses “the least restrictive means of furthering that compelling governmental interest.”

That should be a difficult burden for Texas to carry in this case. Among other things, as Ramirez’s lawyers argue in his brief, until fairly recently, Texas permitted pastors to touch and speak to death row inmates while they were being executed. It even quotes from a book, authored by a former Texas criminal justice official, that recount past executions where chaplains placed their hands on the dying man’s knee. So it’s tough for Texas to argue that its current policy uses the “least restrictive” method of executing inmates, when it used to have a less restrictive policy.

To the extent that Texas even tries to defend its current policy, much of its defense rests on unlikely scenarios that could only occur if Texas’s own death chamber is run by rank incompetents. Texas argues, for example, that Ramirez’s pastor must not be allowed to touch him “in the event the inmate escaped his restraints, smuggled in a weapon, or otherwise became a threat in the chamber.” The fear is that “a spiritual adviser standing close enough to touch the inmate would be in harm’s way or in a position to assist the inmate.”

Texas, in other words, offers only a weak defense of its actual policy. It rests most of its argument on a hope that a majority of the justices will repeat their performance in Ray and rely on a procedural reason to deny Ramirez the relief he seeks.

So how is this case likely to come out?
The case for pessimism, if you are Ramirez’s lawyers, is fairly straightforward. In Smith, only the three liberals, plus conservative Justice Amy Coney Barrett, took a clear position in favor of religious freedom on death row. Roberts, Thomas, and Kavanaugh all dissented. That means that either Justice Samuel Alito or Justice Neil Gorsuch (or maybe both) silently voted in favor of the inmate in Smith.

But Alito and Gorsuch are both die-hard supporters of the death penalty. If you are a capital defense attorney and you are counting on their vote, you’re normally in trouble.

That said, there are also a few reasons for Ramirez’s lawyers to be optimistic that they can secure five votes.

One notable difference between Ramirez and Ray is that Ray arose on the Court’s shadow docket, a mix of emergency motions and other expedited requests that are typically decided in short order without full briefing or oral argument. Ramirez, by contrast, will be heard on the Court’s regular docket and will receive an oral argument.

That distinction matters because the Supreme Court ordinarily reserves full briefing and argument for cases that have either divided lower court judges or that involve unusually important questions of federal law. It’s unlikely that the Court would have agreed to hear Ramirez’s case if it thought that the correct answer turned on a minor procedural error that is unique to just this one case.

Although Smith did not produce a majority opinion, four justices — including Barrett — joined an opinion by Kagan that lays out a possible path forward in Ramirez. Kagan argued that states with restrictive policies governing spiritual advisers can simply adopt the practices used in other states. “In the last year, the Federal Government has conducted more than 10 executions attended by the prisoner’s clergy of choice,” Kagan noted — the implication being that states could copy the federal government’s procedures and do the same.

A state that fears a particular member of the clergy may present a security risk “can do a background check on the minister; it can interview him and his associates [and] it can seek a penalty-backed pledge that he will obey all rules,” Kagan wrote. But it can’t root its policy in speculative fears that a pastor may help an inmate stage a daring escape in the middle of their execution.

So while the outcome of this lawsuit is not entirely certain, Ramirez has good reason to hope that, in his final moments, he will receive spiritual comfort.