Justices Balk at Inmate's Religious Liberty Case

            The Roberts Court has shown extraordinary solicitude toward religious freedom claims brought in such varied contexts as challenging public health restrictions on attendance at religious services, challenging in gay marriage cases the application of laws prohibiting anti-LGBT discrimination, and challenging restrictions on use of public funds for students to attend parochial schools.

            Conservative justices were far less receptive last week, however, to a Texas inmate’s plea to have his spiritual adviser present with him during his execution by lethal injection. John Ramirez asked that his pastor, Dana Moore, be allowed to pray audibly during the execution and to lay hands on him as he passes into unconsciousness.

            For many years, Texas authorities had allowed audible prayer and touch by prison chaplains hired to attend executions. In Ramirez’s case, however, Texas authorities notified his lawyer shortly before the scheduled execution that his pastor would not be allowed audible prayer or touch during the procedure.

            In imposing the new restriction, the authorities expressed concern about decorum and security despite utterly no evidence from years of practice that chaplains’ prayer and touch during executions had disrupted the procedure or interfered with the administration of the lethal drugs.

            Representing Ramirez during oral arguments at the Court last week (November 9), Seth Kretzer repeatedly stressed that point as he fielded challenging questions from conservative justices, including Thomas, Alito, and Kavanaugh, who had all voted in support of free exercise claims in other contexts.

Thomas began by questioning Ramirez’s sincerity: was he filing repeated free exercise claims to game the system, Thomas asked. Kretzer answered with indignation. “I do not play games,” he countered. “There’s been no dilatory tactics in this case.”

Roberts followed by clarifying that Ramirez was specifically asking that his pastor, Moore, be allowed to touch his foot as the execution proceeded. Alito then joined to imagine a succession of pleas from inmates.

“What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head?” Alito asked. “We're going to have to go through the whole human anatomy with a series of cases.”

Kretzer’s reply left Alito unsatisfied. “I take it what you said is, well, each one of these is different, factually different; prisoners have different religious beliefs; each one has to be analyzed separately,” the justice said. Kretzer said he knew of no religion that specified “a touch on this particular piece of the body.”

.“What we're talking about here is a laying-on-of-hands doctrine that the minister does with all of his congregants as they're nearing the point in time that they die,” Kretzer added. Appearing before a Court with six practicing Catholics, Kretzer might have noted an analogy to the Catholic sacrament of Extreme Unction. – the last rites that a priest performs to a Catholic believer.

Kavanaugh joined to reject Kretzer’s assurances that nothing would go wrong by allowing audible prayer and touch during the execution. Not good enough, Kavanaugh objected. “I'm still having problems with they're saying we should keep the risk to zero,” he said, “and you're saying, no, you should tolerate a little more risk because Alabama does it.”

The justices’ varied objections were in contrast to their responses to free exercise claims in a succession of gay marriage cases from the anti-gay baker in Colorado, the florist in Washington, and the printer in Kentucky – who all claimed religious objections to providing services for same-sex couples. None of the justices in those cases questioned the religious bona fides of the plaintiffs’ objections to same-sex weddings. Nor did any of the justices fret in the first of the cases that hearing one such case would invite a succession of cases, each one with a different fact pattern presenting the Court with different issues each time.

Kavanaugh’s favorable view of Texas’s compelling interest in a zero-risk execution differed from the Court’s blithe dismissal in the gay marriage cases of each state’s interest in enforcing its anti-LGBT discrimination laws. In the execution case, Ramirez’s free-exercise claim comes with a congressional mandate that the state can override his religious liberty only under a demanding standard. The Religious Land Use and Institutionalized Persons Act (RLIUPA), enacted in 2000, specifies that a state government can impose a substantial burden on a prisoner’s free exercise only to further a compelling interest and only if the restriction is narrowly tailored.

            Under that standard, Ketzer argued that Ramirez’ plea should certainly be granted. Supporting Ramirez’ stance, the Biden administration also argued that Texas had not met its burden under the federal law. “[O]ur recent experiences suggest that a categorical ban, like Texas appears to have, isn't the least restrictive means for doing so,’’ deputy solicitor general Eric Feigin told the justices. “To justify such a ban, Texas would have to offer -- its experts would have to offer state-specific reasons why it's necessary.”

            In the then-recent spate of thirteen federal executions, Feigin told the justices, the government “has allowed vocalization essentially throughout” the procedure. In addition, Feigin said, “[W]e've allowed physical contact one time briefly before the execution -- before the administration of the drugs began.”

            Feigin also contrasted the government’s attitude with Texas’s stance. For the most part, Feigin said, the government accommodated inmates’ requests regarding spiritual advisers. “Everyone was clearly satisfied enough that we avoided last-minute litigation,” the government lawyer said.