The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who Will Argue in Favor of the Free Exercise Clause in Ramirez v. Collier?
Michael McConnell and the Becket Fund filed a motion to present oral arguments before the Supreme Court.
In September, the Court granted cert in Ramirez v. Collier. This case presents the question whether Texas can prohibit a chaplain from laying his hands on a prisoner during an execution. And the Court accelerated oral arguments, which have been set for November 1, 2021. This case involves claims under both the Free Exercise Clause and RLUIPA.
Ramirez is represented by Seth Kretzer and the UT Supreme Court clinic. His brief focuses entirely on the RLUIPA claim. Indeed, a footnote states:
Petitioner's RLUIPA and First Amendment claims seek the same relief, JA 101-02, so petitioner's brief frames arguments in terms of RLUIPA's requirements to streamline the analysis.
The United States filed a brief in support of neither party. The SG's brief did not present any arguments based on the Free Exercise Clause. Employment Division v. Smith isn't even cited. The SG filed a motion to participate in oral argument. Both parties consented.
Pursuant to Rule 28 of the Rules of this Court, the Acting Solicitor General, on behalf of the United States, respectfully moves that the United States be granted leave to participate in the oral argument in this case as an amicus curiae supporting neither party; that the time allotted for oral argument be enlarged to 65 minutes; and that the United States be allowed 15 minutes of argument time. Petitioner and respondents have each consented to this motion and have each agreed to cede five minutes of argument time to the United States.
Two days later, the Becket Fund for Religious Liberty sought leave for Professor Michael McConnell to present argument on behalf of amicus. The brief argues that there is no adversity on the Free Exercise Clause issue, and the Court would benefit from arguments by McConnell:
Granting this motion would materially assist the Court by providing adversary presentation on three issues central to the resolution of this case and not substantially addressed by Petitioner or the United States: (1) the Free Exercise Clause claims (on which this Court granted certiorari); (2) the role historic religious practices should play in resolving the merits of Petitioner's claims; and (3) the role historic equity practice should play in resolving Petitioner's claims.
Becket contends that the prisoner's rights are protected by the Free Exercise Clause, without regard to statutory protections:
As Becket explained in its amicus brief, there is a significant question as to whether the First Amendment's Free Exercise Clause protects the religious exercises at issue—audible clergy prayer and clergy touch—independently of statutory protections subject to legislative modification. Becket's brief described centuries of Anglo-American legal history, including pre-Founding history, placing these exercises at the center of historical practices and understandings with respect to clergy access for the condemned. Becket has thus argued that just as historical practices and understandings guide the courts in interpreting most other parts of the Bill of Rights, including the other Religion Clause, those historical practices and understandings should support the Free Exercise claims here. Those arguments are both central to this appeal and unique.
The brief also makes an obvious point: this appeal does not only affect Ramirez, but will set a nationwide standard.
Amicus argument should remain the exception, but this case is one of the exceptions that prove the rule. This appeal has proceeded on an atypical schedule, and the Court will benefit from hearing arguments that better elucidate a crucial constitutional issue that affects many litigants. Moreover, neither Petitioner nor the United States (should it be granted time to argue as amicus) has indicated that it will present argument on the granted petition's First Amendment claims, the role of historic religious practices in defining clergy access to the condemned, or the role of historic equitable doctrines in deciding what relief this or other courts may give Petitioner. Respondent's opposition to those arguments—and the Fifth Circuit's treatment of them below (in particular the Free Exercise Clause)—will therefore receive no adversarial testing at argument. Becket respectfully submits that, under these unique circumstances, the Court would benefit from adversarial oral argument by Professor McConnell on Becket's behalf.
Professor McConnell is perhaps the ideal amicus to present arguments here, on which there is no adversity. He is a leading scholar in this area, and has been cited in many Free Exercise cases. Especially since the case is being litigated on an expedited basis, more voices will help the Court reach an informed decision.
