Religious Sincerity and Executions

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My good friend Nathan Chapman passed along these thoughts on Ramirez, which I'm posting with his permission.

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John Henry Ramirez was convicted of murder and sentenced to death by a Texas court in 2008 for killing Pablo Castro. Ramirez now argues that he has a right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment to have his pastor audibly pray and "lay his hands" on him while he dies. 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. I joined an amicus brief with other scholars arguing that it does.

The Court heard oral argument in the case on November 9. Several of the justices expressed concerns that Ramirez's claims may not be sincere, that courts do not have the competence to adjudicate a religious accommodation claimant's sincerity, and that finding for Ramirez would lead to a flood of religious liberty suits (including those based on insincere claims) to delay executions. It was clear from the questioning that some of the justices were wrestling with a legal question the Court has never squarely addressed: may, or can, a court adjudicate a religious accommodation claimant's sincerity? In short, yes. When a claimant's sincerity is put in question, courts should decide the issue without casting judgment on the accuracy of the claimant's religious beliefs. As the Court considers 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 should rely on several principles about adjudicating religious sincerity.  (Much of this is drawn from an article I published several years ago in the Washington Law Review.)

  1. A religious accommodation claimant must be sincere. 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.
  2. The Establishment Clause does not prohibit the government from determining whether a claimant is sincere. Justice Jackson eloquently argued that it does in a dissenting opinion in Ballard v. United States, 322 U.S. 78 (1944). The thrust of his argument was that a court cannot evaluate religious sincerity without also evaluating the truthfulness of the religious claim. Sometimes justices have implied the same in oral arguments and dicta. This is wrong. There is a difference between sincerity and accuracy. The government may not evaluate the accuracy of a religious claim (did Moses really receive the Ten Commandments from God?) without raising grave Establishment Clause concerns. Refusing an accommodation because the government believes a religious belief is inaccurate amounts to official disfavor of one religion and a tacit orthodoxy. Not so with sincerity (does the claimant believe the Ten Commandments are from God?). The sincerity inquiry is not about the accuracy of the belief, but whether the claimant actually holds it.

The government has plenty of experience determining religious sincerity. Draft boards adjudicated the sincerity of those seeking conscientious objector status during Vietnam. Prison officials occasionally determine religious sincerity. Courts do too, but rarely. Why not more often? Most religious accommodation claims are against the government, and the government rarely challenges a 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. Prison officials and employers facing religious accommodation claims tend not to have all of these concerns, and they have a powerful interest in avoiding accommodations (security and money, respectively), so they are more likely to challenge a claimant's sincerity. Case in point: many employers mandating the COVID-19 vaccine make religious objectors fill out lengthy questionnaires to weed out phony claims.

  1. Courts are professionally competent to determine sincerity. They do it all the time in cases requiring a showing of deliberate dishonesty. There is nothing about religious claims that make them especially hard. Religious beliefs are important, personal, and sometimes unfamiliar. These are reasons for courts to tread lightly and humbly, but not to avoid the question altogether.

So the government can, may, and sometimes must adjudicate sincerity in religious accommodation claims. But how? What evidence is salient? How to avoid a judgment about the accuracy of a claimant's beliefs?

  1. Consistency is relevant. Has the claimant played the hokey-pokey with the belief at issue? But: people change their religious beliefs. The freedom to do so is part of religious liberty.
  2. Religious context. Is there a community or tradition that holds the belief or is it idiosyncratic? The government may not favor large or traditional religions over small and novel ones. If the religion is a party of one there may be more reason to suspect that it is a smokescreen. But: most religious traditions have many sub-traditions. What could be more American than religious entrepreneurship? Disagreeing with religious authorities or tradition doesn't mean someone is insincere.
  3. Incentives. Are there powerful non-religious reasons to make the claim? To wear a yarmulke, not so much. To avoid the military draft? Delay execution? You bet. This doesn't mean such a claim is fake, just that it might warrant more scrutiny.

In light of these principles, let's consider some of the justices' questions in Ramirez. (I paraphrase.)

Q: What if we think Ramirez is insincere?

A: Remand the case to the trial court for discovery on his sincerity. The record does not disclose all the relevant facts. (Unless the Court wants to resolve the case against Ramirez on legal grounds. See below.)

Q: Hypothetical: what if an inmate claims that his religion requires three months to convert and he brings the claim right before a scheduled execution.

A: He may be entitled to a religious accommodation. Under RLUIPA and the Religious Freedom and Restoration Act (which applies to the federal government), the questions are whether the claimaint is sincere, whether denying the request would be a substantial burden on his religious exercise, and whether denying the request is the least restrictive means for the government to achieve a compelling governmental interest. It is absolutely crucial to distinguish between these inquiries. Mistakes in hard cases will metastasize and pervert the doctrinal analysis in run-of-the-mill cases.

Someone could bring a claim that, if sincere, would pass the substantial burden test. But he might not be sincere: he might be ginning up the claim to delay execution. How do we know? See above.

The claimant could be sincere but denying the accommodation may not impose a substantial burden on the exercise. This seems unlikely in the conversion hypothetical and in Ramirez's case. But it doesn't mean the claimant wins.

Even if the claimant is sincere and the denial would be a substantial burden on his religious exercise, the government may have a compelling government interest in avoiding the delay. Or, in Ramirez, in keeping the pastor away from the inmate and/or quiet during the execution.

To 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 Ramirez is not sincere (unless the government can show he isn't) and not on the ground that this is not a substantial burden.

Q: Must these cases be decided on a case-by-case basis?

A: Yes. The claimants' and the governments' legal burdens are fact-intensive. RLUIPA, in particular, applies to all institutionalized persons. There is no exception for those being executed. There are plenty of procedural exceptions and additional appellate review for death penalty cases (and rightly so). But there is no RLUIPA exception for them.

Q: Our old friend the slippery slope: won't a decision for Ramirez lead other inmates to bring claims, and won't that clog the Supreme Court's docket?

A: Maybe. With all due respect to the Supreme Court, making its job easier is not a "compelling governmental interest" under RLUIPA. The Court's job is to apply the law. If claims are insincere, they can (and should) be dismissed on that ground. If claims are sincere, they can (and should) be adjudicated. 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.

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  1. I agree with the thrust of this post. However, in some cases courts should evaluate the accuracy of a belief.

    Consider a hypothetical where someone has a religious objection to a getting a COVID vaccine because they sincerely believe the vaccine was made from the remains of murdered adults. As a matter of fact, no vaccine is and courts should be able to reject the objector's claim on that basis.

    I'm having difficulty distinguishing the above hypothetical with the belief that Moses received the Ten Commandments, which I agree raises grave Establishment Clause issues if courts reject it as inaccurate. But perhaps a workable difference is the latter cannot be definitively determined.

    1. FICTIONAL ACCURACY

      If the Handmaid's Tale is good as "authority" for arguing pending abortion issues, why not a Moses movie ... like ... The Ten Commandments. Seen it with your own eyes, ergo factually sincere. Good to go. Or rather, stay out of the chamber.

      Not so sure about the concept of "run-of-the-mill" lethal injection cases. Are any so? Should they be? And metaphorwise ... killing mill?

    2. I disagree. When you can evaluate or question the "accuracy" of a belief, you can essentially deny the entire religion.

      Let's use a simple example. Muslims believe Friday is God's holy day. They clearly have a sincere belief there. But, then you as a judge, argue "That's not accurate. It's clear from your religious texts that Sunday is the Holy day. Your request for religious accommodation on Fridays is denied, because your belief isn't accurate".

      See the issue.

      1. A similar case came up on Massachusetts. The trial judge heard evidence on the significance of Sunday in Christianity. Priests or other church officials testified that the employee who wanted the day off was not obliged by church doctrine to take the day off. The appeals court said the judge should not have heard the evidence. I believe the larger dispute was then resolved by legislation, making it much easier for an employee to take religious holidays off work.

        1. Then you have Jews who are not supposed to work on Saturday and some Christian sects that do believe Sunday should be free of work (see Chick-fil- A and many past Sunday closing laws throughout the country).

      2. In your hypothetical, the court would have to interpret religious doctrine on which day is God's holy day, which the Establishment Clause almost certainly forbids. That's easily distinguished from my hypothetical in which the court rejects the belief entirely on the basis of the secular fact that vaccines are not made from murdered adults. (CJColucci made the same point below). The harder case is the belief that Moses received the Ten Commandments which in theory is a testable secular claim, but in practice cannot be verified one way or the other.

    3. Josh:

      Your hypothetical does not involve the correctness of a religious belief -- that one should not take vaccines made from the remains of murdered adults. That is a religious belief, and, assuming sincerity, no court could judge the religious correctness of that belief. But the belief that a certain vaccine was, in fact, made from remains of murdered humans is a belief about secular facts about the world, not a religious belief. Courts can decide that the vaccine in question is not, in fact, made from the remains of murdered humans, so the sincere religious objection is ill-founded, not as a matter of religion, but as a matter of fact. (One could imagine a hypothetical religion that not only forbade use of such vaccines, but held as a matter of religious doctrine that all vaccines are, in fact, such vaccines, and that would be a different matter.)

      1. I would hope that courts, for the same reason, could reject a claimed religious objection based on a religious belief that either 1) forbade the use of a vaccine from murdered adults when the vaccine wasn't made from murdered adults, or 2) a vaccine is made from murdered adults when it is not.

  2. Oh this is an interesting one because SCOTUS really really likes giving religious people a get-out-of-laws-we-don't-like pass, but they also really really like killing people. During covid they could do both, give religious people a pass to kill people. But in this case there is a conflict. My guess is that they will issue a narrow ruling for the state that effectively says that they love religious exemptions, but in this case killing people wins.

    1. I do find it interesting how suddenly the liberal justices all found they needed to uphold the religious beliefs, in order to prevent the execution. But felt no need to uphold religious beliefs in any other context.

      1. Which is bullshit. Though of course the conservative Justices have never questioned sincerity before, but suddenly, when it involves an execution, they are all worried about it.

        1. Or perhaps in this case, there is reason to do so, whereas in other cases there is no reason. Hobby Lobby, for example, has in its corporate charter that it will be run by Christian princples, and as a matter of corporate policy closes on Sunday. The cake guy from Colorado had turned down other cakes before, including Satanic and Halloween cakes, that he considered against his religion. Those litigants had walked the walk, even when it was to their detriment, well before the issues in the case had come to light.

          1. I suspect both sides use whatever wiggle room there is in the text and precedent to reach a desired outcome. That being said, there is one fact that distinguishes Masterpiece Cakeshop: the religious exemption was governed only by the Free Exercise Clause, not RFRA.

          2. You need positive evidence in the record to create a reason to do so.

            Because if you just require some shibboleth you're creating some perverse incentives to evince zealotry.

            I haven't seen any evidence in the record, just speculation.

            1. The prison situation already makes this suspect. Prisoners notoriously adopt new "religious" scruples to get their way. And IIRC, the same person was slated to be executed before and never came up with what happened in the latest try, that ended up before SCOTUS.

              As I said above, Texas should have just accomodated him and gotten on with the execution. My view is, give them anything they want that is possible and does not hold up the execution, and then be done with it.

              1. 'this situation destroys the presumption' seems a pretty bad idea when we generally require individualized evidence.

                Not to mention what I've been saying about how this inquiry easily turns into a 'funny religions need to bend over backwards while Christianity is assumed.'

              2. And IIRC, the same person was slated to be executed before and never came up with what happened in the latest try,

                Death row inmates often always do come up with last minute arguments as stalling tactics, but they also suffer from a Catch 22, which is that if they file a claim too early the courts will say it isn't ripe. Until the state scheduled the execution and said "this is the protocol," he couldn't sue to have a minister in there with him.

  3. Religious context. Is there a community or tradition that holds the belief or is it idiosyncratic?

    In light of the Reverend Kirkland, this too makes some sense. However, categorically rejecting idiosyncratic beliefs is precluded by Thomas v. Review Board. At best, it might open a door to further analysis that still has the burden to show that Kirkland's church and its beliefs were created to game the system.

    1. I've wondered about that. It's one thing to say that I have a religious objection to eating pork, that I think God does not want us to eat pork. It's another thing to say that I, as a Catholic, can't eat pork because the Catholic Church forbids the eating of pork. In the first case, there is no ascertainable fact except whether I believe what I'm saying. In the second, it is an easily provable fact that the Catholic Church does not forbid the eating of pork. We could put the Pope on the stand to say so. That wouldn't be merely expert testimony, it would be, since he is the Pope, a performative utterance, establishing by his saying so that the Catholic Church does not forbid the eating of pork. Yet we treat both cases alike. I'm not sure why. If a litigant claims institutional authority for his belief, rather than personal understanding of the will of God (about which we can say nothing except whether the belief is real or feigned), it seems that it should be open to courts to accept proof to the contrary. Or at least to factor such proof into resolving the sincerity question

      1. Yes, but that argument of yours only addresses a narrow scenario in which a litigant uses the wrong magic words. Unless the litigant actually says something specifically verifiable — "This specific person told me I had to do X" — that issue won't arise. If he says, "I believe that…" or "According to my understanding of my religion…" or "God teaches that…" or anything of that nature, your hypothetical wouldn't come into play.

        1. True, but I think courts would shy away even from my hypothetical, probably because it would be too hard to draw a line between easily verifiable religious propositions -- we all know that Catholics can eat pork if they want -- and disputable ones.

    2. Which is exactly what the article above asserts, Josh. Idiosyncratic beliefs may trigger extra scrutiny to verify their true sincerity. Widely-held beliefs are more plausibly assumed to be sincere. But it's only a possible trigger for scrutiny, not a categorical rejection.

  4. "would lead to a flood of religious liberty suits (including those based on insincere claims) to delay executions. "

    Why should that be? The guy gets one chance to tell what he wants. And then just let the clergyperson in to do whatever he wants, and then fry the guy.

    If Texas had not made such an issue about it, the guy would be dead by now.

    1. Texas doesn't typically allow any third party in there during the execution with their hands on the subject.

      Basically, they're worried that at the last second, someone will interfere with the execution by pulling out the needles, ripping off the straps, etc.

      1. And has that happened anywhere?

        And what if it does? Arrest the guy and carry on.

        1. Until pretty recently I think every state either prohibited anyone or unsanctioned clergy in the execution chamber.

          I wonder how that would work if a state still used a firing squad, electric chair, gas chamber or the recently suggested nitrogen chamber?

          1. No. Clergy at executions has a very long tradition. The only historical restrictions were for the protection of the clergymen themselves. They stood aside, for example, at a firing squad to be safe from ricochets. No such restriction is applicable to an execution by lethal injection.

            Even having an execution "chamber", much less restricting access to it, is a very recent innovation.

  5. I see no reason that sincerity of a professed religious belief should not be treated as an ordinary question of fact, subject to adversarial testing and with the burden of proof on the believer. The same is true of a claim that a regulation imposes a substantial burden on religious belief. Let the parties develop an evidentiary record, including the crucible of cross-examination.

    1. Excuse me, I misspoke. That should be a substantial burden on religious exercise.

    2. As evidenced by all the other examples of evaluations of sincerity (conscientious objector status, etc), it is an ordinary question of fact potentially subject to adversarial testing. Like those other examples, however, the burden of proof is (and should be) on the government to demonstrate that the belief is insincere.

  6. Just as an aside, I wonder whether Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kavanaugh and Barrett take the doctrine of transubstantiation literally.

    1. Transubstantiation, no inflation, inflation will be temporary, mission accomplished.

      There's all kinds of religious BS floating around for true believers to get behind the priests raking it in.

  7. Re: transubstantiation

    Good question, but not just religious, though arguably doctrinal nonetheless: When does the human fetus transubstantiate into a 14th Amendment person?

    There are a couple of interesting amicus curiae briefs by Europeans in Dobbs that show how the European Court of Human Rights defers to the member states (N=47) to make their own determination in the absence of group consensus. Nor do they recognize a fundamental right to abortion, which was illegal when the Convention was adopted (cf. originalalism/orig. intent as to much older U.S. constitution & bill of rights).

    The trans-atlantic amici also point out that the European Human Rights Court hasn't ruled one way or the other on whether the foetus/unborn child (terms used interchangeably) is covered by the right to life (Article 2 of the Convention), which is also why there is leeway ("margin of appreciation") for the member states to have abortion regulations in varying degrees of stricture. Note also that Article 8 (right to respect for private and family life) has not been held to encompass a right to abortion, though implicated in abortion regulation. In other words, there is no equivalent of a Roe-Casey-type constitutional right in the European Human Rights Charter. Member states may protect human life before birth through their own domestic laws.

    Also of note now that we have the Ex Parte Young and 11th Amendment re-envisioning discussion: European rights claimants can sue their own government/country. It's a very busy court: More than 50,000 claims per year.
    https://www.echr.coe.int/Documents/50Questions_ENG.pdf

    1. The ECtHR has more judges - one for each state party - and over time the ECHR (i.e. the Convention) has been updated to make it easier to filter out the unmeritorious cases quickly.

      Last year they decided 39,000 cases, but only 1900 of those were merits decisions. https://www.echr.coe.int/Documents/Stats_analysis_2020_ENG.pdf

    2. Since the court’s conservatives have in recent years taken great care to re-affirm the doctrine that extraterritorial aliens traanssubstsntiate into 14th Amendment persons when they cross the border, and hence none of the Europeans are 14th Amendment persons so long as they are outside the US, I don’t think anybody on the Court is going to question the doctrine that fetuses transsubstantiate into 14th amendment persons at birth.

      The questions the court is dealing with over abortion have a completely different character. Although the court’s conservative majority agrees that the Europeans aren’t 14th Amendment persons, it would nonetheless uphold laws against harming them, not just because of the United States’s interest in good international relations, but because of the independent idea that harming human beings, even those without 14th Amendment personhood status such as Europeans, is morally wrong. For example, US law prohbits travelling in international commerce to engage in sex with minors as defined by US law even in countries where the age of consent is lower and it’s permitted. There is no possible international relations interest in such a law, as a country is unlikely to resent the United States for conduct its laws permit. Nor can there be any question of protecting persons, as 14th Amendment personhood doesn’t apply. The only possoble basis for such laws is the idea that certain harmful actions are intrinsically morally wrong, not in any way because those affected are legally 14th Amendment persons, since they aren’t, but simply because they are members of the human species.

      That’s the appropriate analog of the issues involved in the constitutionality of abortion laws.

  8. I'm not sure I agree.

    Clearly there is a category of situations where religious sincerity can be challenged based on what the person said or did in the past. They may not have behaved consistently with their claimed belief, or they may have said that they didn't believe what they now claim to believe.

    But I would think that that's going to be pretty rare (though people can be quite stupid). There must be many other situations where a normal person's assessment of the sincerity of a religious belief is essentially "that's bonkers, there's no way he believes that!"

  9. How come atheists don't get equal protection under the law?

    The Texas rule should be that the prisoner gets to choose one person to be in the chamber with him, no religious connection necessary.

    There are many other religious exemptions, meaning that atheists have fewer rights than religious people.

    1. If there were established atheist churches with community-wide doctrines, it might work. There might be, actually, I don't know.

      All we need, then, is someone to try it!
      Any volunteers to join an atheist church, go to Texas, commit a capital crime, and get convicted?

      1. If there were established atheist churches with community-wide doctrines, it might work. There might be, actually, I don't know.

        Are you saying that a person can't have religious beliefs unless there is some kind of church and community with authority that shares those beliefs? I don't think that religion would be an individual right if that were the case.

        1. I think that, in the absence of a church and community, it becomes difficult to convince people that your "deeply held" religious beliefs were not made up on the spot.

          Some things you can demonstrate in daily life - keeping kosher, for example - but for things like "what needs to be done when a believer dies" isn't the sort of thing your individual beliefs can have much of a precedent for.

  10. Isn't sincerity of belief a rebuttable presumption, not some total ban on the finder of fact?

    1. And yes, that presumption is warranted. Otherwise minority or nonmainstream faiths are going to be in for it.

      1. It would seem to be particularly appealing to a death row poisoner to invent a religious belief to forestall a coming execution. A sudden revelation from God commanding some elaborate procedure prior to an execution.

        I recall an old TV show Death Valley Days where a man about to be hanged was offered his choice of a last meal. If I remember correctly he chose Oysters, which had to be brought from a great distance, delaying his execution. That turns out to be is a real legend.

        1. TV shows are not really a great way to base policy.
          Neither is speculation.

          Again, what this does is favor mainstream Christianity. Because that's not 'weird' and thus not suspicious.

        2. Beyone and eye for an eye, what about more readily transferred body parts?

          What if the newly devised devinely-inspirited religion requires that the condemned first donate one of two (or three, if applicable) kidneys to make amdends for the murder he or she as admitted to and is now repenting for? Wouldn't this additionally have a social benefit, given the dearth of kideny supply relative to need (measurable by numbers on recipient waiting list)? And then there is the concept of restorative justice. Given back for that which was taken. At least in small life-prolonging measure.

          How does the community benefit from state-sanctioned killing of captives?

  11. I disagree with the idea that there's nothing extra hard about determining /religious/ sincerity:

    "Courts are professionally competent to determine sincerity. They do it all the time in cases requiring a showing of deliberate dishonesty. There is nothing about religious claims that make them especially hard."

    In any other context, the plausibility of a belief is a helpful factor in determining whether the person is sincere or not. It's more probably that someone is sincere when they're saying something that's believable (unless they're crazy).

    But with religion, most religious claims are implausible (that "piece of bread" is really, literally, the "Body of Christ"). In any other context, if some average Joe accountant told you he believed that you'd say "You don't seriously believe that." But when it comes to religion, he really does.

    So religious sincerity /is/ more difficult to adjudicate than others. And it also has an extra danger of Judges - who already are certain they are the smartest ones in the room - getting things wrong. Judge Posner (totally inappropriately) basically told a lawyer that the University of Notre Dame was getting the Catechism of the Catholic Church wrong.

    So you might need to adjudicate religious sincerity some times, but I have no confidence that the proposal outlined here will do a good job doing that.

    1. Well, the beauty with established religions, especially the ones that are also states (or shall we say, subjects of international law, like the Holy See), you can reference their official doctrine/church law to determine the compatibility of individual claims. It's not all hocus-pocus for nonbelievers and nonascertainable. Take, for example, canoncial law governing marriage validity, an issue that secular legal regimes cover likewise. The analogy is almost perfect. Another scenario would be contractual choice-of-law where the chosen system of rules is that of a religious community. Agreement to arbitrate and have priest-pastor-tribal-ancestor-channelling-wiseman as arbitrtor anyone?

  12. I think courts can decide sincerity, and have to to prevent floods of fraudulent religion claims, but nonetheless there are practical limits on their ability to do so.

    I think one key relevant question is whether the belief existed before the context came up, or was invented in response to the context.

    I recognize a problem with this approach is thst it tends to favor traditional, communal religions with established literatures on proper conduct over novel or individualized religions where people indeed tend to make things up in response to the situations they encounter. For example, Christians would get to refer to teachings of and commentaries on Jesus. Jesus’ teachings often arose in response to various events occurring in his life. So while a follower of Jesus would be able to prove sincerity by this standard, Jesus himself might have a very hard time.

    The problem, as Justice Jackson noted, is that it really it is indeed very hard to distinguish the saints from the sinners, the prophets from the frauds.

    But society needs evidentiary principles to prevent a flood of humbugs seeking flat-out exemptions from the law. Requiring that the religious principle have prior existence is a neuutral and rational way to do this, as one possible gatekeeper for identifying sincerity.

    1. Given this, I think the answer to the inmate who wants to convert and needs time is likely “no.”

      First, the fact that this idea came up shortly before execution goes against sincerity for the reasons stated above.

      Second, the state has a compelling interest in executing its laws. The interest here is the same as the state’s interest in imprisoning the person whose religion prohibits imprisonment. Any religious accommodation can only involve somethin incidental to the main penalty, it cannot be a way of completely getting out of or a major postponement of the penalty itself. The condemned prisoner might get a day’s postponement to not be executed on the sabbath or something. But definitely not 3 months.

      Third, under Yoder, major deviations to core state requirements require being relatively free of crime and self-sufficient. At some point, the state’s interest in ensuring its laws are executed outway a capital criminal’s interest in finding himself before dying.

      I see a distinction between the presence of the chaplain on the one hand and things like postponing execution 3 months. The affect on the state’s ability to execute its laws is much more attenuated in the one case than the other. So reason 2 or 3, which involve getting complete outs on core state requirements, may not come into play as much for the chaplain request as they would for a 3-month postponement.

      I think the Court could say yes to the chaplain request without saying yes to the prisoner who wants time to convert, and would have a principled basis to do so.

  13. There is also the Yoder standard. The Supreme Court noted in Yoder that the Amish were generally self-sufficient and law-abiding, and this was part of the reason justifying their exemption from school requirements.

    I think that people can lose their ability to support themselves for reasons outside their control, so I would limit that portion of the Yoder exception to cases where communities consistently do things like not giving their children secular educations and then attempting to live en masse off the public purse or similar.

    But refraining from crime is potentially applicable to individuals. One shouldn’t lose ones religious liberty for getting a parking ticket. But capital murder might mean that, under Yoder, just as you lose your life, you lose a portion of your liberty. Or at least that prison regulations get scrutinized less strictly.

  14. Ostensible adults arguing about various flavors of superstition and childish fairy tales . . . no wonder the Congregation Of Exalted Reason always triumphs!

  15. On "frying" human beings

    None of this would be a problem, or create extra work and flood-of-claim concerns (there aren't even that many on death row), if only the SCOTUS were to take the fundamental right to life seriously and outlaw the death penalty, which is a moral abomination.

    1. You have an odd view of Constitutional adjudication, albeit one shared by many people. The Supreme Court has no authority to outlaw something because it is a "moral abomination."

      There are many who believe that abortion is a "moral abomination," even worse than capital punishment. Would you be OK with SCOTUS not only overturning Roe v. Wade, but affirmatively ruling that abortions must be outlawed, to protect the "fundamental right to life."

      1. Yes, I would be very much okay with the High Court acknowledging that the right to life is supreme.

        And I disagree that it's an oddball view. Call me a humanitarian, if you will.

    2. WPHDM....There are crimes whose nature is so heinous that the perpetrator deserves death. While I have a love and reverence for life from my own religious tradition, I recognize that there is something called justice.

      Justice can be harsh; it is justice nonetheless.

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