Religious Sincerity and Executions
My good friend Nathan Chapman passed along these thoughts on Ramirez, which I'm posting with his permission.
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.)
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.