The Volokh Conspiracy

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Religion and the Law

Back to Near-Unanimity as to Religious Exemptions, in Today's Condemned Inmate Case


High-profile sharp splits in religious exemption cases (such as Hobby Lobby or Fulton v. City of Philadelphia), whether as to the result (in Hobby Lobby) or the reasoning (in Fulton), can make people think that religious exemption claims always so divide the Supreme Court. That's not so, as the unanimous decisions in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) (win for religious exemption from the federal drug law banning hoasca, a hallucinogen) and Holt v. Hobbs (2015) (win for Muslim inmate seeking exemption from a prison no-beards policy).

Today's 8-1 decision in Ramirez v. Collier, which held that a condemned murderer was entitled to have his Baptist pastor in the execution chamber to audibly pray and to lay hands on him during the execution, shows that the Court can still be nearly unanimous, not just as to the result but also as to the rationale, in religious exemption cases. (The case was litigated under RLUIPA, the Religious Land Use and Institutionalized Persons Act, which generally provides for religious accommodations from, among other things, prison rules, unless the government can show that denying the accommodation is necessary to serve a compelling government interest.) Some excerpts:

To begin, we think Ramirez is likely to succeed in proving [for purposes of getting a preliminary injunction] that his religious requests are "sincerely based on a religious belief." Ramirez seeks to have his pastor lay hands on him and pray over him during the execution. Both are traditional forms of religious exercise. As Ramirez's grievance states, "it is part of my faith to have my spiritual advisor lay hands on me anytime I am sick or dying." Pastor Moore, who has ministered to Ramirez for four years, agrees that prayer accompanied by touch is "a significant part of our faith tradition as Baptists." And neither the District Court nor the Court of Appeals doubted that Ramirez had a sincere religious basis for his requested accommodations.

Respondents' argument to the contrary turns in large part on a complaint Ramirez filed in 2020. Ramirez filed the complaint while Texas's prior execution protocol, which banned all spiritual advisors from the execution chamber, was in place. The complaint sought Pastor Moore's presence and prayer in the chamber, but disclaimed any need for touch … ("When Plaintiff Ramirez is executed, Pastor Moore will pray with him. Pastor Moore need not touch Mr. Ramirez at any time in the execution chamber."). As respondents see things, this shows that Ramirez's current request for touch is insincere.

Ramirez responds that the 2020 complaint was inaccurate, and that he would have amended it had the litigation continued. The litigation, however, did not proceed, because the parties jointly agreed to dismiss the suit without prejudice less than a week after it was filed. Ramirez's specific statement in his prior complaint is certainly probative on the issue of sincerity; evolving litigation positions may suggest a prisoner's goal is delay rather than sincere religious exercise. Under the facts of this case, however, we do not think the prior complaint—dismissed without prejudice and by agreement one week after it was filed—outweighs the ample evidence that Ramirez's beliefs are sincere. Respondents do not dispute that any burden their policy imposes on Ramirez's religious exercise is substantial….

Because Ramirez is likely to succeed in showing that Texas's policy substantially burdens his exercise of religion, respondents must prove that their refusal to accommodate the exercise both (1) furthers "a compelling governmental interest," and (2) is the "least restrictive means of furthering that compelling governmental interest." Under RLUIPA, the government cannot discharge this burden by pointing to "broadly formulated interests." It must instead "demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened." …

Despite [the] long history [of audible prayer at executions], prison officials now insist that a categorical ban on audible prayer in the execution chamber is the least restrictive means of furthering two compelling governmental interests.

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate's condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency. We do not doubt that prison officials have a compelling interest in monitoring an execution and responding effectively during any potential emergency. And we recognize that audible prayer could present a more serious risk of interference during the delicate process of lethal injection than during the method of execution (hanging) that was used in most of the historical examples we have cited. But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests….

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity "could be exploited to make a statement to the witnesses or officials, rather than the inmate." They note that such statements might cause further trauma to the victim's family or otherwise interfere with the execution. We agree that the government has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear. Respondents' argument thus comes down to conjecture regarding what a hypothetical spiritual advisor might do in some future case. "Such speculation is insufficient to satisfy" respondents' burden, and fails to engage in the sort of case-by-case analysis that RLUIPA requires.

What's more, there appear to be less restrictive ways to handle any concerns. Prison officials could impose reasonable restrictions on audible prayer in the execution chamber—such as limiting the volume of any prayer so that medical officials can monitor an inmate's condition, requiring silence during critical points in the execution process (including when an execution warrant is read or officials must communicate with one another), allowing a spiritual advisor to speak only with the inmate, and subjecting advisors to immediate removal for failure to comply with any rule. Prison officials could also require spiritual advisors to sign penalty-backed pledges agreeing to abide by all such limitations.

Given the current record, respondents have not shown that a total ban on audible prayer is the least restrictive means of furthering their asserted interests….

Respondents' categorical ban on religious touch in the execution chamber fares no better. They point to three governmental interests they say are compelling: security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim's family members. All three goals are commendable. But again, respondents fail to show that a categorical ban on touch is the least restrictive means of accomplishing any of them. [Details generally omitted, but here's an important general point: -EV]

As we have already noted, maintaining solemnity and decorum in the execution chamber is a compelling governmental interest. But here what is at issue is allowing Pastor Moore to respectfully touch Ramirez's foot or lower leg inside the execution chamber. Respondents do not contend that this particular act will result in trauma. Instead, their real concern seems to be with other, potentially more problematic requests down the line. RLUIPA, however, requires that courts take cases one at a time, considering only "the particular claimant whose sincere exercise of religion is being substantially burdened." …

Justice Kavanaugh joined the majority opinion but wrote an interesting concurrence that I will post about separately. Justice Sotomayor joined the majority opinion but concurred as to certain procedural matters unrelated to RLUIPA. Justice Thomas dissented as to procedural matters, though also expressed skepticism of Ramirez's sincerity:

The majority concedes that Ramirez's "evolving litigation positio[n]" is evidence of insincerity, but concludes that "ample" evidence cuts the other way. The majority's countervailing evidence, however, falls short of showing any sincerity, let alone "a clear showing that [Ramirez] is entitled to … relief." The majority's primary support is that the laying of hands is a "traditional for[m] of religious exercise" and that Moore engages in the practice. But whether Ramirez's supposed belief is "traditional" is irrelevant. RLUIPA's protection, like "[t]he protection of the First Amendment[,] is not restricted to orthodox religious practices." The relevant issue is whether Ramirez himself actually believes that it is "part of [his] faith to have [his] spiritual advisor lay hands on [him]." To that point, the majority cites nothing other than Ramirez's bare grievance—precisely the same evidence that shows the "evolving litigation positio[n]" that the majority concedes is evidence of insincerity. Thus, the only relevant evidence in this case cuts strongly in favor of finding that Ramirez is insincere….