The Volokh Conspiracy
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A quick note on a very interesting Supreme Court opinion last week in the religious liberty context, Ramirez v. Collier. The Court awarded a prisoner on death row a preliminary injunction against his execution because the state refused to allow the prisoner to have his pastor pray and lay hands on him in the execution chamber. The Court held that the prisoner would likely succeed in showing that the state's refusal violated his rights under RLUIPA, a federal statute that prohibits prison officials from substantially violating an inmate's exercise of religion unless the officials have chosen the least restrictive means of achieving a compelling state interest.
Writing for the Court, Chief Justice John Roberts reasoned that, although the prison officials had compelling interests in, among other things, preventing interference with an execution and maintaining security in the execution chamber, the officials could employ less restrictive means of achieving those interests. The officials could, for example, limit the volume level of any prayer, restrict the time allowed, and subject clergy to immediate removal if they caused disruptions. The Court noted in this regard that having clergy present to counsel and comfort prisoners at executions was a traditional practice that dated from before the founding of the Nation and that continues in many states today.
It's this last point that makes the case so interesting, from a jurisprudential perspective. As Justice Kavanaugh wrote in a concurrence, the compelling interest test—also known as strict scrutiny—operates in many contexts besides RLUIPA. Strict scrutiny applies in many free exercise cases, for example, notwithstanding Employment Division v. Smith, and in other constitutional contexts as well. But strict scrutiny often makes judges (and scholars) uneasy because it turns on courts' intuitive judgments. In practice, strict scrutiny often works as a balancing test that depends on judges' prior commitments, which are often contestable.
In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates' RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? "It is difficult for a court applying" strict scrutiny, Kavanaugh wrote, "to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear." If the justices' intuitive judgments are all that make the difference, that hardly seems legitimate.
Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. "Although the compelling interest and least restrictive means standards are necessarily imprecise," Kavanaugh wrote, "history and state practice can at least help structure the inquiry and focus the Court's assessment of the State's arguments." Kavanaugh wrote separately to emphasize this aspect of the Court's reasoning.
As my colleague Marc DeGirolami has argued, tradition is an often-overlooked factor in many constitutional doctrines, very much including the Court's establishment and free exercise jurisprudence. Tradition can't solve all problems or remove all indeterminacy, of course. Identifying a tradition can be an intuitive exercise, too, and besides, people will differ on whether a particular tradition is worth preserving in the first place. But, as Justice Kavanaugh suggests, tradition can help make balancing tests more predictable and limit intuition as a factor in judicial decision making. His insight is worth pursuing, in the strict scrutiny context and elsewhere.