Making Sure God Is Welcome in the Execution Chamber

Posted in: Constitutional Law

Occasionally a Supreme Court case puts its dominant block of Justices in the difficult position of having to choose between two deeply held policy goals. How they resolve this conflict offers a glimpse of their cultural and political values and interpretive commitments in action.

This political quandary was visible last week when the Court released its decision in Ramirez v Collier. Ramirez required the current conservative majority to choose between its longstanding desire to expedite executions and its commitment to offering expansive protections to religious freedom.

Most of them chose to make sure that God would be welcome in the execution chamber even if it meant countenancing Ramirez’s supposed delaying tactics.

The Court’s decision is just the latest indicator of the conservative Justices’ belief that religious freedom has special status in the Bill of Rights. For them, religion is a preferred freedom. Protecting it trumps almost all other constitutional or legal values.

That preference is clear in the Ramirez case.

The facts bear recalling here. Ramirez was sentenced to death in Texas for a 2004 murder. After the end of his direct and collateral challenges to his conviction and sentence, an execution was set for September 8, 2021. At that time, Ramirez asked to have his long-time religious advisor present when he was put to death. While the state was considering this request, Ramirez also asked that his pastor be allowed also to pray out loud and “lay hands” on him during the execution.

When this request was denied, the condemned man filed suit and asked the courts to enjoin Texas from carrying out his execution. After being turned down in the lower courts, the Supreme Court granted a stay and agreed to hear his case.

Members of the Court’s conservative majority on many occasions have registered their impatience with death penalty appeals and unwillingness to protect the rights of the condemned. This reflects what the New York Times last year labeled “The Supreme Court’s Growing Hostility to Arguments of Death Row Inmates.”

Justices Gorsuch, Kavanaugh, Alito, and Thomas, at one time or another, have been explicit that getting on with the business of state killing is close to the top of their list of priorities in death cases.

In 2019, Justice Gorsuch emphasized that “both the State and the victims of crime have an important interest in the timely enforcement of a sentence,” and complained about requests for repeated “last-minute stays.” Death row inmates and their lawyers, he claimed, were engaged in “manipulation” of the system to frustrate that interest.

Last fall during oral argument in the Ramirez case, Justice Kavanaugh told Ramirez’s lawyer that “if we rule in your favor in this case, this (religious liberty claims from death row) will be a heavy part of our docket for years to come.”

Justice Alito joined him in worrying aloud that if Ramirez won, the Court would have to go through “the whole human anatomy,” as future inmates litigate to have a pastor lay hands on their face, or their heart, or some other part of their body not mentioned in any prior decision.

These impatient Justices have also used the so-called “shadow docket” to keep the machinery of death running, issuing summary decisions without full briefing or oral argument.

Yet, despite their seemingly profound concerns about delayed executions, the pull of the religious liberty was so strong for Gorsuch, Kavanaugh, and Alito that they joined Chief Justice Roberts’s opinion granting Ramirez’s requests. They were also joined by Justice Barrett and the Court’s three liberals in siding with him.

Not so Justice Thomas, who filed a solo dissent.

As Justice Thomas saw it, Ramirez was simply using a religious freedom claim as a fig leaf to delay his execution. He wrote that his case is just the latest example of death row inmates using “any means to stave off their sentences” and engaging in “abusive litigation.”

And echoing Gorsuch’s 2019 worry about crime victims, Thomas said that “by evading his sentence, Ramirez has inflicted recurrent emotional injuries on the victims of his crimes.”

But Ramirez’s request is in line with practices that have long made a place for religion during American executions. As Roberts noted in his opinion, “there is a rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation.”

More recently the Court said Texas could not allow spiritual advisors from some religions but not others to accompany inmates during an execution.

In 2019, it stayed the execution of Patrick Henry Murphy until Texas permitted “Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.” In his concurring opinion in that case, Justice Kavanaugh wrote that “the government may not discriminate against religion generally or against particular religious denominations.”

Texas initially responded by banning all clergy from being present where the execution was taking place. But in April 2021 it changed course and “resumed allowing clergy as well as spiritual advisers in the death chamber, reversing a two-year ban.”

In Gutierrez v. Saenz and Dunn v. Smith , decided in 2020 and 2021, the Court stopped executions in Alabama and again in Texas unless a spiritual advisor or minister could be present during an execution. In Gutierrez, it also directed the district court to make factual findings regarding “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”

Last week’s decision saw the Supreme Court making its own determination that the religious liberty claim outweighed such security concerns. Chief Justice Roberts offered an extended discussion of the state’s reasons for banning audible prayers and touching and engaged in a classic interest balancing exercise.

Writing about such interest balancing almost sixty years ago, Harvard Law Professor Charles Fried said that it did little to constrain judges. Interest balancing, Fried said, “neither compels a precise solution nor even precludes one.”

Justice Kavanaugh voiced similar concerns in his Ramirez concurrence. He called interest balancing “necessarily imprecise” and admitted that it leaves room for the Justices’ “own intuitive policy assessment.”

In the end, the Ramirez decision neither addresses the cruelty and inhumanity of the death penalty nor does it signal a newfound interest in protecting the rights of people the state seeks to put to death.

It is just the latest waystation on the Court’s determined journey to put religion at the center of American life. Ramirez indicates the lengths to which the Court will go to use religious freedom claims to carry on their campaign against secular experts, whether those experts be involved in banning discrimination against gay couples, preventing the spread of COVID-19, or even carrying out executions.

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