Two recent Supreme Court decisions addressed the question of how highly regimented institutions should accommodate religious freedom. In Ramirez v. Collier, Chief Justice John Roberts wrote for an 8-1 majority, finding that Texas could not deny a condemned man the right to have his pastor lay hands on him and pray audibly in the execution chamber. In Austin v. U.S. Navy Seals 1–26, by contrast, the Court, in an unsigned order from which three Justices dissented, rejected Navy Seals’ religious objections to mandatory COVID-19 vaccination.
Taken at face value, the juxtaposition between Ramirez and the Navy Seals case may seem odd. Indeed, Justice Samuel Alito, dissenting in Navy Seals, accused his colleagues in the majority of showing greater solicitude for Ramirez—a convicted murderer—than for patriotic service members “who have volunteered to undertake demanding and hazardous duties to defend our country.”
Justice Alito is correct that there is some tension between the two rulings, handed down only one day apart. However, the decisions surely do not reflect greater affection for murderers than for patriots. Nor can they be fully explained by the claim by Austin Sarat in an earlier Verdict column about the Ramirez case that the Court is on a “determined journey to put religion at the center of American life.” Why would the Justices take murderers but not Navy Seals along on such a journey? As I explain below, Ramirez and Navy Seals can be reconciled by examining the nature of the government interests in each case and perhaps also by noting the constitutional status of the respective institutions.
Free Exercise, RFRA, and RLUIPA
As considered by the Supreme Court, neither Ramirez nor Navy Seals directly concerned the constitutional right to free exercise of religion. That’s because the 1990 decision in Employment Division v. Smith held that the First Amendment’s Free Exercise Clause forbids only laws and policies that target religion qua religion; it does not limit general laws and policies that happen to burden religious freedom in particular cases. Smith departed from prior precedents that were more solicitous of religious claims, leading Congress to purport to “restore” those prior precedents in the 1993 Religious Freedom Restoration Act (RFRA).
RFRA provides that whenever government substantially burdens someone’s religious exercise, that person is entitled to an exception from the burdensome law or policy, unless the government can show that enforcing the law or policy without making any such exceptions is the “least restrictive means of furthering [a] compelling governmental interest.” As originally enacted, RFRA applied to all levels of government, but in the 1997 case of City of Boerne v. Flores the Supreme Court concluded that RFRA was unconstitutional as a limit on actions by state and local governments. Still, RFRA remains valid as a limit on federal actors.
To partially plug the gap created by the Boerne ruling, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to a narrower set of state and local actors than the original RFRA did. RLUIPA’s operative provision sets out the exact same legal standard as RFRA: no substantially burdening religious exercise unless the law or policy imposing the burden is the least restrictive means of furthering a compelling governmental interest.
Because Ramirez is imprisoned awaiting execution by the state of Texas, his case involved RLUIPA, whereas the Navy Seals, who are challenging a policy adopted by the federal government, invoked RFRA. However, as we have seen, the two laws are substantively identical. Indeed, the Supreme Court has referred to RLUIPA and RFRA as “sister statutes.” Thus, the two cases could be said to raise the same or at least very similar issues. What, then, explains the different results?
Least Restrictive Means
The test of RFRA and RLUIPA was drawn from the Supreme Court’s constitutional precedents in various contexts. Wherever the test applies, the first part—identifying a compelling interest—is usually straightforward and easy for government to satisfy. Just about any law or policy that government follows can usually be characterized as furthering what can be described as a compelling interest.
In Ramirez, the state has interests in ensuring that the execution goes smoothly so that it does not lead to the prisoner’s suffering unnecessary pain and distress, in the dignity of the proceeding, and in protecting the sensibilities of the witnesses (including family members of the victim). In Navy Seals, the government has an interest in the health of its service members, which in turn implicates an interest in combat readiness and ultimately national security. All of these interests can be fairly described as compelling. Thus, in each case the key legal question is whether the policy is the least restrictive means of furthering the government’s compelling interests.
In Ramirez, the Court said it was not. Citing numerous examples of audible prayer by clergy in execution chambers, the Court found that the practice did not undermine any of the state’s asserted compelling interests. Likewise, the Court explained that the pastor could easily place his hand on Ramirez’s body without interfering with the lethal injection machinery. Thus, the state had failed to satisfy the requirements of RLUIPA.
The basis for the Court’s decision in Navy Seals is less clear because, as noted above, the majority issued only an order, not a full opinion. However, the Court likely credited the government’s filing. Quoting an admiral who is “the second-highest uniformed officer in the Navy,” it “explained that the illness of ‘even one member’ of a small SEAL team due to COVID-19 could ‘compromise the mission.’” That same admiral “emphasized that he would regard it as a ‘dereliction of duty’ to order ‘unvaccinated personnel into an environment in which they endanger their lives,’ risk ‘the lives of others,’ and ‘compromise accomplishment of essential missions.’”
Is that all true? In Ramirez, the Court painstakingly analyzed the government’s risk claims. Why didn’t it do the same in Navy Seals? One possibility is that the need for the Navy to combat the risk of COVID-19 infection is simply obvious, whereas Texas has no apparent need to maintain complete silence and distance by a pastor during an execution.
A further element also seems to be at work. As Justice Brett Kavanaugh explained in a concurrence in Navy Seals, courts have repeatedly emphasized that they lack military expertise and thus give considerable deference to the executive with respect to questions implicating military preparedness.
Does RFRA Permit Deference to the Commander in Chief?
Justice Kavanaugh’s analysis and the Court’s evident approach in Navy Seals make practical sense, but are they legal? That question arises because a 2015 Supreme Court decision, Holt v. Hobbs, held that judicial deference to prison officials’ expert judgment on security questions is impermissible under RLUIPA. Given that RFRA is substantively indistinguishable from RLUIPA, that determination seems to imply that judicial deference to military officials’ expert judgment on national security questions is likewise impermissible under RFRA.
The lower court in Holt had noted that even before the Smith decision, courts allowed restrictions on prisoners’ free exercise rights that would be impermissible in civilian life. Instead of applying the compelling interest test, they upheld restrictions so long as they were “reasonably related to legitimate penological interests.” Reasoning that RLUIPA did no more than restore the pre-Smith case law, some lower courts thus construed RLUIPA to permit substantial deference to prison officials. In Holt, however, the Court stated that “RLUIPA provides greater protection” than the pre-Smith deferential decisions.
Pre-Smith cases also allowed substantial deference to military policies. For example, in a troubling 1986 case, the Supreme Court upheld an Air Force rule that forbade Captain Simcha Goldman, an orthodox Jew and ordained rabbi, from wearing a yarmulke while on duty indoors. Far from applying the compelling interest test, the Court gave “great deference to the professional judgment of military authorities.”
Holt established that prison authorities do not receive deference under RLUIPA. Doesn’t that imply that military authorities do not receive deference under RLUIPA’s sister statute, RFRA? The answer may depend on the basis for deference.
Before Smith and RLUIPA, courts afforded deference to prison officials for practical reasons. Believing themselves not well qualified to evaluate costs and benefits of various prison policies, judges deferred to what they regarded as greater expertise. For better or worse, the Court said in Holt, Congress in RLUIPA told the courts to rely on their own assessments, and so that is what they now do in prison cases.
When reviewing military policies, courts in the pre-Smith and pre-RFRA period also gave deference for similar practical reasons, but they had a further reason. In his Navy Seals concurrence, Justice Kavanaugh described deference to the military as a “bedrock constitutional principle” that implements the fact that “under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.” If the Constitution itself commands judicial deference to the military, then no mere statute, such as RFRA, may displace it.
Is that argument persuasive? Maybe, but maybe not. After all, while Article II makes the President Commander in Chief, Article I empowers Congress “to make rules for the government and regulation of the land and naval forces.” As applied to incidental restrictions on the religious freedom of service members, RFRA might be seen as a valid exercise of that power.
In the end, then, it is not entirely clear whether constitutional considerations enter into the explanation for the different outcomes in Ramirez and Navy Seals. Whether deference to the military is compatible with RFRA and whether, if not, RFRA is unconstitutional, were open questions before the Court decided the Navy Seals case and remain open today. The Court could and should answer them, but to do so, it will need to set more cases for plenary consideration and to decide fewer important issues via its shadow docket.