The Supreme Court's conservative majority during Tuesday oral arguments was resistant to a death-row inmate's request for his pastor to lay hands on him and pray aloud as he is executed.
The inmate, John Ramirez, says federal religious freedom protections require authorities in Texas to grant his request. Prison officials, citing security concerns, don't want outside clergy to interfere with the execution protocol. The conservative justices sympathized with the state's security concerns and seemed apprehensive about opening the door to more requests for religious accommodations.
"If we rule in your favor here, this is going to be a heavy part of our docket for years to come," Justice Brett Kavanaugh told Ramirez lawyer Seth Kretzer. "That would be my sense given the history of death penalty litigation."
Ramirez's case could bring clarity to the matter of religious rights and death penalty protocols, which have confounded the justices for several years. The High Court in 2019 turned down an 11th-hour appeal from a Muslim inmate in Alabama who was denied the company of his imam in the death chamber. The Court just weeks later came out the other way in an identical dispute that involved a Buddhist inmate in Texas.
Ramirez in 2008 was sentenced to death for the murder of Pablo Castro, a convenience store worker. Ramirez stabbed Castro almost 30 times and made off with $1.25. Almost a decade into his incarceration, he joined a Baptist congregation led by pastor Dana Moore, the chaplain who will accompany Ramirez in the execution chamber.
Texas jailhouse rules allow Moore to be present in the chamber, but he is prohibited from vocalizing his prayers or touching Ramirez because of security concerns. Ramirez argues that those restrictions violate the Constitution and the Religious Land Use and Institutionalized Persons Act, a federal law that protects the free exercise rights of inmates. That statute forbids the government from interfering with a prisoner's religious practice without a very good reason, and then only to a minimal extent.
Kavanaugh took the lead in questioning Kretzer. He said that Texas had a strong interest in conducting an execution with a minimum of risk.
"You're saying you can do [the laying on of hands] without a problem, and the state's saying that increases the risk of a problem. And I don't think you can dispute that," Kavanaugh said.
Kretzer said that hundreds of executions have been completed without incident with a chaplain present. Kavanaugh countered that those cases are different because those chaplains were prison employees who didn't pose a security threat. Moore is an outside clergyman.
"What they're worried about is someone from the outside coming in," Kavanaugh said. "And you never know. It's very fraught."
The Biden administration on Tuesday floated a compromise, suggesting that Moore could pray audibly without laying hands on Ramirez. Justice Department lawyer Eric Feigin told the justices that clergy are allowed to pray vocally during federal executions. But he agreed that Texas has good reason to resist any kind of physical touch, calling the execution protocol "highly choreographed and sensitive."
Kavanaugh and Justice Samuel Alito expressed concern about death row inmates putting off their executions by seeking religious accommodations at the last minute.
"What's going to happen when the next prisoner says that I have a religious belief that he should … hold my hand? He should put his hand over my heart. He should be able to put his hand on my head," Alito asked Kretzer. "We're going to have to go through the whole human anatomy with a series of cases."
"We get these [appeals] at the very last minute and we're going to continue to get them at the very last minute," Alito said elsewhere.
Texas solicitor general Judd Stone continued in that vein and said Ramirez has succeeded in delaying his execution by repeatedly altering his requested accommodations. His latest complaint was filed about two weeks before the scheduled execution. Chief Justice John Roberts asked Stone whether the state would input bad faith to an inmate who has a last-minute conversion and asks to delay his execution for a period of spiritual formation.
"I suspect impending death focuses people's concerns on religion in a way they may not have been before," Roberts said.
A decision in the case, No. 21-5592 Ramirez v. Collier, is expected by summer 2022.