Does Texas’s prohibition against a spiritual advisor 1) touching a capital prisoner or 2) singing or saying prayers during an execution violate either the free exercise clause or the Religious Land Use and Institutionalized Persons Act?
This case asks the Supreme Court to decide whether prisoners have the right to have their spiritual advisors conduct religious actions within execution chambers. Although the Supreme Court has established that there is a right to have a spiritual advisor present, this case asks the court to further define the extent to which spiritual advisors can facilitate religious practice while present. Petitioner John Henry Ramirez argues that not allowing touch or audible prayer by a spiritual advisor severely burdens his religious liberty. Respondents, including Texas Department of Criminal Justice Executive Director Bryan Collier, counter that forbidding these actions is the least restrictive option the prison has for permitting an inmate’s religious exercise while maintaining safety and security during executions. The decision in this case will affect prisons’ execution procedures and religious rights of prisoners.
Questions as Framed for the Court by the Parties
(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.
In 2008, a Texas state court convicted petitioner John Henry Ramirez (“Ramirez”) of capital murder for stabbing a man 29 times outside a convenience store and robbing him of $1.25. Ramirez v. Collier, at 1. Although Ramirez has always believed in God, while in prison he became a devout Christian. Brief for Petitioner, John Henry Ramirez at 6. Ramirez has been a member of the Second Baptist Church of Corpus Christi, Texas, for the past four years. Id. at 7. That church’s pastor, Dana Moore, has served as Ramirez’s spiritual advisor and religious counselor since 2016, driving more than 300 miles to meet Ramirez through a plexiglass window in the prison’s viewing room. Id.
Ramirez’s execution date has been set three times. Joint Appendix (Volume I), at 21. His first execution was scheduled for February 2, 2017, but, after appeal, the Supreme Court granted substitute counsel and a stay of execution on January 31, 2017. Id. The Supreme Court ultimately denied Ramirez relief from conviction on May 18, 2020. Id. His second execution date was September 9, 2020. Id. Ramirez responded with a Section 1983 claim arguing that he must be allowed to have his spiritual advisor present in the execution chamber, but reached an agreement with Texas and withdrew it after Texas rescinded his execution date. Id. at 22.
Texas then set Ramirez’s execution date for the third time as September 8, 2021. Ramirez v. Collier, at 1. Ramirez requested that Pastor Moore not only be present, but audibly pray and physically touch him during the execution to confer a spiritual blessing. Id. at 7. The Texas Department of Criminal Justice (“TDCJ”) denied his request for Pastor Moore’s audible prayer and physical touching in the execution chamber. Id. TDCJ protocol allows spiritual advisors to minister to inmates until they are taken into the execution chamber but does not allow touching or audible praying once in the chamber so as not to interfere with the execution team monitoring the prisoner for signs of distress. Brief for Respondent, Bryan Collier et al. at 5.
Ramirez filed a grievance to allow Pastor Moore to touch him during execution, which was denied July 2, 2021. Id. In response, Ramirez filed a two-step grievance on July 8, 2021. Id. With less than a month left until his execution, on August 10, 2021, Ramirez filed a Section 1983 suit arguing that the way in which Texas intended to kill him, without allowing his pastor to lay hands and pray over him, violated the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalization Persons Act of 2000 (RLUIPA). Ramirez v. Collier, at 1–2. This claim differed from his previous Section 1983 lawsuit as it explicitly requested that Pastor Moore lay hands and audibly pray, whereas the previous lawsuit only sought Pastor Moore’s presence in the execution chamber, stating, “Pastor Moore need not touch [Ramirez] at any time in the execution chamber.” Id. at 4.
Ramirez then filed a stay of execution to litigate his Section 1983 claims before his execution. Id. at 2. The District Court for the Southern District of Texas denied Ramirez’s stay of execution on September 2, 2021, and the United States Court of Appeals for the Fifth Circuit affirmed the District Court’s denial of the stay four days later. Id. On September 8, 2021, the day of Ramirez’s execution, the Supreme Court of the United States granted certiorari for Ramirez. Ramirez v. Collier, Cert. Grant, at 1.
SUBSTANTIAL BURDEN ON THE EXERCISE OF RELIGION
Petitioner John Henry Ramirez argues that RLUIPA provides broad and extensive protections for prisoners’ religious liberty. Brief for Petitioner, John Henry Ramirez at 18. Ramirez asserts that a violation of RLUIPA occurs when the state imposes a substantial burden on an inmate’s ability to adhere to a sincere religious belief by interfering with religious practices deemed necessary by the prisoner. Id. at 18-19. Ramirez asserts that allowing his pastor to touch him during the execution is an important part of his religious exercise, noting examples of touch fostering healing in the Bible. Id. at 20–21. Ramirez also emphasizes the significance of audible prayer in the Christian faith, noting that prayer is generally meant to be spoken or sung as opposed to being silent. Id. at 21–23. Ramirez further contends that there is no reason to conclude that his beliefs are not sincere. Id. at 20. Thus, Ramirez maintains that forbidding touch and audible prayer during his execution would substantially burden his exercise of religion and cannot be alleviated by allowing his pastor’s mere presence. Id. at 23.
Respondent Bryan Collier and other TDCJ officials (collectively “Collier”) contend that demonstrating a substantial burden under RLUIPA requires Ramirez to prove that his religious belief requiring his pastor must touch him during his execution is both sincere and the basis for his requested accommodation. Brief for Respondents, Bryan Collier et al. at 33. Collier notes Ramirez provided an affidavit speaking only to his pastor’s beliefs as evidence of this. Id. at 34. Collier contends that this affidavit fails to demonstrate a substantial burden because evidence of Pastor Moore’s beliefs does not speak to the substance or sincerity of Ramirez’s beliefs. Id. Additionally, the affidavit focuses on the need to comfort Ramirez during his execution; and comfort, Collier argues, is not a religious purpose under RLUIPA. Id. Collier further asserts that Ramirez failed to show his request was motivated by a religious belief. Id. Collier highlights a time when Ramirez once reasoned “I’ve got this thing in the courts” when deciding to allow Pastor Moore to visit with him shortly before his execution, and even then only agreed to see the pastor for five minutes. Id. Collier also explains that death row inmates are never allowed to touch or have physical contact with visitors. Id. at 36. Nonetheless, Collier notes that Ramirez never previously asked for a similar accommodation while he was in prison and that Pastor Moore has in fact never touched him at the prison before. Id. Collier argues that these facts, coupled with Ramirez’s delayed request and litigation on the issue, demonstrate that Ramirez brought this RLUIPA suit merely to delay his execution, not to protect a sincere religious belief. Id. at 37.
LEAST RESTRICTIVE MEANS OF FURTHERING A COMPELLING INTEREST
Ramirez asserts that Texas must identify that it has a specific and important interest that is furthered by denying Ramirez’s religious accommodation. Brief for Ramirez at 24. Ramirez contends that such an interest cannot be overbroad and must apply particularly to Ramirez. Id. at 24–25. Ramirez argues that Texas’s interest “in maintaining an orderly, safe and effective process” is too broad and fails to provide any specific reason why audible prayers or any physical touch impedes the execution process; therefore, Texas has no compelling interest. Id. at 26. Alternatively, Ramirez argues, even if Texas did have a compelling reason to deny his request, Texas nonetheless fails to show that its policy is the least restrictive way to promote that interest. Id. at 27. Ramirez asserts that to show a policy is the least restrictive means, Texas must prove there is no less restrictive, adequate alternative to promote the same interest. Id. at 28. Ramirez argues that Texas’s prior execution policies and the current policies in other jurisdictions establish that banning physical touch and audible prayer is not the least restrictive means for ensuring safety and security during executions. Id. at 28–29. Ramirez maintains that Texas has a long history of allowing spiritual advisors and prison chaplains to audibly pray and touch inmates in the execution chamber. Id. at 33. Ramirez also contends that the fact that Pastor Moore is not an employee of TDCJ is irrelevant to Texas’s security concerns. Id. Ramirez further highlights several other jurisdictions that continue to allow touch and audible prayer during executions without incident. Id. at 34
Collier argues that its policy promotes important interests including “safeguarding the security of the execution, the solemnity of the proceeding, and the privacy of those who carry it out.” Brief for Collier, at 37. Security, Collier warns, could be affected if a contentious inmate was able to escape their restraints and harm a spiritual advisor in the chamber. Id. at 37–38. Additionally, Collier contends that allowing a spiritual advisor to stand close enough to touch the inmate and speak in the chamber could lead to issues injecting the lethal drugs and monitoring their effects, which may cause the inmate to suffer. Id. at 39. Collier further worries that letting a spiritual advisor in the chamber could increase victim distress and emotional trauma for the inmate’s family. Id. at 39–40. In addition, Collier argues Ramirez has failed to present an adequate alternative, and thus he has failed to prove that the TDCJ policy is not the least restrictive means of promoting these compelling interests. Id. at 41. Collier contends that, while Ramirez’s pastor may have a background check, he still poses a risk without the extensive experience and training of TDCJ employees involved in the execution process. Id. Collier further argues that Ramirez’s second alternative, that other jurisdictions allow touch, also fails to provide an adequate alternative because the least restrictive means must be tailored to the individual state. Id. at 43–45.
COMPLIANCE WITH ADMINISTRATIVE PROCEDURES
Ramirez asserts that he complied with all prison administrative procedures before filing his suit because he submitted a grievance requesting his pastor be allowed to touch him and pray aloud during his execution one month before bringing suit. Brief for Ramirez, at 39. Ramirez notes that he added to his initial grievance by requesting that his pastor be able to “lay hands on me” and “pray over me.” Id. at 39. The TDCJ’s allegations that it interpreted this request to mean silent prayer, Ramirez maintains, amounts to an unfair “gotcha” technique. Id. at 40. Ramirez asserts that there is no silent prayer rule in TDCJ policies and as such he did not know that his pastor’s prayers would have to be silent until three weeks before his execution. Id. at 42–43. Moreover, Ramirez argues that the TDCJ continually changed its policies as he filed requests, making it difficult for him to comply. Id. at 42.
Collier asserts that the Prison Litigation Reform Act (PLRA) requires Ramirez to follow all prison rules and exhaust administrative options for relief before bringing a suit, which he has failed to do. Brief for Collier, at 23. Collier argues that Ramirez did not comply with Texas’s two-step grievance procedure before turning to litigation. Id. at 24. Additionally, Collier notes that Ramirez did not follow Texas’s rules for fair notice and opportunity to respond by not clearly stating his grievance. Id. at 25–26. Collier asserts that Ramirez only requested that his pastor be present during the execution as opposed to requesting permission for his pastor to touch him or pray aloud. Id. at 25. Additionally, Collier argues that Ramirez did not submit his grievance within the allotted time under its policy, and thus he should not be allowed to now turn to litigation on his unpursued claims. Id. at 26.
BALANCING PRISONERS’ AND STATES’ INTERESTS
In support of Ramirez, several spiritual advisors and former correction officers (“the Advisors and COs”) contend that the denying prayer and laying of hands interferes with prisoners’ right to freely practice their religions. Brief of Amicus Curiae Advisors and COs, in Support of Petitioner at 9. A group of Religious Liberty Scholars, in support of Ramirez, contend that this is sufficient to “substantially burden” the practice of religion; they contend coercing a prisoner to act in a way their religion prohibits should not be the only recognized way to create a substantial burden, as it would allow prisons to make impossible nearly all religious behavior without violating the law. Brief of Amicus Curiae Religious Liberty Scholars, in Support of Petitioners at 6. Protect the First Foundation, in support of Ramirez, adds that such an interpretation of substantial burden has already caused damage to other marginalized groups, pointing to the destruction of indigenous ceremonial grounds. Brief of Amicus Curiae Protect the First Foundation, in Support of Petitioner at 8–9. Protect the First Foundation thus contends that “substantial burden” must be interpreted to include limiting or depriving a person from practicing a religious obligation in order to prevent future harm. Id. at 9.
In support of Collier, the Arizona Attorney General and others (“the Arizona AG”) argue that the substantial burden and other analyses that “micromanage” state execution procedures should be limited when in federal court, as it is important for federalism that the control and power of federal courts to review state court convictions remains limited. Brief of Amicus Curiae Arizona Attorney General, et al., in Support of Petitioner at 10–11. The Arizona AG asserts that allowing stays of execution and federal review of prisoners’ religious rights claims at this phase of the punishment stage unduly delays executions and undermines states’ power and finality in their own criminal proceedings. Id. at 11.
BALANCING PRISONERS’ AND VICTIMS’ INTERESTS
In support of Ramirez, the Advisors and COs contend that there is a long tradition of accommodating prisoners’ religious beliefs through spiritual advisors both being present at executions as well as praying and laying hands on the prisoner. Brief of Amicus Curiae Advisors and COs, in Support of Petitioner at 13. The Advisors and COs argue that the presence of spiritual advisors also has a necessary calming effect on the prisoner. Id. at 19. In support of Ramirez, the Becket Fund for Religious Liberty contends that other districts have allowed such practices as prayer and laying on of hands, a necessary religious practice for prisoners facing execution that this case may put at risk. Brief of Amicus Curiae Becket Fund for Religious Liberty, in Support of Petitioner at 25–26.
In support of Collier, the Criminal Justice Legal Foundation argues that the continuing civil litigation around a criminal punishment undermines the compelling interest of victims and society to reduce delay in punishment. Brief of Amicus Curiae Criminal Justice Legal Foundation, in Support of Respondent at 6, 8. The Criminal Justice Legal Foundation also contends that the recent increase in religious practice litigation is a sign that a new type of litigation is being created that will further delay executions. Id. at 10. Similarly in support of Collier, the children of Pablo Castro, the man Ramirez killed, argue that last-minute stays of execution such as Ramirez’s should be limited to when the last-minute nature of the issue cannot be avoided, unlike the religious practice claim here. Brief of Amicus Curiae Pablo Castro’s children, et al., in Support of Respondent at 13–14. Pablo Castro’s children further contend that such unnecessary, continual delays in execution compound the psychological trauma of victims’ families. Id. at 17.
- Debra Cassens Weiss, SCOTUS stays execution, agrees to hear request for pastor's hands-on, out-loud prayer in death chamber, ABA Journal (Sept. 9, 2021).
- Jordan S. Ruben, Justices Grant Rare Stay, Argument on Religion at Execution, Bloomberg Law (Sept. 8, 2021).