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The Supreme Court finally figures out that religious liberty cases are hard

Several justices appear concerned that respecting inmates’ religious rights might make it harder to execute them.

Sunny Neelam of Catholic Worker House holds a sign that reads “Execute Justice Not People!” in a vigil against the death penalty in front of the Supreme Court on June 29, 2021.
Alex Wong/Getty Images

The Supreme Court heard an utterly enraging day of arguments on Tuesday in Ramirez v. Collier, a case asking whether a condemned man may receive spiritual comfort from his pastor while he’s being executed by the state of Texas.

Several justices, who have in the past suggested that religious rights are so important they trump concerns about public health and preventing discrimination, signaled that these rights may not be quite so potent when they might interfere with an execution.

In fairness, it is not entirely clear how the Court will decide this case — four justices appear likely to side with the Texas government, and four of them appear likely to side with John Ramirez, the inmate who seeks spiritual counsel in his final moments. Justice Neil Gorsuch, who is likely to cast the deciding vote, was silent during Tuesday’s arguments.

But even if Ramirez — who does not seek to prevent his execution, just to ensure that he receives spiritual comfort while he is dying — prevails in a 5-4 decision, that decision will reveal a great deal about the justices who vote against him.

Tuesday alone was revealing. The four justices who expressed the most skepticism of Ramirez’s claims raised arguments that would never have flown in previous religious liberty cases. Justice Brett Kavanaugh, for example, suggested at one point that Ramirez might be denied a religious accommodation if granting it would increase the risk of something going wrong during his execution above “zero.” Several justices raised concerns that accommodating Ramirez’s religious beliefs would simply create too much work for the Court.

Not long after Justice Amy Coney Barrett took her seat last fall, by contrast, the Supreme Court declared that the rights of the religiously observant are so potent that they can overcome the public’s interest in stopping the spread of a deadly pandemic.

That was effectively the holding of Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a 5-4 decision handed down at the height of the Covid-19 pandemic, which exempted houses of worship from New York state public health rules that limited the number of people who could gather at the same time for religious services — ostensibly because the state didn’t impose the same restrictions on secular businesses such as grocery stores. The purpose of the state regulation was to prevent such services from becoming superspreader events, but the Court held that these public health rules must bend in the interest of religious liberty.

Roman Catholic Diocese was a revolutionary decision that significantly expanded the rights of religious objectors, but it wasn’t the first time the Court held that religious liberties overcome the rights of others. In Burwell v. Hobby Lobby (2014), the Court allowed employers to deny their employees health plans that cover many forms of birth control — holding that the religious rights of those employers trump their workers’ right to health coverage required by federal regulations.

The Court also handed down two cases in the last four years siding with religious objectors who sought an exemption from prohibitions on anti-LGBTQ discrimination — though, admittedly, both of those cases were decided along fairly narrow grounds.

Narrow as these latter two decisions may have been, however, they are part of a broader pattern. When the government sought to enforce a rule that religious conservatives objected to, the Court consistently sided with religious conservatives.

But now that conservative Texas claims that it should be able to sidestep the religious rights of a death row inmate, at least four of the justices seem likely to take a very different approach than the one the Court took in cases like Roman Catholic Diocese and Hobby Lobby.

As it turns out, religious liberty cases are often quite difficult. When the government seeks to enforce a law that some people of faith find objectionable, it often has very good reasons for doing so — reasons at least worth weighing seriously against their constraint on religious liberty. Only now does the current Court seem to be recognizing this.

How the Ramirez case arose

Ramirez is the latest chapter in a fight that began nearly three years ago in Dunn v. Ray (2019) — a 5-4 decision holding that a Muslim inmate in Alabama could not have his imam present during his execution, even though the state permitted Christian death row inmates to have their pastor present.

The Ray decision was widely condemned, even by prominent conservatives, for its cavalier approach to religious freedom. As Justice Elena Kagan wrote in dissent, one of the Constitution’s “clearest command[s]” is that “one religious denomination cannot be officially preferred over another.”

Not long after Ray, the Court started to back away from that decision. Most notably, in Dunn v. Smith (2021) the Court seemed to suggest that all death row inmates should be allowed to have a spiritual adviser present at their execution. Although Justice Brett Kavanaugh dissented in Smith, he also conceded that “States that want to avoid months or years of litigation delays should figure out a way to allow spiritual advisers into the execution room.”

The Ramirez case presents a slightly more complicated question than Ray or Smith. In Ramirez, Texas will allow Mr. Ramirez’s pastor to be present during his execution, but it will neither permit that pastor to audibly pray or to lay hands on Ramirez. Texas, in other words, will allow a spiritual counselor to be present at Ramirez’s execution, but it doesn’t want that counselor to provide any actual counsel.

Nevertheless, the eight justices who spoke during the Ramirez oral arguments appeared to break down along the same lines that they broke down in Smith.

In Smith, four justices — the three liberals plus Justice Barrett — joined an opinion by Justice Kagan arguing that death row inmates have broad religious rights. Citing a federal law that prohibits prisons from imposing “‘a substantial burden’ on a prisoner’s ‘religious exercise’” except in extraordinary cases, Kagan wrote that this statute will generally require inmates to receive spiritual counsel during their executions if they desire it.

In response to the state’s argument that a spiritual adviser might disrupt an execution, Kagan and the three other justices who agreed with her were unmoved. A state “can take any number of measures to ensure that a clergy member will act responsibly during an execution.” It “can do a background check on the minister; it can interview him and his associates; it can seek a penalty-backed pledge that he will obey all rules.” But it cannot “simply presume that every clergy member will be untrustworthy.”

Meanwhile, three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — dissented in Smith. That leaves either Gorsuch or Justice Samuel Alito as the fifth vote for the inmate in Smith, although neither of these two justices wrote an opinion or otherwise revealed their vote.

After Tuesday’s arguments in Ramirez, however, it appears unlikely that Alito provided that fifth vote in Smith — his questions were almost entirely hostile toward Mr. Ramirez. That leaves the uncharacteristically silent Gorsuch as the likely deciding vote.

The case against Ramirez, briefly explained

It is difficult to describe Alito’s case against Ramirez charitably, as that case seems largely rooted in concerns that a too expansive religious liberty standard would create a lot of work for Alito and his colleagues.

As Alito correctly noted, the Court understands religion to be a deeply personal thing. Someone with an idiosyncratic religious belief that is shared by no other person may still seek a legal accommodation for that belief.

Alito worried that, because the law requires prisons to accommodate unusual or even unique religious beliefs, a decision for Ramirez would open the floodgates to more litigation by death row inmates. “We can look forward to an unending stream of variations,” Alito complained, after Ramirez’s lawyer conceded that his client will be satisfied if his pastor can touch any part of Ramirez’s body during the execution.

Once Ramirez is accommodated, Alito feared, the Court will have to go through “the whole human anatomy,” as future inmates bring cases asking to have a pastor lay hands on their face, or their heart, or some other part of their body.

Alito’s concerns were shared by Roberts, Thomas, and Kavanaugh. Thomas fretted about inmates “gaming the system” by claiming to adhere to religious beliefs that they do not actually hold. Kavanaugh expressed similar concerns that an inmate might try to “move the goalposts” in future cases.

Roberts, meanwhile, was less derisive than his three conservative colleagues, but he asked several times how prison officials (and courts) are supposed to determine if a prisoner’s expressed belief is sincere. Suppose, for example, that a condemned man claims, on the eve of his execution, that he must convert to another faith — and that the conversion process takes three months. Should the state have to delay this man’s execution until the conversion ritual is complete?

The underlying concern driving these four justices appeared to be that, if they don’t draw a line in the sand in Ramirez’s case, then they will be flooded with lawsuits by death row inmates seeking religious accommodations. As Kavanaugh put it to Ramirez’s lawyer, “if we rule in your favor in this case, this will be a heavy part of our docket for years to come.”

Why should death penalty cases be different than any other religion case?

One reason why this line of questioning by these four conservative justices was so frustrating is that most of them appeared unmoved by similar concerns when conservatives sought religious accommodations in the past.

Consider, for example, Alito’s concern that, once the Court opens the door to religious liberty lawsuits, it invites a wave of new lawsuits from people with unusual beliefs seeking disruptive accommodations. That is, indeed, exactly what happened after Hobby Lobby was decided.

After Hobby Lobby established that religious employers may deny birth control coverage to their employees, the Obama administration tried to accommodate those employers by allowing them to fill out a form that would exempt them from the legal requirement to cover birth control (while also providing the government with enough information to provide birth control coverage to the uncovered employees on its own). But then several employers filed new lawsuits, asserting that they had a religious objection to filling out the form.

Similarly, take Roberts’s concern that it is difficult to determine whether someone who raises a religious objection is sincere. This is also a persistent problem in religious liberty cases that don’t involve the death penalty.

Consider, for example, Eden Foods v. Sebelius (2013), a federal appeals court case that was identical to Hobby Lobby in every important way but one. The difference was that the CEO of Eden Foods, the plaintiff in this case, gave a series of interviews to reporter Irin Carmon in which he revealed that he objected to providing birth control coverage to his employees largely for libertarian reasons, and not for religious reasons.

Nevertheless, the Obama administration decided not to litigate this case any further once it lost Hobby Lobby, a tacit admission that it is very difficult to convince courts that an individual’s religious beliefs are insincere — even when their own words can be used against them.

The point is that the Court’s right flank is perfectly willing to accept all of the uncertainties that arise from an expansive religious liberty regime when religious conservatives seek accommodations. So why should Ramirez be any different?

Alito offered one possible explanation during the Ramirez arguments, that death penalty cases tend to arise “at the very last minute.” Whenever an execution is scheduled, federal courts — and especially the Supreme Court — are typically inundated with emergency motions and other last-ditch efforts by lawyers trying to save their client’s life. These unexpected motions have likely declined in recent years — because the number of death sentences in the United States has dropped sharply since the 1990s — but they, no doubt, can be very frustrating to a justice who doesn’t want to cancel their plans to work late.

But that’s also the job that every justice signed up for.

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