If you give a man in a Texas execution chamber the right to a prayer, is he entitled to two?
Can he ask for candles?
If the United States Supreme Court says a condemned man has the religious right to have his pastor touch his foot while the state injects a lethal dose of chemicals into his veins, then will the court also have to allow a pastor to touch a man’s hand, his head, or even the place where the needle pierces the skin?
The justices quizzed attorney Seth Kretzer about the slippery slope of death penalty prayer on Tuesday morning, as they weighed whether the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed by Congress in 2000, give 37-year-old John Henry Ramirez the right to have his pastor lay hands on him and pray aloud when the state of Texas puts him to death.
Ramirez committed a brutal murder in 2004. He stabbed a convenience store clerk 29 times and slashed his throat to steal $1.25 in a drug-related robbery. Before a jury sentence him to death, Rarmirez was asked whether there were any mitigating circumstances he wanted them to consider. He submitted Psalm 51:3 in writing: “For I acknowledge my transgressions and my sin is ever before me” (KJV).
Today, Ramirez does not argue that he should be spared execution, but he has entrusted his life to Jesus; become a member of the Second Baptist Church of Corpus Christi, Texas; and accepted the spiritual guidance of pastor Dana Moore. He would like Moore to be with him when he dies, touch him, and pray aloud.
The Texas prison allowed this from 1982, when the death penalty was reinstated, until 2019. A former spokeswoman for the Texas Department of Criminal Justice, filing a friend-of-the-court brief on behalf of Ramirez, said that she personally witnessed about 300 executions between 2000 and 2012. In all but a few cases, a chaplain touched the condemned at the time of death.
The state of Texas changed the rules after the Supreme Court ruled in Murphy v. Collier in 2019 that a person is entitled to have a spiritual advisor from the religion of their choice present at time of death, even if the state does not have any official chaplains from that religion.
According to the Texas prison officials, a state chaplain could be trusted to touch a dying person without interfering with the execution. An outside person, even though they have been vetted and have agreed to terms and safety protocols, raises unacceptable security risks.
According to a friend-of-the-court brief filed by several Christian organizations, however, including the National Association of Evangelicals, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Anglican Church in North America, it is not clear what those security risks are.
“The State has not provided specific evidence of how audible prayers or touching the condemned prisoner would necessarily create security problems implicating compelling governmental interests,” says the brief written by attorneys Thomas Berg and Kimberlee Wood Colby. “Throughout its filings, the State has asserted concerns about order and security in an array of generalized terms rather than identifying specific problems.”
The attorneys general and solicitors general for nine states argue, on the other hand, that the Supreme Court should not get involved in micromanaging executions, “given the always compelling state interest in safety and security.”
During oral arguments, Justice Brett Kavanaugh said religious accommodation might hinge on the acceptability of risk.
“I think the state’s compelling interest is challenging for us to analyze, because I think it’s in reducing risk, risk of something going wrong in in the execution chamber. And I think the state is saying, ‘We want the risk to be zero. We want the risk to be as close to zero as possible.’ Why isn’t that a compelling interest?”
Kretzer answered that there is no statistical evidence of risk, since no spiritual advisor in Texas history or in other states has interrupted an execution or caused something to go wrong during an execution. The state has also already agreed that Ramirez’s pastor can be in the room at the time of death but required that he stay silent and not lay hands on Ramirez.
According to Kavanaugh, however, “people are moving the goal posts on their claims in order to delay executions, or at least that’s the state’s concern.”
Justice Samuel Alito asked Kretzer whether he could “say anything to us to relieve of us of the fear that we are going to get an unending stream of these types of things, about touching different parts of the body, about the type of prayer, singing, chanting, number of people in the room? Is this just what’s going to happen? The lower courts are going to have to deal with this on the eve of every execution?”
Kretzer respond that condemned people are entitled to accommodations if the rules place a substantial burden on their religious practices and their beliefs are sincere. After that, the burden is on the state to show a compelling interest and demonstrate that the restrictions on religion are as light as they can possibly be.
Justice Sonya Sotomayor underscored that point in a follow-up question.
“RLUPIA … whether we like it or not, requires the state to address each individual person’s need and a risk analysis that talks about generally about a compelling need is not the standard that RLUPIA sets,” she said. “Congress has told us that’s what petitioners are entitled to. Correct?”
“Yes,” Kretzer said.
“And prisons have to work in good faith to accommodate those needs?
“They’re supposed to. Yes.”
The court will consider the arguments and is expected to issue a ruling on Ramirez v. Collier in 2022.