Religious Freedom in the Execution Chamber

Holly Hollman March/April 2022

Studying sacred texts, attending weekly services, praying with fellow believers, and receiving advice from faith leaders are commonplace in the United States as people practice their religion freely. Though lawyers and judges debate the precise meaning of our laws, few question that our country prizes religious freedom or that religious activities are welcome. Religion thrives without our government telling us when or how to practice our faith.

But for those who serve time in prison, the government must play a far greater role. Order and security are paramount state interests when running a prison. In the prison system every aspect of a prisoner’s life is a matter of state control, and the practice of religion can get complicated. Recent religious liberty claims of death-row prisoners illustrate the challenges in balancing the religious needs of prisoners and the government’s interests in running prisons safely and securely. 

During this term the U.S. Supreme Court is considering a case called Ramirez v. Collier, which has the potential to impact how such challenges should be handled. The issue arose when prisoner John Ramirez sought approval from the state to have his pastor lay hands on him and pray audibly at the moment of his execution. The state of Texas rejected his request, as did the courts that heard his claims, but the Supreme Court granted a stay of execution and ordered an expedited review. By granting review of the case, the court has the opportunity to provide clearer guidance for interpreting laws that protect religious freedom in prisons and elsewhere. 

The Ramirez case involves several issues impacting people of faith. For many religions it is a moral imperative to care for “the least of these,” which includes those who are incarcerated. And for those of us who value religious liberty for all, we must insist that everyone has the right to practice their chosen religion, including by supporting laws that aid those who are incarcerated. For us to understand what is at stake, it is important to review the federal statute at the center of the case and how we got to this point.

A Balancing Act

At issue in Ramirez v. Collier is the application of a federal law, the Religious Land Use and Institutionalized Persons Act (RLUIPA).  It is designed to alleviate government burdens on religious exercise in two specific contexts: religious congregations facing local zoning regulations and individuals confined in government institutions, such as prisons. RLUIPA was enacted to enhance the free exercise of religion for these two populations. The statute was unanimously passed by Congress in 2000 and supported by an extremely diverse coalition of more than 50 religious and civil liberties groups led by the Baptist Joint Committee for Religious Liberty (BJC). Under RLUIPA the government may not impose substantial burdens on the exercise of religion in these contexts unless it is able to demonstrate that, in doing so, it has used the least restrictive means to further a compelling governmental interest. Often in these cases, that compelling government interest is keeping prisons secure. In short, the government has a responsibility to protect religious exercise even where impositions on religion were not intended to restrict religion.

Since its passage, RLUIPA has rarely been considered by the Supreme Court. In 2005 the court upheld the constitutionality of Section 3 of RLUIPA—the provision protecting prisoners’ rights (Cutter v. Wilkinson). The court held that Congress had the authority to pass laws that create special protections for the religious practice of institutionalized persons without violating the establishment clause of the First Amendment. In Cutter the court recognized that sometimes religious practice calls for an accommodation, particularly the removal of a government-imposed burden. While our laws tend to accommodate the religious majority, adherents of minority faiths, particularly  nonmainstream religions, often need special treatment to obtain authentic religious freedom. The court noted that the “exercise of religion” involves not just beliefs but physical acts. At times the physical acts of religious practitioners rely on accommodation from the government. RLUIPA was designed to meet that need.

Ten years later the Supreme Court again took up a prisoner’s claim under RLUIPA in Holt v. Hobbs (2015). In that case the court considered the claim of a Muslim inmate in Arkansas, Gregory H. Holt (also known as Abdul Maalik Muhammad), to grow a one-half-inch beard in accordance with his faith despite prison policies prohibiting beards. The state refused to accommodate Holt, arguing that he could express his faith through other practices. Holt sued the Arkansas Department of Corrections, and the case eventually made its way to the Supreme Court. The Supreme Court ultimately ruled in Holt’s favor that RLUIPA protected his right to have a religiously mandated beard while incarcerated. The decision hinged on the fact that the state could not show that the reasons it gave for its rule—namely, to ensure identification and security—required its “no beards” policy. 

Holt v. Hobbs provides a good example of how RLUIPA requires a proper balancing of the free exercise of religion with other government interests. While both sides may agree that prison officials have a strong interest in maintaining security, the proper question under the statute was whether the state’s refusal to allow a religious exemption for Holt’s requested beard was the least restrictive means of furthering that interest. The court ruled that it was not. In an amicus brief filed by former prison wardens on behalf of Holt, the wardens expertly noted that while security concerns in penitentiaries are certainly a compelling interest of the government, not all measures are warranted. Like the congressional sponsors of RLUIPA, the wardens who have been on the front lines of running prisons recognized that “prison officials sometimes impose frivolous or arbitrary rules” that unnecessarily restrict religious liberty. In the view of these former wardens, this case illustrated “precisely the type Congress was concerned about—where vaguely articulated security concerns are being used to justify an outdated and unwarranted policy depriving an inmate of his religious rights. 

Shifting Policies

Ramirez v. Collier allows the Supreme Court to more fully consider an area of religious exercise in prison that has been brought up in other recent cases:  the presence of spiritual advisers in the execution chamber. This case marks the fifth time in the past two years that a case involving this context has reached the Supreme Court. In February 2019, in Dunn v. Ray, the Supreme Court denied Alabama prisoner Domineque Ray’s request to have his imam at his side during his execution—the state of Alabama would allow only the state’s Christian chaplain to be present. This alarming decision that denied a request for the prisoner’s religious exercise and demonstrated Christian preferentialism during the last moments of Ray’s life was immediately criticized by legal scholars and religious leaders. The next month the Supreme Court was faced with another claim of religious discrimination in a similar policy in Texas. In March 2019 the Court granted a stay of execution to Buddhist prisoner Patrick Murphy who had requested a Buddhist priest to be by his side in the death chamber. The state had denied his request since only state-employed chaplains were permitted in the execution chamber and at the time the state employed only Christian and Muslim chaplains. This decision seemed to directly contradict the Court’s decision in Dunn v. Ray. In a concurring opinion Justice Brett Kavanaugh explained his concern was that the state seemed to have different treatment for prisoners of different faiths in the execution chamber. 

After the Court ruled in Murphy’s favor, Texas and Alabama responded by updating their policies to prevent the presence of any spiritual advisers in the death chamber during execution. This move to exclude all clergy seemed to follow Justice Kavanaugh’s suggestion that equal treatment based on religion required allowing either a spiritual adviser of the prisoner’s faith or no spiritual adviser at all. Catholic prisoner Ruben Gutierrez challenged the new no-clergy policy. After his case made its way up to the Supreme Court in June 2020 and then back down to the lower courts to be reevaluated, Texas changed the policy again to allow spiritual advisers in the execution chamber.

Most recently, Willie Smith, who was scheduled to be executed February 11, 2021, challenged Alabama’s new policy that banned spiritual advisers of any faith in the execution chamber after he was denied his request to have his pastor accompany him. The Supreme Court affirmed Smith’s stay of execution, and his pastor was ultimately allowed to be at Smith’s side and hold his leg to provide spiritual comfort in his final moments. 

Key Questions

In Ramirez v. Collier Texas finds its execution chamber policies in the spotlight once again. However, the facts in Ramirez go beyond the issue of whether a state must allow the presence of a spiritual adviser of the prisoner’s faith in the execution chamber. The case addresses what role the spiritual adviser may play once inside. In Ramirez Texas granted John Ramirez his request to have his pastor accompany him in the execution chamber but denied his request that his pastor be able to lay hands on him and to sing, pray, or read Scripture over him as Ramirez is executed. Ramirez appealed his case to the Supreme Court, which heard oral arguments in November.  The questions the Court considered include: How does the Court gauge a prisoner’s sincerity when requesting religious accommodations that would interfere with execution? What is the government’s precise interest that conflicts with a prisoner’s religious exercise to have a spiritual adviser in the execution chamber? At what point does an inmate’s religious exercise, in this case through spiritual comfort of touching and audible prayer, compromise that interest? 

Under RLUIPA the state of Texas is required to present specific evidence concerning its stated interests supporting its policy. Such evidence would need to show how allowing Ramirez’s pastor to lay hands on him and pray audibly would harm the state’s interest in ensuring security in the prison. Citing generalized assertions and speculation of security concerns fails to fulfill RLUIPA’s requirement. 

During the oral arguments in  Ramirez several justices seemed focused on the precedent this case would set for other inmates who might use religious claims to delay their executions. Justices Stephen Breyer and Elena Kagan, however, pointed out that where physical touch and audible prayer have been allowed in the death chamber in Texas previously (and other jurisdictions currently), no disruptions of the executions have occurred. This begs the question: If other jurisdictions allow this practice safely, why can’t Texas? If the issue is the size of the death chamber or limited security in comparison to other states, Texas should present relevant evidence of those concerns. So far, Texas has not done so. 

A Moral Imperative

RLUIPA is based on an understanding that religious liberty is vital and must be protected, including for those who are incarcerated. Many religious groups lobbied for its passage out of religious obligation to care for those most in need. The law provides a mechanism for evaluating the legitimate state concerns of prison security and administration while upholding the basic rights of people in government custody. Congress recognized that prison officials, if left unchecked, had a tendency to present overly broad or exaggerated security claims that would unduly restrict the religious liberty of inmates. In the recent string of Supreme Court cases involving prisoners on death row, it is overwhelmingly evident how necessary the balance between prison security and the religious freedom of inmates continues to be. The balancing test that RLUIPA provides makes the following clear: If the state of Texas is allowed to burden Ramirez’s right to religious freedom without proper justification in the name of vague security concerns, a dangerous precedent that disregards RLUIPA’s proper application and interpretation will be set. We have a moral imperative to protect the standard that RLUIPA set, not only for this necessary balance of prison security and religious freedom, but for the treatment of “the least of these” in our prison system.


Article Author: Holly Hollman

Holly Hollman serves as general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty, where she provides legal analysis on church-state issues that arise before Congress, the courts, and administrative agencies. She is a member of the U.S. Supreme Court, D.C. and Tennessee bars.