Texas death row case: Supreme Court wrestles with religious freedom in the execution chamber

WASHINGTON – The Supreme Court divided sharply Tuesday over a death row inmate's request to have a pastor pray and make physical contact during his execution in a case that could reshape religious accommodations for those sentenced to die.

John Ramirez, convicted of a 2004 murder at a convenience store, sued Texas officials over a policy that prohibits his pastor from placing his hands on him and praying aloud during his execution. State attorneys accuse Ramirez of delay tactics.

During more than 90 minutes of oral argument, several of the court's conservative justices pressed Ramirez's attorney on whether granting his request would prompt a flood of other challenges to state execution policies based on religious grounds.

Ramirez wants Pastor Dana Moore of the Second Baptist Church in Corpus Christi, Texas, to be able to make physical contact during the execution – perhaps with a hand placed on a knee, arm or even a foot. But the justices quizzed his attorney about what happens if another inmate insists a pastor be able to touch an inmate's head or heart.

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"That'll be the next case and then there'll be the next case after that and then the next case after that where people are moving the goalposts on their claims in order to delay execution," Associate Justice Brett Kavanaugh said. "At least that's the state's concern."

Chief Justice John Roberts raised similar questions.

"What would the analysis be if, for example, his religious beliefs required three people to be present?" Robert asked.

Ramirez's attorney, Seth Kretzer, said the law as it exists requires courts to take up such requests on a case-by-case basis.

Texas lawyers told the court the state has an interest in limiting the interaction between an inmate and adviser to ensure the death sentence is carried out smoothly. Even though states have allowed contact and prayer in the past without incident – a point Ramirez's attorney raised – Texas said it must consider the potential for a botched execution.

"We have experience and there's never been a problem," Associate Justice Stephen Breyer asserted.

Judd Stone, Texas' solicitor general, countered that in many cases those chaplains were state employees rather than outside pastors, rabbis or imams.

Associate Justice Sonia Sotomayor pushed back on arguments raised by Kavanaugh and others about a potential opening of the flood gates to similar suits.

"Congress has told us that that's what petitioners are entitled to, correct?" Sotomayor asked. "And prisons have to work in good faith to accommodate those needs."

Ramirez, 37, fatally stabbed Pablo Castro, a convenience store clerk, in 2004. He and two women were looking for drug money when they confronted Castro outside the store. According to the Texas Department of Criminal Justice, Ramirez beat and kicked Castro and stabbed him 29 times. The three left with $1.25.

Ramirez was arrested four years later at the Texas-Mexico border.

The Biden administration didn't take sides in the case but did address the court Tuesday to explain how the Federal Bureau of Prisons handled the 13 executions it carried out in the final months of the Trump administration. Deputy U.S. Solicitor General Eric Feigin drew a distinction between the time before drugs are administered and the point when an execution begins.

Spiritual advisers were present in 11 of 13 of those federal executions, Feigin said. Prayer took place in most cases but touch was more limited – occurring in one instance before the injection was administered. Feigin said the federal government would have "very substantial concerns" about allowing a pastor to touch an inmate during an execution.

For now, the impact on the federal government is somewhat beside the point: Attorney General Merrick Garland ordered a moratorium on federal executions in July.

The Supreme Court has generally been reluctant to stop executions in response to what are often eleventh-hour appeals from inmates. But the conservative majority has also looked increasingly favorably on religious exercise claims based in the First Amendment's right to practice religion without interference.

In 2019, the court was criticized for refusing to block the execution of a Muslim man in Alabama who was denied an imam – even though the state permitted Christian chaplains to attend executions. A majority of the court said that Domineque Ray had made his appeal too late. Ray, convicted of killing a 15-year-old girl in 1995, was executed hours after the Supreme Court’s order.

A month later, a 7-2 majority halted the execution of a Texas prisoner who initially wasn’t permitted to have a Buddhist spiritual adviser at his side during his execution. Kavanaugh wrote that once a state permits a religious adviser of one denomination, such as a Christian preacher, it can’t exclude rabbis, imams and other advisers.

The result was that Texas and Alabama barred all spiritual advisers from the execution chamber. But earlier this year, another appeal to the Supreme Court changed the calculus once again. In that case an Alabama inmate sued to have a pastor at his execution and a majority that included Associate Justice Amy Coney Barrett and the court's liberals ruled in his favor.

During arguments on Tuesday, Barrett asked Texas and other attorneys to articulate the state’s interest in barring prayer during an execution, as well as other religious accommodations to the broader prison population. How the court answers that question could determine the outcome of the case.

Barrett noted, for instance, that prisons offer religious services on the weekends. If their goal was to reduce the risk of rioting or fighting to zero, couldn’t they bar those gatherings for security reasons?

"But if the compelling interests were defined differently, like for example, to say 'maintaining prison security,' then that wouldn't rule out those kinds of gatherings,” Barrett said. Similarly, she said, if the state's goal is to bring the risk of a flawed execution to almost zero then it would permit the state to bar an adviser altogether.

"It always inherently carries a risk," she said.

This article originally appeared on USA TODAY: Supreme Court split over religious freedom and the death penalty