The Supreme Court heard a complex case this week interlacing the death penalty and religious liberty. John Henry Ramirez asked the state of Texas in several petitions if his Southern Baptist pastor could pray out loud and touch his body while in the execution chamber.
Until 2019, Texas allowed such requests, but it has changed its policy, forbidding religious advisers from the execution chamber by citing safety and security concerns. While Ramirez petitioned the state to maintain the previous policy, Texas reverted to allowing spiritual advisers in the room but specified they could not touch the inmate during execution nor could they pray aloud.
The question is a nuanced one: Does the Constitution provide that an inmate on death row has the religious right to a spiritual adviser to touch or pray aloud for him at his execution?
The four more “conservative” justices were concerned about what granting the request might do to the logistics of an execution or whether it would be used in the future as a guise to delay other executions. Justice Clarence Thomas questioned whether the religious beliefs of Ramirez were sincere and if he or other death row inmates could use an affirmative result as a means to “game the system” into delays.
Justice Samuel Alito had similar concerns: “But out — over the last couple of years, we have had a whole series of stay applications that present issues that are related to the one that is presented here, and each one has been different. Like virtually every application for a stay of execution, they come to us at the last minute, the day before, sometimes the day of. And what you have said so far suggests to me that we can look forward to an unending stream of variations,” he said during oral arguments.
Justice John Roberts asked questions about where the inmate would be touched and whether that would interfere with the execution, which occurs via IV in the arm.
“But what’s going to happen when the next prisoner says that I have a religious belief that he should touch my knee?” Roberts asked. “He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head? We’re going to have to go through the whole human anatomy with a series of — of cases. And you haven’t said anything about what you want exactly with respect to audible prayer. What type of prayer? When? How loud? What exactly do you want to start out with?”
While these questions are undoubtedly part of the complexity of this issue, it’s unclear why the Supreme Court need concern itself with logistics that the state should handle by making clear policies about spiritual advisers and what they can say and do in the execution chamber.
In her piece at the Atlantic on this case, staff writer Elizabeth Bruenig, who is against the death penalty, stated she thinks Texas’s policies in this case demonstrate the state is bigoted and inhumane. “A pastor praying aloud, holding a dying man’s hand, would bring too much flesh, too much humanity, into the thing. Execution theater is all about maintaining the illusion of mechanism,” she wrote.
The state of Texas seems to value freedom and religious liberty as much, in fact often more, than other states. Texas values law and order, not theater. Why the state did not equally value consistency is the problem here, and it is an unfortunate one, given the severity of the issue. The state was aware of Ramirez’s petitions while changing the policies, and the fact that it skirted his specific request for a spiritual adviser to pray over and touch him does seem inhumane: Ramirez has not petitioned the state or the Supreme Court to somehow wiggle out of his execution but simply to ask for comfort in his dying breath.
The last time I covered a similar case in 2019, I sided with Justice Samuel Alito, who was wary to grant the presence of a spiritual adviser because the request had been last-minute and seemed to reveal an effort to delay the inevitable. Those facts don’t seem present in this case.
The United States is not a Christian nation, but its religious liberties should extend to all, even those condemned. The extent of those religious liberties, and how long they should be offered to the point of execution, are difficult questions. It struck me as strange that the justices on the Supreme Court who are typically pro-religious liberty, even amid a pandemic, choose this particular battle to fight. But it seems that in an effort to honor federal law and the Constitution, erring on the side of religious liberties would provide a breath of humanity and the divine in a condemned person’s last moments.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
