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Rebecca, Monica, Alison, and Liz discuss the religious liberty issues arising in death penalty cases. Since 2019, questions about what religious liberty rights are afforded to those sentenced to death at the moment of their execution have been featured at the high court. Rebecca walks us through four notable cases on this issue and the hosts discuss what it means for religious liberty cases overall.
Background
Relevant Cases
Rebecca Markert: Welcome back to We Dissent, the podcast with four secular women attorneys discussing religious liberty cases in federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with the Freedom From Religion Foundation and I'm one of your co-hosts.
Monica Miller: And I'm Monica Miller, the legal director and senior counsel at the American Humanist Association and another one of your co-hosts.
Alison Gill: Hi, I'm Alison Gill, vice president for legal and policy with American Atheists and I'm another co-host.
Liz Cavell: And I'm Liz Cavell, associate counsel also at the Freedom From Religion Foundation.
Rebecca Markert: And we wanna welcome Liz back to the podcast. You only skipped one episode for the birth of your child. I think that is kind of amazing or you're crazy, which one?
Liz Cavell: Crazy amazing.
Monica Miller: Crazy amazing. You look amazing. You don't look like you just gave birth. You didn't look like you were about to give birth the day before when we saw you last time.
Liz Cavell: Thank you. Yep, from the waist up, I look amazing. <laugh> Luckily, everything went well. It's been seven weeks, so I have a seven week old at home. And all is well.
Monica Miller: Congrats.
Alison Gill: This is not your first child, right?
Liz Cavell: It is my third child. Crazy. Amazing.
Monica Miller: Well, we have two crazy amazing mothers here. <laugh> you guys are hands full with lots of little, so you guys are, really I'm impressed that you're even here. <laugh>
Liz Cavell: Thanks. Well, yeah, it's great to be back using my brain to do things other than stay awake. And we are kind of talking about a really neat topic in terms of how it affects or how it's managed to touch on religious liberty issues, but not so neat in terms of what the Supreme Court has been doing.
Rebecca Markert: Right? So in this episode, we're going to be talking about a line of religious liberty cases involving the death penalty. It's something that I think none of us actually thought we would be working on when we took our jobs at these secular organizations. Capital punishment cases aren't the ones that readily come to mind when you're thinking about religious liberty issues or the separation of state and church. But there has been a line of cases over the last three or four years, which have brought up Establishment Clause concerns. And we're gonna talk about those today, but first we wanna do a little bit of background and just discuss the death penalty in the United States.
Liz Cavell: Right, so obviously the history of the death penalty in our legal system, you know, goes way back to the founding and the colonial period and back beyond that, and we know that capital punishment, you know, figures pretty heavily in the Bible, both the Old and New Testament. So it's not only biblical we know that capital punishment comes from other kind of ancient codes of conduct and laws. But the Bible, of course, is a source for the death penalty in both civil and moral law. So, you know, in the old Testament, we know Genesis the, and I notoriously do not faithfully quote the Bible so don't, you know, come at me about this, but whoever sheds the blood of man by man shell, his blood be shed for God made man in his own image, you know, eye for, an eye, and that sort of biblical justification in the Old Testament. And in the New Testament, we have Paul writing to the Romans about why you should respect the civil authority because the state doesn't bear the sword in vain, he's the servant of God to execute his wrath on the wrongdoer.
So basically civil laws are giving, kind of, God's servants on earth, the power to enforce and execute God's law on the people and that includes physical punishment and death. And we know that early American settlers, the Puritans, had a penal system that was based on Mosaic Law. The list of capital crimes from that period basically is almost verbatim from the Torah. So we know biblical justifications exist for capital punishment in our country and in other societies. But I think it's important to note that like the death penalty has been controversial in American law since pretty much the founding. So in the founding era, it was, you know, enlightenment thinking, there was opposition to the death penalty, especially for crimes that fell short of what we would now think of as capital crimes, which is murder and treason in that day. Thomas Jefferson proposed abolition of all capital crimes, except for those two way back in 1779, that wasn't ultimately adopted in that day but that was part of the public conversation. And there was opposition to the death penalty as too harsh and excessive a punishment for other crimes beyond that. So then like, way fast forward into the 1960s and seventies, where there was a really growing trend towards abolition, and there were some big cases before the Supreme Court during that decade and churches and religious organizations put out statements against the death penalty. 13 religious organizations asked the Supreme Court to abolish the death penalty in the big case of the decade, which was Furman versus Georgia. And that was also the time at which the Vatican reversed its opinion, the position of the Catholic church on the death penalty, which now the Catholic church is adamantly opposed to the death penalty.
Alison Gill: I just think that's amazing. I mean, that's just so odd to me. I mean–
Liz Cavell: How God–
Alison Gill: Can change his mind like that, just in one year becomes like an infallible problem.
Liz Cavell: Yeah, it's weird. He's both omniscient, omnipotent and also, you know, just vibes with the times
Monica Miller: <laugh>. Yeah.
Liz Cavell: Yeah, so that, and that obviously was controversial at the time. But now I think is a pillar of Catholic doctrine is that the death penalty is amoral, which wasn't always the case.
Alison Gill: Isn't that the paper that justice Amy Coney Barrett famously wrote about how, how a sort of Catholic jurist should think about these things sort of complying with the death penalty versus, you know, the church is teaching from the death penalty versus their own perspective.
Liz Cavell: That's right.
Alison Gill: Yeah.
Monica Miller: Yeah. I was gonna say, you know, I think while this is relevant is in large part because where we're, we're heading with this, is that the idea that something that's enacted that's consistent with religion, whether that's, you know, or consistent with religious doctrine, whether that sort of endorses the religion, the other point, I think that was interesting for me to sort of learn or re understand is that this was controversial since the time of our founding and that's relevant in our First Amendment area of the law too, where we have our opponents often proclaiming, you know, we are a Christian nation and from the beginning of our country's time, we've had, you know, prayer in school. We didn't even have public schools back then. The idea that we've always had, you know, this capital punishment system that everyone's been on board with when we enshrined it in our constitution, or, you know, when we had our constitution, ratified is not true. I mean, it was hotly debated then and it's been hotly debated, you know, throughout our history. And I think that is something that folks maybe don't really appreciate,
Liz Cavell: Right? That's so true. And I mean, even now, as much as ever, or, you know, probably more than ever public support for capital punishment is pretty low. And, you know, there's a lot of ambivalence and kind of mix in terms of what Americans think about the death penalty. Death penalty information center has tons of stats on their website. That's where we got a lot of this information and these are older stats, but they're from 2014. And it, at that time showed that public support for capital punishment was basically at an all time low and opposition to the death penalty is now at its highest point since the 1960s, when the Supreme Court was considering the constitutionality of the death penalty in a very sort of controversial case. It's interesting also to note that when surveyed by religious identity the religious group, most likely to support the death penalty is white evangelical Protestant Christians.
Monica Miller: Not really surprised by that, to be honest,
Liz Cavell: <laugh> no, and I mean, I do think it is most in keeping with a really fundamentalist view of religion. I think there are a lot of religious groups in this breakdown from DPIC that really, you know, doesn't like Catholics, you know, mainline religious people, individuals are not super likely to support the death penalty, but there's something about the fundamentalist evangelical worldview that obviously fits very nicely with supporting the death penalty
Alison Gill: When it comes to unaffiliated people, religious unaffiliated people. I see, it's almost even, fors and againsts, I'm just curious. I mean, that religiously unaffiliated people is a much broader category than, for example, atheist and agnostic. It includes a lot of people that would even say that there is a God or that they, religion is very important to them. So I'm curious, do we have any information on what it looks like for, you know, non-religious people?
Liz Cavell: Yeah. I don't know if there's like a breakdown in the, that comes from PRRI, the Public Religion Research Institute that stat, but I will say FFRF surveys its own membership every few years. And we survey on a lot of opinions on hot political issues and we've surveyed our own members on this issue. And we found that nearly 70% of our members oppose the death penalty. So that's 70/30, which is obviously much broader opposition versus those unaffiliated numbers and I don't know if that's capturing. You're right, that unaffiliated group is just people who self-identify as unaffiliated with any, with a specific religious practice. So that's a really broad group of people. There's more support in that group for the death penalty than even, you know, some of these other religious groups like Jewish and Catholic. And so it is interesting.
Monica Miller: I also think it's interesting with the Catholics you know, where Catholics have landed versus the evangelicals. And I feel like, you know, the Catholic church is I think making is, you know, for better or worse. It maybe works for an atheist standpoint where we want to have less religion. They're actually making their faith more approachable for young folks that are more progressive with the times and don't have that eye for an eye. But it is interesting that I feel like, you know, having gone to Catholic school, I think Rebecca said she did it as well. I don't remember them having this eye for an eye.
Rebecca Markert: I'm also from Wisconsin originally born and raised here. And so outside of the Catholic traditions that I was brought up in Wisconsin was one of the first states to abolish the death penalty back in the 19th century. So like Monica, I was just astounded to find that there were people who adamantly support the death penalty on capital punishment. And I know when I graduated from law school and I was looking at different jobs, particularly in criminal prosecution, we were looking in like Illinois, for example, Cook County in Chicago, looking at prosecutor positions there. And I thought to myself, well, I can't be a prosecutor in Cook County because I don't want to be faced with a situation where I might have to charge somebody with death penalty. Although Illinois is one of the states that put a moratorium on the death penalty back then. And actually 22 states have abolished the death penalty so the trend does seem to be getting rid of this practice.
Alison Gill: There's one other element here that I really think we have to mention. And that's the racial element when it comes to this, there are, I mean, just looking at these numbers, there's such a remarkable divide between for example, groups, that religious groups that are predominantly white versus those that have like different racial attributes. Like, for example, if you look at black Protestants and Hispanic Protestants, it's about 70% oppose the death penalty as opposed and if you look at Catholics for white Catholics, it's about 50%, for Hispanic Catholics is about much more than 60%. So you can see the huge jump there. And I think that just, you know, there's a deeper understanding that the death penalty is very clearly tied to our justice system and how systemically racist it is. And it's really an important consideration.
Liz Cavell: Of course.
Monica Miller: Cause we're, we're sort of talking here from the lens of assuming, you know, that the person, on, you know, the, the death penalties is happening to is guilty, but, but the big, one of the big, we're not assuming that, but like, you know, the, the discussion is sort of presupposing that, assuming that you've done something wrong, do you deserve the death penalty? The fact that one could be killed, who is innocent because our system might be racist or might be corrupt when it comes to certain ethnicities and minorities in the south or wherever they may be. Yeah, absolutely there's a racial issue tied to this,
Liz Cavell: Right. And obviously racist application of the death penalty is one of the many reasons why the death penalty is unconstitutional as applied in our country in many or most states. And like the death penalty, defense is such a important and robust area of law that is super granular, just like most areas of law. And none of us is qualified to really talk about it. But we're just kind of giving this bird's eye overview of the death penalty in our country and how it kind of fits into the legal system so that we can pivot to talk about how this, this area of law that's so important. And so fraught has touched upon our little corner of the universe, which is religious liberty and the Establishment Clause. So it is important, I mean, we always have to say put in perspective how kind of anomalous the death penalty is in just like Western democracy at the US is we have here in our notes that more than 70% of the world's countries have abolished the death penalty, but notably the 30% remaining does not include a lot of you know, Western democratic nations like the US. So we are in with China, Iran, Saudi Arabia, Iraq, Egypt, Somalia, Sudan, North Korea. So we're on that list with countries that are responsible for the most executions. Yeah, so that's not great. But that being the case. So what is going on with the Supreme Court in these death penalty cases,
Rebecca Markert: What's really interesting is a lot of these death penalty cases you don't really hear a lot about because most of these cases go up to the Supreme Court on an emergency basis. Usually the Court is getting these requests to stay in execution, to block the execution hours before the execution is actually supposed to take place. So a lot of these motions and last minute attempts to stop an execution are part of the Court's emergency docket. Some might know it as the shadow docket, but what we've discovered in the last three or four years is that some of these shadow docket cases have been coming to light, there have been more reports about them. And this last case, the one that we're going to discuss later on in the show, actually went to a full briefing and oral argument and a full opinion. And that is pretty unusual for death penalty cases, but we're gonna go back to 2019 in the state of Alabama, the first case where we really talk about what the religious liberty rights of the condemned are, come from this case known as Dunn versus Ray. And so in that case, the state of Alabama is going to execute a Muslim, Dominic Ray, and he requests that his Imam be present in the execution chamber. Now what's important about this case is that the state allows the prison chaplain, who is a Christian, to be in the chamber, but the state denies Ray his request to have his own religious, spiritual advisor to be present in the chamber. So he challenges this decision and the 11th circuit puts the execution on hold because of the prison's policy of excluding one religion over the other. They say, this policy likely violates the Establishment Clause and we can't go forward with this.
So it goes up to the Supreme Court. And then in a 5-4 decision in February of 2019, the Court lifts the stay of execution, which means that the death sentence can go forward. And they reasoned that Ray, the inmate, had waited too long to challenge the policy. There's a dissent by Kagan and she's joined by Justices Ginsburg, Breyer and Sotomayor. It's only a three page decision again, because this is one of those emergency docket type of cases so you don't, you're not gonna get a lengthy opinion that you would see in some of these other religious liberty cases. And really what was at issue here was he made his request too late. So the state of Alabama scheduled Ray's execution back in November of 2018, and the execution was set for February 7th, 2019. Ray, they say, waited until January 28th, 2019 to seek relief. And that was too late in their opinion. And if you're looking for more reasoning on this, there isn't any, the full opinion was just one paragraph. And it just included this information, the timeline of events and a cite to one case from 1992, saying that they may consider the last minute nature of an application to stay in execution in deciding whether to grant equitable relief but he was just too late. So this case garners a dissent from Justice Kagan, who says that is profoundly wrong and she elaborates that the state's policy of allowing Christians over all other faiths to be in the execution chamber goes against one of the core principles of the Establishment Clause. And she quotes the famous quote that we all have used in our work from Larson that says "the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." They had a compelling interest to override this religious discrimination she writes, and the state presented no evidence of any sort of compelling interest, prison security could be considered a compelling interest, but they didn't have any evidence saying that prison security was at issue here. And the prison denied his request to have an Imam on January 23rd and he only filed his complaint five days after he got that official denial. So he couldn't have known any earlier that the prison was gonna deny his request. There was a lot of public outcry about this case. I don't know if you guys remember back in 2019, it seemed ridiculously obnoxious that they were going to let this execution go forward.
Liz Cavell: So I just wanna jump in real quick in terms of how like exceptionally, exceptionally cruel this decision was because if you're not a lawyer listening to this, or if you are a lawyer who finds law dense and boring, like just to back up like the procedural posture of this is the Supreme Court's weighing in just on the question of whether or not to lift this stay of execution on the inmate's actual execution date. So, like the actual underlying I mean, am I right Rebecca, the underlying merits issues being like Rebecca mentioned, the state presented no evidence to prove that it had a compelling security interest that would override the religious liberty interest here. And the reason that hadn't happened is because the, the, the phase of litigation at which this is going up to the Supreme Court is the, the lower court's decision to stay the execution while we explore those issues through the court process. And that is what the Supreme Court is saying is not gonna happen. It just always kind of sends a chill down my spine that the Supreme Court will step in to lift a stay of execution on someone's death sentence to say, actually, no, you have to go ahead and put this person to death. We're not gonna let you take the extra six months to like, give a full and fair hearing of this constitutional issue in the courts below. That just blows my mind. Never mind that it's being done on the shadow docket with no argument, no briefing and basically no analysis in the opinion it's chilling.
Monica Miller: It is chilling. And I think, you know, going back to our constant theme of plaintiffs and who is before the Court, I don't think we would have that outcome if the plaintiff were a Christian.
Liz Cavell: Well, funny, you should say that Monica, we don't have to wonder. Rebecca, what happened next?
Rebecca Markert: Well, so after this decision comes down in Alabama, like I said, there's huge public outcry. It's clear that everybody on the left and on the right thinks that this is just profoundly wrong and a cruel decision. So another case comes up to the Supreme Court this time out of Texas in March, 2019. So just a month later, and in that case known as Murphy versus Collier, the Court is deciding whether Texas can bar a Buddhist from having a Buddhist priest present in the execution chamber. So Texas policy allowed Christian and Muslim spiritual advisors to be in the chamber, but no other faiths. So it goes up to the Supreme Court and in a decision this time 7-2, they agree to block the execution unless he's allowed to have the Buddhist priest there, they kind distinguish it from the earlier case, because they said that Murphy did make the timely request, it was a month earlier. So that distinguished it from the Ray case and Kavanaugh actually wrote a short opinion on this and he says, Texas basically has two options. You can either allow all people on death row to get a religious advisor of their own choosing in the execution room, or you only allow them in the viewing room and not inside the chamber. So it's either everyone or no one. He also wrote that if prison security is concerned, then what you should do is just ban everyone from the room. But he did write that a state cannot allow Christian or Muslim inmates, but not Buddhist inmates from having a religious advisor of their own religion in the execution room. So it's really a decision that seems the Court's really slinking back from that Ray decision. Like they kind of understood that they had made a pretty huge mistake. And then of course, a few days later, Texas decides, well, we're just gonna adopt a policy, barring all chaplains and spiritual advisors from the execution chamber. So that should solve it, right? No, that does not solve it. So we are back in Texas and what's interesting about these cases is they're all from Texas and Alabama. I feel like it's kind of like a tennis match. We go like Alabama, Texas, Texas, Alabama. So in June, 2020, there's another case in Texas where the court's considering whether their new policy banning spiritual advisors violates the religious rights of the condemned. So this is Gutierrez versus Collier. And this time it's a Catholic and he's asserting that his religious rights are violated because he can't have a spiritual advisor in the chamber. Then there is an unsigned order from the court and with this shadow docket that is very short and I can read the entire thing to you. It says "the district court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual advisor the prisoner wishes to have in his immediate presence during the execution." So they do send it back down to the lower courts in this one.
Liz Cavell: Seems like that would've been a very reasonable way to resolve the Dunn versus Ray case, which was like not what a year before that. And granted, it was a Buddhist, not yet a Christian in the second case. So I will slap myself on the hand, but there's something about a Muslim and Imam that I think triggers that real kind of conservative in terms of the conservatives on SCOTUS.
Alison Gill: And as soon as it is a Catholic, it seems to be an entirely different standard.
Liz Cavell: Right. All of a sudden we're taking a step back and taking a deep breath and saying, oh, actually it's important to visit the merits of this question. It won't take much longer. And you know, it's not like the stakes are high or anything. I mean, it's literally the live ammo possible in our legal system.
Alison Gill: I do have a question about this though. Like, why are we seeing these cases just in the last three years, has this never come up before, like people want what's changed in the law or in, I don't know the way, the way that, death penalty has carried out or the way people pray, like, right. Why are we seeing it just in the last few years and never before?
Liz Cavell: You know, I wish I had researched this deeper to be able to answer that question definitively, but my just wild speculative guess is the makeup of SCOTUS has changed. And the, and that the lower courts have been resolving these religious liberty prisoner questions at the district court level with relative unanimity. And we're just seeing an eager Supreme Court that wants to take on these issues just like on all of our other cases.
Alison Gill: That makes a lot of sense.
Rebecca Markert: I didn't research it either and I agree with Liz, I mean, just my cursory review of these cases, it just seems to align with the makeup of the Court and their interest in religious liberty cases overall, and their trend to grant more religious privilege to people and that's really what we're seeing here. And in some of these cases, you're seeing a lot of the same trends that we've talked about in these other cases come through in these death penalty cases, Justice Kavanaugh, for example, his whole line of it's either you like ban everyone, or you can't discriminate. We hear him saying that in these other cases as well.
Monica Miller: It's also interesting to see where the, where the progressive justices lie, because I think they're in the same, a similar position as we've been in as Amici parties, where you almost feel complicit in endorsing the death penalty, when you have to be like, okay, we want the spiritual advisor, you know, in that room for us, we're like, well, we don't even, we don't like the, I mean, we understand the need for the spiritual advisor from a Free Exercise Clause, you know, standpoint a bit, but at the same time, you know, like they have to sign an order that still acknowledges that death penalties on the table. Yet, they want to be fair with the Religion Clause. So they're saying, well, if we say this for the Muslim prisoner, we have to say this for the Buddhist and the Christian prisoner. So, you know, that's where Breyer might land. Yeah, you have to have the spiritual advisor if you're, you know, if we're playing favorites, but at the same time, you're still signing an order that says for when the person gets executed. That must be challenging to feel like you're somehow, I don't know, involved with the, with the murder or the death of another human being.
Rebecca Markert: When I was researching our Amicus brief. And we did submit a coalition brief on one of the later cases that we haven't quite yet got to yet. But when I was researching for that brief, I came across an interview with Ruth Bader Ginsburg, former Justice of the Supreme Court, who talked about the death penalty. And when they asked her, you know, what cases were the hardest for you? She said the death penalty cases, and it wasn't necessarily just because they're sort of haunting for a lot of Jstices and she was against the death penalty, but also because the death penalty law, you cannot summarize it in a way that is easy and digestible for somebody like her who had never taken a capital case before. So you can't just write a memo on the death penalty and understand all of the law that comes with it. It's really difficult to do that.
Monica Miller: And scientific too, I mean, we're talking about when you get into, when you even just listen to the oral arguments in these cases, I mean, it's, it's stomach turning for one, because you, and you know, I'm, I'm needle phobic too, and there's like a lot of needle talk involved, but like you're talking about ending someone's life and the things that could go wrong in the room. And they're talking about like, you know, just things that are scientific, like ending life, what kind of complications are involved? What could happen if, you know, the chaplain does something, you know, there there's some legitimate concerns that, that I would have if you put, if you disassociate the ending of a life and you know, I can understand these compelling state interests of having no advisor. I'm curious what you all think in terms of the Free Exercise Clause aspect of this. I do feel like this fits into the area where the Establishment Clause concerns. Aren't like, I don't feel like the government's endorsing religion by allowing an Imam in the room for a Muslim inmate execution. I don't think that's endorsing religion, but at the same time do I, you know, where do, I don't know? I don't know where I stand.
Liz Cavell: I mean, I think when it first, when it first accepted this issue for Dunn versus Ray, the inmate who wanted the Imam, but was refused in a prison with a policy that allows the Protestant or whatever Catholic or Christian chaplain to be present at executions, right. That presents the purest Establishment Clause issue. And you don't even really need to like hit upon the free exercise piece because it's just like, you can have a spiritual advisor, but it, the only one we have for you is this Christian guy. And no one else is allowed. That seems just so clean and pure. But of course, the court avoided addressing the Establishment Clause, like side of that issue by just procedurally dumping the case. And it was rightly I think decried as just a total cop out and like uniquely cruel. But you can see that the way that future litigants want to kind of get the court's attention is by leaning harder on a free exercise factual basis. So, you know, they're more eager to jump in to say, as we're gonna get to these cases that came up even later, they're more eager to analyze whether or not the prisoner is being denied free exercise of their religion in those last moments than whether, you know, the prison is violating the Establishment Clause. And of course, there couldn't be a situation where the two are more kind of, you know, there's, there's a ton of tension there between the Establishment Clause concerns of the government and like the free exercise rights of the prisoner and both are really heightened in that moment. And of course, you know, as Monica points out, there's also like the absurdity of the whole legal exercise when we're talking about it, not that it isn't important to protect the rights of inmates, the other constitutional rights of inmates up to the moment of their death, but it is pretty absurd that all this is taking place around the constitutionally appropriate way to put a citizen to death. It's hard and it's odd. But I think, I think most like the biggest gut reaction you have, I have, as someone who's working on these issues all the time and just a person who cares about fairness, is like the Establishment Clause part is the most like just gross because it's so clearly unfair.
Monica Miller: Yeah. I mean, it's like it's unfair and it's discrimination you're the court is saying, you know, a Christian litigant gets treated this way and a Muslim, you know, litigant or, you know, prisoner gets treated that way. I, I do wonder if the first case that went up to the Supreme Court, if that case had been a Catholic, prisoner, you know, from our lens, if we would've jumped in, let's just say there was a policy where there was no spiritual advisor and the Catholic wanted a spiritual advisor and then claimed a free exercise clause right to have one where we would stand organizationally in the, in that kind of case. I would see that as the Christians. I mean, I, my knee jerk reaction would be, I would still be like I'm against the death penalty, but secondly, I would see that perception like as the Christians like pushing the envelope part of that same Project Blitz, oh, this is just another accommodation. I, and maybe, maybe to my fault, like maybe that's not the appropriate way to look at it, but that would be how I'd see it.
Liz Cavell: Yeah. I mean, I would see us jumping in with the, with the Establishment Clause amicus brief that points out like, Hey, there's something more important going on than just like the free exercise squabbles amongst, you know, religious Christian, denominations of Christianity. There's a massive Establishment Clause violation that's harming everyone and that's happening or that's being perpetuated by the state of Alabama or whatever it is.
Rebecca Markert: Well, it's interesting that you brung up that hypothetical Monica, because that is exactly what happened. I mean, obviously after these other lines of cases, but in 2021 in Alabama, Alabama had decided then after the Murphy decision out of Texas, that they're gonna change their policy too and nobody is allowed in the execution chamber. And then they are set to execute Willie Smith who decides that he wants to have a pastor by his side at the moment of his execution. And so he goes and challenges the policy and argues that it violates his constitutional rights to free exercise and the federal law protecting an inmate's religious rights. So that case, it goes up to the Supreme Court and they come down and say that he is allowed to have a spiritual advisor with him in the execution chamber. So it's really interesting how we went from, you know, having just a Christian to, well, you should be able to have one spiritual advisor or no spiritual advisor. So all the states are like, let's just eliminate the security concerns, the Establishment Clause concerns, every single concern. And we're going to just not allow anybody there. So then the free exercise rights come up from these litigants because now they're claiming, well, I have a religious right to have somebody with me at the time of death.
Liz Cavell: Right. And then we're, you know, we've switched into the framework of analyzing as the court did in that 2021 case Dunn versus Smith. We're kicked into the courts, kicked into the framework of, okay, has the state of Alabama met their burden of showing that excluding all spiritual advisors from the execution chamber is necessary for our compelling state interest in security, in that room at that moment. So it's, you know, did you meet that burden with evidence below or did you not meet that burden? And that is where you get into the free exercise analysis on the merits.
Alison Gill: I'm curious why we're there already, I mean, is there a state RFRA that brings us there? Like, is it, I mean, we're talking about a neutral policy that applies to everybody. So why are we already asking about burdens and measuring strict scrutiny?
Rebecca Markert: He is claiming that he has a religious right under the statute, RLUIPA to have a pastor by his side and Monica, you actually at American Humanist Association probably have the most experience with this federal statue. Can you talk a little bit about that?
Monica Miller: Sure. So it's interesting because I actually don't have that much experience with RLUIPA in the sense that we don't bring those claims. We just, my humanist inmate cases have all been Equal Protection Clause and Establishment Clause. And I prevailed on both of those grounds, even in North Carolina. My first case was actually in Oregon federal district court on behalf of a federal inmate and that resulted in a nationwide injunction against the United States government, federal BOP. And now every prison has to recognize, every federal prison in the United States has to recognize humanism as a faith group option if an inmate requests it and they don't have, you know, if there's a sufficient number of inmates to meet that. So I've been able to just use free ex or the, the proper, you know I would see them as the proper channels because I don't see humanism neatly fitting into a religion, but that being said I'm comfortable talking about the religious land used in institutionalized person's act the most of this I actually somehow oddly enough remembered from law school as I started flipping back through this. But I remember the city of Boerne versus Flores case. And this is all just kind of nerdy law stuff about the proper role of Congress and enabling legislation. But there was the free, the RFRA statute, the fed, there was a federal RFRA statute that was enacted in order to create a higher burden of proof or they were calling it, reinstating it from this earlier case Sherbert versus Verner. But the idea was to make it more difficult for the government to put restrictions on religion, by making this strict scrutiny standard part of the law. And that means that the government has to show a compelling state interest that is narrowly tailored to meet those ends and that, and that there must be some sort of substantial burden on religion to sort of kick that into gear. What happened was the federal RFRA Congress had passed that vis-à-vis the, was it the tax and spend no, sorry. They passed the RFRA through the 14th amendments, enabling legislation to try to get it to attach to the states because normally the federal government has limited powers and it can't just regulate what the state's powers have, you know, it's our, that's our Federalist sort system. And so it was basically considered an overreach to have RFRA pass into the states through the 14th Amendment. So then Congress said, well, we still are determined to have this after the City of Warren struck it down, that's applied the states. So they reenacted it, reenacted RFRA just for prisons. That's the institutionalized persons part and for, for land use, but I don't think the land use gets litigated and I think there might be a reason for that. So all of this is to say that the RLUIPA statute is RFRA but only for prisons. And so it too creates that high standard of strict scrutiny even where it normally would not be strict scrutiny if it were a constitutional case.
Rebecca Markert: So what does that mean for our listeners?
Monica Miller: For our listeners that means that it's exceedingly more difficult for the government to enact general laws or neutral laws of general applicability. So a policy that says no spiritual advisors whatsoever, that's, that's fair, that's neutral that that applies, you know, to everyone the same way or, you know, on its face and that would normally, you know, if you challenged it that wouldn't be unconstitutional, but now with RFRA and RLUIPA there, the government or, or the courts would have more leeway to say, no, well even there there's a compelling interest in security you haven't shown that allowing, you know, a Buddhist priest to be in this room is the most narrowly tailored way to achieve that end. You could for instance, add another person, another security guard, you know, you can do other things to make it possible for that person to be in there, because that's the, we're gonna presume that that person has a right to have the accommodation they're seeking.
Liz Cavell: Right, so this is a statute that tells the courts: When you're looking at a religious burden like this, you need to analyze–
Monica Miller: It this way
Liz Cavell: The state needs to show this compelling interest and it needs to be narrowly tailored or the burden needs to be narrowly tailored to serve the interest. And people like I just did, are often conflating free exercise with analysis, with analysis under our RULIPA or the RRA statute, which is a similar operates in a similar way, but only binds the federal government because that's what they were designed to do. And there's a whole separate episode we could do on the constitutionality of doing this as Congress telling the courts how to analyze cases, but suffice it to say for this purpose that the courts have upheld RLUIPA and upheld RFRA as applied to federal action and so this is where we are. So, but it is, you are, I want to conflate those two because, it's the legislature basically enacting through statute into law, an older version of free exercise analysis that they preferred that was more strict. So I'm, you know, we have to get outta the habit of talking. You know, there's kind of free exercise, capital F capital E and free exercise, little F little E, going on when we're talking about the analysis, but what's really happening in these cases is the court analyzing the burdens. So, you know, whatever the policy is for spiritual advisors in the execution chamber, the court's analyzing it under RLUIPA, which is this standard of review that is more strict than just like your basic, what the courts have said is required under the free exercise capital F capital E.
Rebecca Markert: Getting back to the case in Alabama, June, 2021, Dunn versus Smith. Smith is challenging the Alabama policy banning all spiritual advisors saying that it violates his constitutional rights and the federal law that we just discussed protecting inmates' religious rights. So the decision comes down and Kagan is the one who writes it and she states that the state of Alabama has failed to justify why the policy of barring advisors from the execution chamber was necessary. She writes that Alabama has not met the burden of showing that the exclusion of all clergy members is necessary for prison security, Alabama, and many other states have allowed clergy to be present without resulting security concerns and she also mentions that in fact, two years prior, the state of Alabama allowed the prison chaplain to be in the chamber. And regardless you can find ways to deem the spiritual advisor trustworthy or a person who's not gonna pose a security risk. You can do background checks, you can do interviews with the spiritual advisor, you can make them sign a pledge that they're going to abide by the prison's rules. And they decide that the policy is not okay and that Smith should have the spiritual advisor of his choosing at the execution. Kavanaugh wrote separately saying, you know, actually the state's policy was non-discriminatory like I said before, it's probably fine. But he does note in that decision too, that states who want to avoid delays and executions should just figure out how to get all advisors into the chamber so that they don't have to argue these before the court and Kavanaugh and Roberts seem to agree. They joined that opinion that the states should comply with requests to allow a source of comfort for people who are being executed. So that brings us to the Ramirez versus Collier decision. We're back in Texas in September of 2021, Ramirez is on death row and he challenges the denial of his request for his Baptist pastor to not only be in the room, because now we know they can have a spiritual advisor in the room when he's put to death, but he also wants his pastor to engage in religious exercise, laying his hands on him and praying aloud as he's put to death, the Supreme Court in this case blocks the execution until a lower court can fully consider all of these religious liberty claims. Now this is the case where our coalition groups have decided to submit an Amicus brief, to talk about what can be done in the execution chamber. Our brief first argued that the death penalty is unconstitutional, but assuming we all rightly knew that they were not going to make that declaration in this case, whatever rule that they were going to craft about what a spiritual advisor or source of comfort could do in the room at the time of execution, we wanted that to be applicable to persons of all faiths and no faith. So everybody really the idea that everybody should have a source of comfort at the moment of their death but we also pointed out the absurdity that Monica was mentioning before. We're quibbling about religious rights of a person the moment that all of those rights will be extinguished forever.
Monica Miller: When I think about this, it's like I would want the most accommodations for that person possible in the moments before their death, as a human, you know what I mean? Like if they want, you know, chanting priests and you know, all sorts of religious, weird things like that, you know, I say weird esoteric things like whatever you need to feel at peace because what, what I feel like is happening to you isn't right. And so like just from a human standpoint, taking the law out of it. So I feel like I empathize there immensely. Yeah, it's just, it's at the same time, we've come up with legal standards to operate within this barbaric system and so we have to kind of accept it in order to make these arguments.
Rebecca Markert: And that really is the heart of our Amicus brief that we submitted, is just the humanistic side of, of this and that the death penalty in our opinion is unconstitutional under the 8th Amendment as cruel and unusual punishment because the heart of the 8th Amendment really is the preservation of human dignity and executing people is not dignified.
Alison Gill: I like how they, how the brief sort of makes the case, or it makes clear that really all these arguments are about quibbling over arranging deck chairs on the Titanic, right? I mean, they're, they're sort of arguing over these minor points when really they're about to sever or end all, all freedoms, including religious freedom. Anyway, I thought it did a really good job of that in addition to of course the Establishment Clause arguments that are made.
Liz Cavell: I wasn't an author on that brief, but in reading it, it was really fulfilling to just be able to kind of like, just we've talked about this before on this podcast, say the thing that no one is saying around like, you know, there's so much of this just like granular, like legal arguments. Across, you know, 50 Amicus briefs and, and all the oral arguments are just like, but what about this hypo? And it's, and, and just to be able to write the brief that says, you know, the human. Kind of the human side of what's going on and just call out the thing that makes it so absurd and infuriating, and just boil it down to like a really simple principle, like human dignity in this case just felt really satisfying. So it was an unusual brief, I think, for the coalition, but I think it was a good one.
Monica Miller: When you said sort of satisfying, I, or, you know, I felt the same way reading the part about the extinguishing of all rights by virtue of doing this. I mean, because it is like, why does it matter that he has a constitutional religious freedom right when he, you're about to end it by ending his life. And when we're talking about these other concerns, for instance, the victim's family having a right to watch it, like that came up in the oral argument. And also, again me, my stomach churn, because I was operating from some not like I was operating from some other premise, but like I kind of forgot that there was that aspect of it that, that not only is it predicated on the eye for the eye, but like that there's actually people who would want to watch this for their own sort of gratification. I understand that death is complex and that there's all sorts of ways to process things, but I can't fathom how that how that the witness being able to see because they were saying, oh, if there's a, a spiritual advisor in the room, that's gonna block the witnesses you know, in a Texas chamber or something that's smaller than the federal chamber. And you know, if there's a spiritual advisor or three people in the room, maybe the witness' family can't can't see or the victim's family can't see.
Alison Gill: Yeah. That goes back to the very purpose of what they claim the purposes for the, the death penalty. You know, it’s about vengeance, it's about retribution. There's a whole bunch of theories we could go into. But that's really interesting. I hadn't, I hadn't recalled that part.
Rebecca Markert: Well, it's interesting that again, this was the case I talked about at the beginning of the episode that this is the only case in this line of cases that actually gets moved from the emergency docket gets fast, tracked for an appeal and gets the full briefing at the, the Supreme Court and an oral argument. You don't see that in any of those other cases. And then we do get a written decision. It's eight to one in favor of Ramirez, Roberts actually writes the opinion for the court. Justice Thomas is the lone dissenter. Roberts says that Ramirez has shown that he's likely to win his religious liberty claim. They don't address the free exercise constitutional claim because Ramirez didn't actually bring it up before the court. So, the state must prove that the restriction furthers a compelling government interest and is the least restrictive means of furthering that, the court writes that Ramirez was asking for traditional religious exercise and Roberts goes into the rich history of prayer at the time of a prisoner's execution that dates back to the founding and even before talks a lot about what happened in England with prisoners that were being put to death, also mentions that the state can limit times of audible prayer so that they're not disruptive to the process, but that the categorical ban on religious touch is really not the least restrictive means of achieving the security purpose. And the same goes for laying hands on an inmate. You know, it doesn't have to be the arm where they're injecting the drugs to put him to death. They can lay hands on the leg and they've done that in other states, I mean, this is not rare. They've had people in chambers before. They also said that there was no concern about delay. He'd been seeking his rights for months and any delay was actually the state's fault and not Ramirez's. And of course they have to talk about the state of execution. Will he suffer irreparable harm because he won't be able to be engaged in his religious exercise in the final moments of his life and the court says, yes, he's gonna suffer a reparable damage. So this case gets sent back down to the lower courts to examine these religious liberty claims. Again, I mentioned Thomas was the lone dissenter and he really saw it as nothing more than an effort to delay execution. And he brings up this thought that the rulings only gonna create more litigation, more problems as inmates on death row are going to be seeking new religious accommodations. And he just really sort of sees the floodgate. This is also a concern that justice Alito brought up in oral arguments that, you know, this was just going to create an unending stream of variations of different types of religious accommodation requests. And I'm interested to hear, what do you guys think? Do you agree that that's what's gonna happen?
Alison Gill: I mean, it seems like a justified concern, we're talking about four cases in a new field that we haven't seen in just what a few years. I mean, it's, you know, it very well could and you know, a lot of these seem justified like these cases, especially the first one you were talking about seem really problematic from our perspective. But I just wanna remind you know, everybody, whenever we have courts nowadays, the ideological bias to the courts and especially the Supreme Court talk about religion, everything we all work for, the separation of religion and government is in danger to at least some extent like whenever they touch on it. Right? So, I mean these, these could definitely be a Trojan horse to sort of hurt, you know, our opponents are very fond of misquoting things or taking them out of context or using dicta to sort of say decisions don't use, don't say what they actually do say. So, I mean, these, a lot of these, especially as we move on, they seem like good justified decisions, but there's still risk here and if we see more of these, it might impact us.
Rebecca Markert: Absolutely. I mean the end result is the court is providing more religious liberty than it did four years ago.
Monica Miller: Exactly. And that's kind of what I was getting at earlier when I was like, it's, it creates such a weird nuance for us, because I, we, we take the stand of equality and the government can't play favorites and we're seeing that. But at the same time, by standing up for the Islamic or the Buddhist prisoner by saying, yes, they have a right to have these things too. If you give it to the Christians, we are on some level, you know, pushing the envelope a little bit towards those accommodations or towards the dicta in those decisions. But we're kind of powerless. Like, I mean, in terms of like, we, you know, we already have the death penalty, it's not going away right now, not with this court. So we have to operate within these parameters. But I guess one question I had for you folks is what is it? Is it necessarily a bad thing? If we continue to see more death penalty cases because death penalty is still legal and maybe talking about it more with the public and having religions that are against it, like the Catholic church is huge creating unlikely bedfellows with religious allies. If maybe this is an area for us to, to find common ground and maybe make headway, or if it's just gonna be more religious accommodations on top of a shit show.
Liz Cavell: Well, I do always have to probe a little bit further when there's like a small part of me that's like, I see your point Justice Thomas, because that like, you always have to think like maybe not Thomas, because he's so much more of an ideolog than the others. But if you look over the course of these five cases or whatever it was from Dunn versus Ray to the case that just came down, Ramirez, there is a whole group of Justices who in the course of two and a half years have gone back and forth on the side of the prisoners' religious rights versus the, you know, the side of the state to kind of move swiftly towards an execution. And Thomas, I won't say to his credit, but and others are, or Thomas in this case, the only one who's uniformly been on the side of the execution throughout these cases and not kind of gone back and forth in some of these ways that I think is to some extent has been arbitrary and totally like bogus, you know, like these delay, you know, analysis that started in Ray and they give lip service to it in every other case to be like, well, just wanna point out this guy made his request a month and so that was three more weeks. So, you know, so that's distinguishable, like it's all bullshit. And so, I mean, to some extent you're like, well, you know what good on you, Justice Thomas for just being a cruel monster consistently and not arbitrarily in a way that is infuriating. But, I also view this like, whenever I hear one of the super conservative ideologues saying like, oh, but the floodgate, especially in the death penalty context, I'm like, yeah, floodgates. I mean, these, there are so few of these cases, right, that are coming, that are even happening. This is an anomalous gross thing that's illegal in a large part of the country and that has practically even if not on the books been halted or, you know, been placed on moratorium many times over the course of many states' history. So we're not talking about the usual floodgates when we hear SCOTUS use that term. But I always think floodgates from Thomas is code for like, it's, the atheist are gonna come for this in some way, shape or form, you know, and then that's what they don't wanna see. They don't wanna see the broadening of the term religious liberty or, or, you know, the broadening, the broadening of the concept of free exercise to include, you know, things that they don't view as religion. And we used to hear Scalia come down on this too in oral arguments, which it's like, oh, but you know, then what about it's? It's like the ultimate hypo for oral argument. It's like, oh, so could the atheist just, you know, claim this free exercise. And it's like, you know, that's supposed to be like the slam dunk of oral argument hypos to show how, how dangerous the broadening of a free exercise right could be. And that's where I think, like Monica earlier, you were talking about like this ambivalence from our perspective, in terms of free exercise, because, you know, you do feel like, especially at the moment of an execution free ex you're, you know, you, I think we all see that free exercise is really important. And it's also like, who cares? Just let the condemned person have what it is they want in that last moment of–
Monica Miller: I would want a humanist person. I would want someone there, like, you know?
Liz Cavell: Right. But there's, there's the rub it's like, but then there's a part of us that knows our identity, like, if that were me in that chair.
Monica Miller: Yeah, no, I would, I would be the first case.
Liz Cavell: Yeah. Right. And so I think that's where the ambivalence comes from at least from me, from my perspective, it's like, I do feel it's the right thing for the government power to contract and for the rights of the person, the condemned person to be completely expansive, including free expansive religious liberty rights. But, there's also the part of me that knows that, that wouldn't apply to me that expansive definition of free exercise rights in that moment, wouldn't apply to someone with my religious identity and that feels crappy and wrong. And like that's not the right outcome. And so I think it's, I think that's what, that's what I hear when I read Justice Thomas saying like, just wait for the, you know, the floodgates and this is gonna get way outta hand. I think they don't like to see free exercise expanded to include nonbelievers and non-traditional spiritual groups.
Alison Gill: I mean you talk about the low number of cases having to do with death cases. Right. Do these, but I mean, is there anything in principle, what separates these from other types of cases in jails and prisons? Like what is, what is the differentiation here? I mean, we could see these sorts of principles applied more broadly, couldn't we?
Liz Cavell: Yeah, I think you're right. I think they don't capture the public like outrage in the way that these cases do, you know, these execution chamber cases just kind of like put things in perspective in a way that I think no other even prisoner cases, which are high stakes just don't. But I think you're right in principle, we don't want the court taking more like RLUIPA and prisoner cases so that they get to keep expanding and expanding the concept of religious rights, religious liberty rights.
Alison Gill: One distinguishing thing in this case was the discussion around the Prison Litigation Reform Act, or PLRA, where the court said that the court said that the petitioner had complied with their requirements under PLRA. But this is a really important piece of law that I feel like I should require a little bit of explanation. So this prison litigation reform act was really passed by Congress to restrict the ability of prisoners in jails to enforce their rights. So I kind of think of it a little bit, like the opposite of RFRA, if you will, like, it is the opposite. If, if RFRA sort of expands the ability to, for people to use the free exercise clause to access their, sort of, you know, rights, PLRA sort of does the opposite for the 8th Amendment. You can't, no, you can't even get into court to sort of justify or, or use your 8th Amendment rights in some ways like you can't even get access to it. And the biggest barrier is what's called exhaustion of administrative remedies. So it requires complete exhaustion, which means you have to jump through every hoop and go through every process that the prison sets up in order to sort of make an appeal, like, let's say you make your request to have your pastor, whatever in the chamber. And then they say, no, and then there's another process, another process they can set up however many processes they want. They don't have to be consistent. They don't even have to make sense. They can be completely different in terms of times there's no requirements on these processes. And by requiring complete exhaustion, PLRA makes it extremely difficult for people to vindicate their rights in court. And I think this might be another example of a place and, and, you know, I can't, I haven't I looked at the record closely enough to know, but this might be another example of a place where the court is sort of favoring certain people to get into, basically be able to defend their rights. And maybe it's because they are on death row, that the court is more, or maybe it's because they're Christian. I don't know. But I mean, it's a lot, most cases like PLRA prevents people from ever getting into court under a whole variety of different issues to defend their constitutional rights.
Liz Cavell: And it applies to prisoners and the, and like the bureaucratic appeals process within the prison that they are supposed to exhaust?
Alison Gill: Yes.
Liz Cavell: Okay.
Alison Gill: And like I was saying, there's no real requirements on what that looks like. It can be very Kafkaesque,
Liz Cavell: Right, right, right. That's interesting. That's beyond, like my knowledge, but that definitely raises some questions.
Rebecca Markert: There is a lot at play here in this case too, because I, going back to Justice Thomas and his dissent saying this is going to just open the floodgate. There is a real concern. And there's a lot of commentary about these delays in capital cases. I mean, it's kind of the name of the game, right? You're not going to win if you're representing these people who are condemned to death. So the name of the game is really a delay, delay, delay, so that you can extend the life as long as possible. And I think he is talking to that a little bit too. Like I know this game and this is just going to create like frivolous delays. And really, we should just get down to the business of executing this person.
Liz Cavell: Right. I think you're right. I do think you're right, that there is a big piece of his ideology that is just consistently, I am pro death penalty and like, you know, all this procedural stuff is just like way beyond what the Constitution could ever be thought to require. So who cares?
Monica Miller: Yeah.
Rebecca Markert: Well, I think that this latest decision doesn't really quell any of our concerns about the trend from the Supreme Court that continually privileges religion. And I don't think that this is going to be the end of this line of cases. I think we will see more manifestations of religious accommodation requests possibly also from the non-religious and non-believers as we move forward. But I wanna thank everybody for listening and really appreciate the discussion today.
Liz Cavell: Thanks for listening to the We Dissent Podcast, I'm Liz Cavell.
Alison Gill: I'm Alison Gill
Monica Miller: I'm Monica Miller
Rebecca Markert: And I'm Rebecca Markert. You can learn more about us and our podcasts at we-dissent.org. We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Other production support comes from James Phetteplace and Greta Martens. Audio engineering is provided by Audio for the Arts in Madison, Wisconsin.
Thanks for listening.
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