The Supreme Court is expected to rule on whether inmates have the right to specific religious rites in the death chamber.
Domineque Ray had a last request before the state of Alabama took his life in February 2019. The Muslim man, convicted of killing a 15-year-old girl in 1995, wanted an imam beside him as he was put to death.
But Ray's request was denied — because the prison in Atmore, Alabama, only had a Christian chaplain on staff — and he was executed in isolation.
Just a month after Ray's execution, Patrick Murphy, a Buddhist man on death row in Texas, asked to have a Buddhist chaplain in the execution chamber. But the state only had Christian and Muslim clergy on staff.
This time, the Supreme Court agreed to take up the issue, temporarily sparing Murphy's life in the process. Murphy is still on death row.
Religious liberty advocates cried foul, citing religious discrimination over the disparate treatments of the men of different faiths.
The two years that have followed have seen courts and states embroiled in conflicts over the rights of incarcerated people on death row to spiritual care and how it's administered.
On Nov. 1, the Supreme Court will hear the case of John Henry Ramirez, who is requesting his pastor be allowed not just to be in the execution chamber but also to touch him and pray out loud with him.
Legal experts are looking to what could be a sweeping ruling with the potential to smooth out the differences in inconsistent execution practices across the country once and for all.
"If the Supreme Court rules the right way, it could have a very expansive impact on how they deal with these issues," said John W. Whitehead, president of the Rutherford Institute, a religious freedom and civil liberties nonprofit on the front lines of the legal battle.
In a concurring opinion on the stay in the case of Murphy, Supreme Court Justice Brett Kavanaugh in March 2019 instructed states either to allow clergy of all faiths into the execution chamber or to prohibit them all to avoid the issue of religious discrimination.
Texas opted to prohibit, announcing in April of that year that it would bar clergy from the execution chamber. Alabama followed suit later in 2019. But, as prison officials would soon learn, prohibiting spiritual care entirely created problems for Texas, opening the state up to religious discrimination lawsuits.
"Equality of deprivation is a false equality," said Chris Pagliarella, legal counsel with the Becket Fund for Religious Liberty, a law firm that has argued for clergy access before the Supreme Court. "Both the first amendment and civil rights laws grant an affirmative right to being able to exercise your faith in prison when it can be done so consistent with the safety of others."
Texas did away with its clergy ban in April 2021 without explaining what prompted the change. But after a wave of death row stay requests in the two years following its decision in Murphy v. Collier, the Supreme Court has now been tasked with deciding to what extent clergy should be included as incarcerated people are about to be put to death, including whether they can incant prayers out loud, touch their subjects, or anoint them with oil.
In September 2021, two Texans on death row had their executions suspended on the grounds that their religious rights were being violated. Those men were Ruben Gutierrez, who requested a Catholic chaplain be present with him, and Ramirez, whose case will be argued before the Supreme Court soon.
A third, Willie Smith III, came to an agreement with Alabama earlier in September in a victory for religious liberty advocates. To avoid his lawsuit going to court, Alabama will allow Smith to have his pastor hold his hand, anoint his head with oil, and pray with him at the beginning of the execution.
All of these men's appeals rely heavily on the Religious Land Use and Institutionalized Persons Act of 2000, which specifically mandates, "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
But trying to assess whether Texas is placing a substantial burden on Ramirez's religious exercise "in the least restrictive means" is difficult, experts say.
"So long as the death penalty is constitutional, states have a compelling interest in carrying the executions out," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that doesn't take a stance on the legality of capital punishment but is critical of its administration. "At some point, the right to exercise religion is overcome by the states' interest in carrying out the execution. The question that the Supreme Court has the opportunity to answer is, what's that point?"
Texas argues that having a pastor in the chamber and letting him touch Ramirez as they pray together could raise security concerns. Religious liberty advocates say that claim is ridiculous.
"I've been in a prison and represented people. Before you go in that door, you almost have to go down without any clothes on, they do such a good job," Whitehead said. "You can't get in that door of the prison chamber, again, they have security devices, any of that is a false argument."
"It saddens me and it angers me that we as a nation, our government acting in our name, seems to have totally lost its way in terms of common human decency," Sister Barbara Battista told the American Independent Foundation. Battista, a Catholic nun from Indiana who ministered to two men in their final moments during the Trump administration's end-of-term killing spree of 13 executions, said, "To deny a person in their last moments of life another human being who's there not as part of the killing machine just seems such an abuse of power."
Battista, having been in the actual execution chamber twice, similarly couldn't fathom how it would be risky to have a spiritual adviser present.
"The U.S. marshal is there, the executioner is there, there's a warden's representative — at least in the federal system, there are three other people in that room — I don't understand what is meant by a security risk," she said. "What in the world could you possibly do?"
A member of the Sisters of Providence based near Terre Haute, the site of a penitentiary where federal executions are carried out, Battista says she has seen the importance of allowing clergy into the room firsthand.
When she ministered to William LeCroy, whom the Trump administration executed in 2020, she said she could discern the comfort he and his family felt in his final moments, telling the American Independent Foundation:
They have been incarcerated and most of them in isolation, have not any human contact except maybe their correctional officers or a medical person. No physical touch for all those years, and then to be ushered into this very tiny room, strapped down on a table … legs strapped down, shoulders strapped down, chest strapped down, and there are three other people in the room, if you don't count the clergyperson, there to make sure you're successfully killed. I can't imagine how isolating that must be. How dehumanizing that must feel.
To have a clergyperson there at least recognizes, this is another human being, this person has a relationship with their creator, however they name: Allah, Yahweh, God, Holy One, mystery, however they name that — the fact that they have a higher power, that they recognize that there's something beyond our human life, and to have the comfort and consolation of their faith of whatever denomination, of whatever tradition — to me, that is at least a shred of decency in a horrendous, awfully violent, highly orchestrated process.
Published with permission of The American Independent Foundation.