The U.S. Supreme Court returned to the subject of religious rights Tuesday, but this time the court considered whether death row inmates are entitled to have a spiritual adviser in the execution chamber and whether the religious adviser should be permitted to pray for and touch the condemned.
The subject of spiritual advisors in the death chamber has, at times, divided the court's conservative supermajority and it has also at times embarrassed the court, as minority religious advisers have sometimes been excluded from the death chamber.
In 2019, after allowing an Alabama Muslim to be put to death without an imam at his side, the court blocked Texas from doing the same thing to a Buddhist inmate. In a concurring opinion at the time, Justice Brett Kavanaugh said that states could solve their spiritual adviser problem in the death chamber by allowing all religions in or none.
Tuesday's case involved John Ramirez, who was sentenced to die for stabbing to death a father of nine during a convenience store robbery while on a drug binge. Four years ago, he claims, he got religion, and since then his execution date has been postponed four times, as the courts and the state of Texas have wrestled with his desire to have his Baptist pastor, Dana Moore, with him in the death chamber and to have the pastor able to pray and touch his foot.
At Tuesday's argument, many of the court's conservatives viewed his claims with distinct disdain. Justice Clarence Thomas suggested that Ramirez was just "gaming the system."
Justice Kavanaugh pummeled defense lawyer Seth Kretzer with questions, suggesting repeatedly that the state has a clear interest in a risk-free execution.
"Why isn't that a compelling interest when the state says we want the risk to be as close to zero as possible," asked Kavanaugh, adding that" if we allow touching and the like, the risk increases."
Justice Samuel Alito chimed in, saying that that if the defense were to prevail in this case, the court would face "an unending stream" of cases.
"If pastor Moore touches Mr. Ramirez's foot what's going to happen when the next prisoner says, 'I have a religious belief that he should touch my knee....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 cases."
Justice Kavanaugh asked what the state should do if a death row inmate wants "bread and wine," or "a hug." Would we have to allow it that, too, he asked. A few minutes later, an exercised Kavanaugh noted that we haven't mentioned the victims." What, he asked, would the effect be on them?
Representing the federal government, Deputy Solicitor General Eric Feigin agreed that states may limit who is in the death chamber, but the experience of the federal Bureau of Prisons, he told the justices, is that a categorical ban is not the way to go. In the 13 federal executions that took place in the waning days of the Trump administration, 11 of them were with a spiritual adviser, who could pray, and one of whom touched the condemned man in the moments before the lethal injection was administered. But in no case, Feigin said, was the spiritual adviser allowed to be closer than 9 feet to the inmate once the lethal dose began to be administered, because, he said, if anything went wrong, it would be "catastrophic."
Justice Amy Coney Barrett, however, questioned the concept of zero risk. "I'm just wondering if it's legitimate. ... If they said we want the risk of prison rioting or fighting to be 0% that would permit the prison ... to say there can never be any kind of prayer service or gathering," she said.
Attorney Feigin conceded there is no such thing as zero risk. Asked by other justices how the Bureau of Prisons had reached the accommodations that it did with 11 condemned men, he said that it was done on a case-by-case basis, essentially through as much accommodation as reasonable.
Last up was Texas Solicitor General Judd Stone. Under skeptical questioning from the court's liberals, he conceded that allowing spiritual advisers in the death chamber to pray and touch had been a practice in Texas for decades, but, he said, that was because the chaplains back then were state employees.
What about other states that allow it now, asked Justice Elena Kagan. Do you know of any interference in those states?
No, conceded Stone.
A decision in the case is expected by the end of the current Supreme Court term.