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The Final Act of Faith: Religion, the Death Penalty, and Ramirez v. Collier

November 12, 2021 | Joe Brennan

Edited by Irene Kim

The death penalty in the United States has long been the subject of extensive litigation. Everything from complicated issues of morality, such as whether the government may execute someone who does not understand why he is being executed, to banal formalities, such as whether the government must disclose what pharmacy lethal drugs are acquired from, has been debated and re-debated before state and federal courts at every level. One particular issue, however, has emerged only recently. That is the issue of whether an inmate’s spiritual advisor may be present in the execution room, and, if so, what he may do while there. This issue has emerged only in the past few years, and litigation is still ongoing, especially in the case of Ramirez v. Collier, which is scheduled for argument in November of 2021 before the Supreme Court. That said, it is clear based on the history of this issue that Ramirez, a Texas death row inmate, is likely to prevail.

The first time this controversy arose was in Alabama in February of 2019, when a Muslim inmate named Dominique Ray was executed for a 1995 murder. At that time, Alabama allowed only a state-employed Christian prison chaplain in the execution room during the execution. Ray requested to have a Muslim imam present, but this was denied. He then filed a lawsuit against the state of Alabama alleging that the state’s willingness to permit a Christian clergyman but not a Muslim imam violated the Establishment Clause of the First Amendment, which in a nutshell bars the government from favoring one religion over another. There are exceptions however, and Alabama argued that its interest in maintaining security and dignity during the execution justified barring anyone who was not a Department of Corrections employee from the execution room. This lawsuit ultimately made it to the Supreme Court, but was dismissed on procedural grounds. Ray was executed with his imam watching from the witness room on February 6th, 2019.

At about the same time, a lawsuit over a very similar dispute was proceeding against Texas. The plaintiff in that case was Patrick Murphy, a Buddhist inmate sentenced to death for his involvement in the death of a police officer during a robbery in Dallas in 2000. Texas’ policy at the time was similar to Alabama’s, in that it permitted chaplains employed by the Texas Department of Criminal Justice in the execution room, but not other clergy. Texas inmates had their choice of a Christian chaplain or a Muslim imam. Murphy’s lawyers, much like Ray’s, argued that this policy violated Murphy’s First Amendment rights by giving Christian and Muslim inmates better treatment than inmates of other religions. In March of 2019, the Supreme Court agreed with Murphy and stayed his execution, holding that the state could not permit some clergy in the execution room while barring others. The Court specifically held that Texas’ rationale for the policy, which was very similar to Alabama’s, was insufficient grounds to infringe on the religious freedom of inmates.

Texas responded to this ruling by banning all clergy-of all religions, whether state-employed or not-from the execution room during executions. Alabama, realizing that its own similar policies would not now pass constitutional muster, did the same and banned all clergy from being present in the execution room during executions. This remedy was actually suggested in the Supreme Court opinion written by Justice Kavanaugh in Murphy’s case. Kavanaugh indicated that such a measure would be religion-neutral, and thus sufficient to prevent further claims of deprivation of rights. As with all matters related to the death penalty, these policies immediately led to further litigation.

A challenge was brought against Alabama’s new policy by an inmate named Willie Smith, who was scheduled to be executed for a murder and robbery in 1991. He requested that his pastor be allowed in the execution room, and his lawyers argued that not permitting this amounted to a violation of his First Amendment rights. The Eleventh Circuit Court of Appeals agreed, and granted an injunction barring Smith’s execution until his pastor was allowed in the execution room with him. Alabama appealed this decision to the Supreme Court, which also found for Smith. The Court rejected the security justification, which was again offered by Alabama, saying that the state had other mechanisms to keep problem clergy out, such as pre-execution interviews and background checks, and mandating the signing of an agreement to follow all the rules on pain of some penalty. A total ban, the Court decided, was not the least restrictive means of ensuring execution security, and therefore not a justifiable infringement of Smith’s rights.

As before, there was a similar action in progress against Texas. Texas had also changed its rule and now permitted clergy to be present in the execution room. However, those clergy were not permitted to speak or to touch the inmate. John Ramirez, sentenced to death for a 2004 robbery and murder, has brought a lawsuit arguing that this is unconstitutional. He wants his pastor to be allowed to lay hands on him and say prayers aloud as he dies. This action ultimately reached the Supreme Court, which overruled the Fifth Circuit Court of Appeals and stayed the execution. The case is scheduled for regular argument in November of 2021.

In light of the general trend in this area since 2019, it seems likely that John Ramirez will get his wish. For one thing, the Supreme Court has taken a broad view of inmates’ religious rights in the cases just described. The only inmate to lose such a challenge thus far lost on procedural grounds, rather than on the merits of his argument. In every other case, the Supreme Court has given inmates what they wanted. Additionally, the applicable law is favorable to inmates’ claims. The Religious Land Use and Institutionalized Persons Act, which protects the First Amendment religious rights of inmates, was cited in all of the aforementioned cases. The Act provides that the government may not “impose a substantial burden on the religious exercise of a person…confined to an institution” unless the imposition of the burden “is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” While the courts have consistently held that ensuring secure and orderly executions is a compelling governmental interest, a ban on spiritual advisors being in the execution room or touching inmates is demonstrably not the least restrictive means. For one thing, other executions have been conducted wherein clergy were allowed to touch the inmate, as well as to speak. In federal executions in 2019 and 2020, outside (non-Bureau of Prisons employee) clergy were allowed into the execution room and were permitted to touch the inmate and pray aloud, exactly what Ramirez is requesting. One Catholic priest was even allowed to anoint the inmate with oil and administer communion after the inmate was already attached to the gurney. All of these executions went off without a hitch. That priest is part of a group of clergy who filed an amicus curiae brief with the Supreme Court in support of Ramirez’s case, so the Supreme Court will be aware of this. Furthermore, Alabama has agreed to a similar policy. Willie Smith, the inmate who wanted his pastor allowed into the execution room, later requested that the pastor be allowed to lay hands on him and pray out loud. In June of 2021, Alabama agreed to this and conceded that its rule against touching and talking was unlikely to survive further litigation. Both the federal and Alabama policies will doubtless be cited by Ramirez’s lawyers, and both severely undermine Texas’ claim that permitting outside clergy to come into the execution room and touch and pray over the inmate is the least restrictive means of ensuring a secure and orderly execution. 

In conclusion, the religious rights of prisoners being executed have expanded recently and are likely to continue to expand. In every major case decided on the merits in the last few years, the inmates have prevailed. Furthermore, in Ramirez v. Collier, currently scheduled to be argued before the Supreme Court in November, Ramirez is very likely to prevail.

Brennan is a junior majoring in Economics with a minor in History.


[1] Al executes Domineque Ray for 1995 killing of teen, (last visited Oct 11, 2021)

[2] Al executes Domineque Ray for 1995 killing of teen, (last visited Oct 11, 2021)

[3] Al executes Dominique Ray for 1995 killing of teen, (last visited Oct 11, 2021)

[4] Federal judge delays execution of “texas Seven” prisoner over claims of religious discrimination The Texas Tribune, (last visited Oct 11, 2021)

[5] Murphy v. Collier Casetext, (last visited Oct 28, 2021)

[6] Texas bans clergy from Death Chamber after Supreme Court Blocks Execution The Guardian, (last visited Oct 11, 2021)

[7] Texas bans clergy from Death Chamber after Supreme Court Blocks Execution The Guardian, (last visited Oct 11, 2021)

[8] Dunn v. Smith, 592 US

[9] Dunn v. Smith, 592 US

[10] Supreme Court puts execution of Texas man on hold in dispute over Pastor’s Access CNN, (last visited Oct 11, 2021)

[11] 42 U.S. Code § 2000cc–1 – Protection of religious exercise of institutionalized persons Legal Information Institute, (last visited Oct 28, 2021)

[12] Bureau of Prisons Execution Protocol Death Penalty Information Center, (last visited Oct 28, 2021)

[13] Brief of Spiritual Advisors and Former Corrections Officials as Amici Curiae Supporting Petitioner, (last visited Oct 27, 2021)

Photo Credit: Art Lien

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