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Opinion | On the Supreme Court, Religion and a Scheduled Execution

The state’s history on the question of clergy in the execution chamber is convoluted to say the least. Texas employed only Christian and Muslim chaplains when, in 2019, a Buddhist inmate sentenced to death requested the presence of a Buddhist spiritual adviser at his execution. The state refused, and the Supreme Court, over the dissenting votes of Justices Gorsuch, Samuel Alito and Clarence Thomas, granted the inmate, Patrick Henry Murphy, a stay of execution. The court’s unsigned order told the state to permit Mr. Murphy to be accompanied by his own spiritual adviser “or another Buddhist reverend of the state’s choosing.”

In a concurring opinion, Justice Brett Kavanaugh wrote that to avoid discriminating against particular religious denominations, the state must either permit clergy of all religions into the execution chamber, or none. “The choice of remedy going forward is up to the state,” he concluded.

Texas responded by excluding all clergy from the execution room, a policy that another Texas inmate, Ruben Gutierrez, challenged the following year. The stay of execution he won from a federal district judge was vacated by the U.S. Court of Appeals for the Fifth Circuit. The Supreme Court vacated the Fifth Circuit’s action and sent the case back to the lower courts for further consideration of whether the state could justify excluding all clergy.

Rather than continuing to defend the exclusion, Texas yielded and announced in April that state-employed chaplains or outside spiritual advisers would be permitted in the execution chamber. But the state has drawn the line at touch and audible prayer. “An outsider touching the inmate during lethal injection poses an unacceptable risk to the security, integrity, and solemnity of the execution,” the state told the court in its brief. “Vocalizing during the lethal injection would interfere with the drug team’s ability to monitor and respond to unexpected occurrences.”

There are procedural obstacles that might prevent the justices from reaching the merits of Mr. Ramirez’s challenges to the current Texas policy; the state argues that the inmate failed to pursue his claims through the prison system’s administrative process, which is a gate-keeping requirement for prisoners seeking access to federal court.

If the court does proceed to the merits, it will have to decide whether either the First Amendment’s guarantee of the free exercise of religion or a federal law called the Religious Land Use and Institutionalized Persons Act gives Mr. Ramirez what he wants. An execution chamber is a fascinating place for the court’s traditional deference to prison officials and its more recent deference to religion to meet.

But whatever happens following the Nov. 1 argument, Mr. Ramirez will have obtained something that few other death row inmates ever get these days: a Supreme Court audience.

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