Religious sincerity and executions

My good friend Nathan Chapman passed these thoughts on Ramírez, which I post with his permission.

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John Henry Ramirez was convicted of murder and sentenced to death by a Texas court in 2008 for the murder of Pablo Castro. Ramirez now argues that he has the right, under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment, to ask his pastor to pray audibly and “impose on him hands “while he dies. The Supreme Court is considering whether allowing the pastor to enter the death chamber, but not allowing him to audibly pray and / or lay his hands on Ramirez, constitutes a “substantial burden” on Ramirez. Ramirez’s religious freedom. I joined an amicus brief with other academics arguing that this is the case.

The court heard oral argument in the case on November 9. Several judges expressed concern that Ramirez’s allegations may not be sincere, that courts lack the jurisdiction to rule on the sincerity of a religious accommodation claimant, and that finding for Ramirez would lead to a flood of religious freedom lawsuits (including those based on insincere allegations) to delay executions. It is clear from questioning that some of the judges were grappling with a legal question that the Court has never resolved: Can or can a court rule on the sincerity of a religious accommodation claimant? In short, yes. When a claimant’s sincerity is in doubt, the courts should decide the issue without ruling on the precision religious beliefs of the applicant. As the court believes Ramírez, he must keep in mind that his decision may have implications far beyond death penalty cases, potentially reaching all cases of religious accommodation.

Several principles should be used by the Court to judge religious sincerity. (Much of this is from an article I published several years ago in the Washington Law Review.)

1. A requester for religious accommodation must be sincere. If the request is not sincere, it is not really a request for religious accommodation – it is just a request for legal exemption, fraudulent on top of that.
2. The establishment clause does not prevent the government from determining whether an applicant is sincere. Jackson J. eloquently argued that in a dissenting opinion in Ballard v. United States, 322 US 78 (1944). The thrust of his argument was that a court cannot assess religious sincerity without also assessing the veracity of the religious claim. Sometimes the judges hinted at the same in oral arguments and dictated them. It’s wrong. There is a difference between sincerity and correctness. The government cannot assess the accuracy of a religious claim (Did Moses really receive the Ten Commandments from God?) Without raising serious concerns about the Establishment Clause. To refuse accommodation because the government believes that a religious belief is inaccurate is tantamount to official disfavour of a religion and unspoken orthodoxy. This is not the case with sincerity (does the applicant believe that the Ten Commandments are from God?). The sincerity inquiry is not about the correctness of the belief, but whether the applicant actually holds it.

The government has a lot of experience in determining religious sincerity. The provisional committees have ruled on the sincerity of those who demanded conscientious objector status in Vietnam. The prison authorities sometimes determine religious sincerity. The courts too, but rarely. Why not more often? Most requests for religious accommodation are against the government, and the government rarely disputes the sincerity of a requester. There are probably several reasons for this: many complaints are obviously sincere; sincerity of judgment can be fact-hungry (read: resource-hungry); and to pretend that someone doesn’t really have their alleged religious beliefs, especially if they are widely held, can be impolitic. Prison officers and employers faced with requests for religious accommodation tend not to have all of these concerns, and they have a vested interest in avoiding accommodation (security and money, respectively), so they are more likely to challenge sincerity. of an applicant. Case in point: Many employers demanding the COVID-19 vaccine are forcing religious objectors to fill out lengthy questionnaires to rule out false claims.

3. The courts are professionally competent to determine sincerity. They do this all the time in cases requiring a display of willful dishonesty. There is nothing about religious claims that makes them particularly difficult. Religious beliefs are important, personal and sometimes unknown. These are reasons why the courts should act lightly and humbly, but not to avoid the issue altogether.

Thus, the government can, can and sometimes must rule on the sincerity of requests for religious accommodation. But how? What evidence is salient? How do you avoid a judgment on the correctness of a claimant’s beliefs?

1. Consistency is relevant. Did the applicant play hokey-pokey with the belief in question? But: people change their religious beliefs. The freedom to do so is part of religious freedom.
2. Religious background. Is there a community or tradition that holds the belief or is it idiosyncratic? The government cannot favor the big religions or the traditional religions over the small and new ones. If religion is a party, there may be more reason to suspect that it is a smokescreen. But: most religious traditions have many sub-traditions. What could be more American than religious entrepreneurship? Disagreeing with religious authorities or tradition does not mean that someone is not sincere.
3. Incentives. Are there any powerful non-religious reasons for making this claim? Wearing a kippah, not so much. To avoid military conscription? Delay execution? You bet. This does not mean that such a claim is false, just that it might warrant further examination.

In light of these principles, let us consider some of the questions of judges in Ramírez. (I’m paraphrasing.)

Q: What if we think Ramirez is insincere?

A: Send the case back to the lower court for investigation into its sincerity. The record does not reveal all of the relevant facts. (Unless the court wants to resolve the case against Ramirez on legal grounds. See below.)

Q: Hypothetical: What if an inmate claims their religion takes three months to convert and files the claim just before a scheduled execution.

A: He may be entitled to religious accommodation. Under the RLUIPA and the Freedom of Religion and Restoration Act (which applies to the federal government), the questions are whether the applicant is sincere, whether refusing the application would place a substantial burden on his or her religious exercise and whether denial of the request is the least restrictive way for the government to achieve a compelling government interest. He is absolutely crucial distinguish between these surveys. Errors in difficult cases will metastasize and pervert doctrinal analysis in ordinary cases.

Someone could make a claim which, if sincere, would pass the substantial burden test. But he may not be sincere: he may be claiming to delay the execution. How do we know? See above.

The requester may be sincere, but refusing the accommodation may not impose a substantial burden on the exercise. This seems unlikely under the conversion hypothesis and in Ramírezis the case. But that doesn’t mean the claimant wins.

Even if the applicant is sincere and the refusal would be a significant burden on their religious practice, the government may have a compelling government interest in avoiding the delay. Or, in Ramírez, keeping the pastor away from the inmate and / or silent during execution.

Insofar as Ramírez (or other execution cases) impose a unique burden on government and other parties due to the unique nature of executions, the court should decide the case on the grounds that the government has a unique compelling interest in minimizing risk during an execution – and not on the ground that Ramírez is not sincere (unless the government can prove it is not) and not on the basis that it is not a substantial burden.

Q: Should these cases be decided on a case-by-case basis?

A: Yes. The legal burdens on claimants and governments are based on many facts. The RLUIPA, in particular, applies to all institutionalized people. There is no exception for those who are executed. There are many procedural exceptions and additional appellate review for death penalty cases (and rightly so). But there is no RLUIPA exception for them.

Q: Our old friend the slippery slope: a decision for Ramírez get other detainees to file complaints, and will that not clutter the role of the Supreme Court?

A: Maybe. With all due respect to the Supreme Court, facilitating its work is not a “compelling government interest” under the RLUIPA. The job of the court is to apply the law. If the complaints are not sincere, they can (and should) be rejected on this ground. If the complaints are genuine, they can (and should) be adjudicated. Much more is at stake in these claims – for the plaintiffs, for the law of religious accommodation, and for a decent society – than the effectiveness of state enforcement procedures or the convenience of federal courts.