The Supreme Court’s decision last month in Ramirez v. Collier was noteworthy for several reasons: first, for its outcome—a strong vindication of the RLUIPA claims of a death row inmate; second, for its place in the Court’s recent religious freedom jurisprudence; and finally, for its lessons about applying the RLUIPA standard.
Facing execution in Texas as punishment for committing a brutal murder, John Henry Ramirez sought to have his pastor not only accompany him into the execution chamber, but also (i) pray audibly and (ii) physically touch him during the execution proceeding. When Texas denied his requests, he brought suit under RLUIPA. Ramirez lost in the district court and in the Fifth Circuit but found a more receptive audience at the Supreme Court, which stayed his execution, granted cert, and heard argument on an expedited basis on his request for a preliminary injunction. And then it delivered Ramirez a resounding win, with eight Justices agreeing that he is likely to prevail on the merits of both of his claims. (Justice Thomas dissented alone.)
This may seem at first blush a somewhat remarkable outcome, particularly in light of the seemingly quite strong state interests—in the security and solemnity of the execution chamber, among others—invoked by Texas. But the Court sent a strong message several years ago, in its unanimous decision in Holt v. Hobbs (2015), that RLUIPA provides “expansive protection for religious liberty”; here, the Court leaves no doubt that RLUIPA’s protection is expansive indeed, even in the highly sensitive setting of the execution chamber.
Ramirez’s victory is perhaps even less remarkable when viewed against the backdrop of the Supreme Court’s recent close attentiveness to the rights of people of faith and religious entities. For example, during the COVID-19 pandemic, the Court ruled repeatedly for church entities and other religious groups challenging restrictions on worship. In last term’s blockbuster religion case, Fulton v. City of Philadelphia, the Court held unanimously that Philadelphia violated the Free Exercise clause when it refused to contract with a Catholic entity for foster care services. Other recent rulings have solidified protections for employment decisions made by church entities, and have declared that religious schools cannot be excluded from state programs that provide tuition aid for use at private schools. And in the Holt case, the Court ruled unanimously for a prisoner seeking permission to grow a half-inch beard consistent with his Muslim beliefs.
In short, this Court has shown keen interest in taking cases involving religious liberty protections in a variety of contexts, and then, as in Holt, recognizing the “expansiveness” of those protections. Ramirez fits squarely within this trend.
Perhaps the most impactful legacy of this decision will be its contributions regarding RLUIPA analysis. At oral argument, several of the Justices wrestled with how to define Texas’s compelling interest and how to evaluate the least-restrictive-means prong. The majority opinion does not linger on compelling interest, essentially accepting Texas’s asserted interests as compelling. But it has more to say about least restrictive means, on which it concludes that Texas failed to carry its burden. First, it seems to allow that a state could successfully maintain a more restrictive policy than a fellow state or the federal government—in other words, the existence of one or two comparators that are more permissive is not necessarily dispositive—but the state must explain precisely why it is differently situated than the comparators it is declining to emulate. Here, it was not sufficient for Texas to declare that Alabama’s or the federal government’s approach to audible prayer is unworkable in Texas, without more. Second, the Court emphasizes that RLUIPA requires a specific, case-by-case analysis; the state must show why the requested approach would not work in this particular case. Finally, it reiterates that the state carries the burden to rebut “obvious alternatives”—even if they have not been raised by the plaintiff.
Justice Kavanaugh’s concurrence revisits questions he had raised at argument about both prongs, probing in particular how much risk of disruption of the execution a state must tolerate in order to accommodate an inmate’s religious liberty claim. He highlights that, in the face of difficult questions about assessing compelling interest and least restrictive means, history and state practice both factored into the Court’s analysis. Taken together, Kavanaugh’s concurrence and the majority opinion offer practice points for future RLUIPA litigants, and flag important questions about applying the RLUIPA test that will likely continue to arise.
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