Last Rights:  Supreme Court Concludes Death Row Inmate May Succeed in Asserting Undue Burden of His Religious Exercise Because State Denied Request for Minister’s Presence, Audible Prayer, and Touch During Execution 

Ramirez v. Collier, Executive Director, Texas Department of Criminal Justice, No. 21-5592, 595 U.S. ____ (March 24, 2022).  Opinion awarding petitioner Ramirez injunctive relief, reversing the decision of the Fifth Circuit affirming denial of a stay of execution, and remanding the case for further proceedings.


In 2004, John Ramirez stabbed Corpus Christi convenience store worker Pablo Castro twenty-nine times, an act that killed Castro and yielded $1.25 for Ramirez and his accomplice.

 

Ramirez fled the United States, but was apprehended near the Mexican border several years later, then was convicted of murder in the course of roberty, a capital offense.

 

Ramirez has assiduously yet unsuccessfully sought relief from his conviction.

 

Ramirez has sought to stay his execution because the State of Texas has denied him the presence of his spiritual advisor during his execution to provide audible prayer and to touch Ramirez during administration of lethal injections.  

 

Texas has promulgated several policies concerning the presence of religious advisors during executions. Although at times Texas has precluded all spiritual advisors from being present in the execution chamber, Texas has revised its protocols to permit the presence of spiritual advisors in the execution chamber.  

 

Ramirez grieved the state’s denial of his request that his spiritual advisor be permitted to pray aloud and to lay hands on Ramirez during Ramirez’s execution.  

 

Ramirez asked the United States Supreme Court to preliminarily enjoin the state from executing him prior to resolution of his claim under the Religious Land Use and Institutional Persons Act (RLUIPA).

 

RLUIPA provides religious free exercise protections that, because of the act’s procedural structure, may be more adventitious to claimants than First Amendment claims.  RLUIPA requires the state to demonstrate that a substantial burden on the exercise of a sincere religious belief must meet “strict scrutiny” standards even if the law in question is one of general applicability.  

 

The Supreme Court in Ramirez’s case perceives that Ramirez’s request that his pastor be present, pray audibly, and lay hands on him as he is executed reflects a sincerely held religious belief.

 

The Court has concluded that Texas cannot substantiate its revocation of the time honored practice of vocal prayer because, as Texas asserts, there exists a compelling government interest in being able to minotaur sound within the execution chamber, which, the state posits could be hampered by audible prayer.  

 

The Court agreed that the interest exists but the state had not shown that a categorical ban on all audible prayer in the execution chamber is the least restrictive means of advancing that interest. 

 

Similarly, the Court acknowledged that Texas has a compelling interest in avoiding disruption in the execution chamber.  However, the Court found that because there exists in this case no indication that disruption might occur, a hypothesized fear could not meet the state’s burden. 

 

By tailor making the execution to suit the prisoner’s needs and to permit monitoring, to limit touch to areas that would not interfere with the procedure,  and to avoid disruption, the minister could be permitted to address the inmate only, subject to immediate removal upon any failure to comply with the rules.  These measures are less restrictive means through which Texas might advance the state’s interest.

 

Having concluded that Ramirez is likely to succeed on the merits of his case, the Court next concluded that if the Court failed to provide injunctive relief that Ramire would suffer irreparable harm, as he would be barred from exercising his faith in the last moments of his life. 

 

The public interest will not be harmed by granting relief in this case, as Ramirez does not seek an indefinite stay, and there is a strong public interest – as evidenced by the enactment of RLUIPA – in ensuring that prisoners subject to execution are not concomitantly subjected to undue burdens on their religious exercise. 

 

The Court dismissed Texas’s argument that Ramirez’s inequitable conduct should bar injunctive relief.  In the Court’s assessment, Ramirez has diligently asserted and pursued his claim and has not made a late claim on long known facts to manipulate or to cause delay rather than to seek redress. 

 

As RLUIPA claims are case specific, the Court has urged the states to adopt policies to address claims through a reasonable request process as well as to provide procedural training for spiritual advisors. 

 

As Ramirez succeeded in persuading the court that he is worthy of injunctive relief, the decision of the Fifth Circuit has been reversed, and the case has been remanded for further proceedings consistent with the Court’s opinion.

 

Matters Would Go Better if All Played Their Parts Better.  Justice Sotomayor, having joined in the opinion, has written separately to emphasize that both inmate and prisons administration must comply with not only RLUIPA, but also, with particular emphasis on the prison’s obligations, with the Prison Litigation Reform Act (PLRA).  All concerned, but especially Institutions administering process and procedures, must ensure that redress is available and accessible and that delay not be permitted to frustrate proceedings unduly.  

 

Accommodate, Don’t Litigate.  Justice Kavanaguh concurred separately, noting the emergence of religious exercise and religious equality claims in death penalty case, and commenting upon the difficulties the Court faces in defining not only conpelling interest but also refining the relative restrictivess of measure os addressing compelling interests.

 

Justice Kavanaugh urged the states to realize that much could be accomplished and a good deal of harm could be avoided if the states were to accommodate inmenat’s requests where it is possible to do so without sacrificing the states’ “compelling interests in safety, security, and solemnity,” as so doing would avoid litigation and aid in bringing closure to victims’ families. 

 

Doubting (Justice) Thomas. Justice Thomas dissented from the Court’s opinion, citing not only the violent nature of Ramirez’s crime, but also his evasion of responsibility, and what Justice Thoams perceived to be a strategic change in position to achieve delay.

 

Justice Thomas noted that Ramirez’s engagement in delay and manipulation has frustrated the state’s and the public’s interests in how justice ought to be served.  Moreover, Ramirez has caused repeated injury to victims, as each time a date of execution has been set, Ramirez has evaded it. 

 

Although Ramirez did not engage in a last minute flurry of filing claims, he did engage in piecemeal and persistent pursuit of claims, changing tactics as needed to seek his goal:  delay. 

 

Neither strategy is more or less inequitable than the other, in Justice Thomas’s view.

 

Justice Thomas found no merit in the view that Ramirez’s advancing a claim relating to a ‘traditional’ religions ritual supports the conclusion that is claim is sincere, particularly as the orthodoxy of a practice has no bearing on First Amendment protection.

 

Justice Thomas found Ramirez’s failure to comply with the Prison Litigation REform Act (PLRA) is fatal to his bid for relief before the Supreme Court.  Ramirez was obliged to, but did not, engage in informal resolution of his audible prayer claim nor did he mention the audible prayer claim in his grievance, precluding the state’s adjudication of his claim.  

 

21-5592 Ramirez v. Collier (03_24_2022)

 

Ramirez v Collier 10 F4th 561Mem 5th Cir 2021

 

Suitable Accommodations Must Await Another Day: Supreme Court Declines Review of Walgreen Employee’s Religious Discrimination Claim

Patterson v. Walgreen, No. 18-349, 549 U.S. ____ (cert. denied February 24, 2020).


A decades-old Supreme Court case offhandedly announced that the “undue burden” that would relieve employers of any obligation to accommodate an employee’s religion need only be more than de minimus.  Joining in denial of certiorari of an employee’s case against Walgreen, Justices Alito and Thomas would like to revisit the standing precept, particularly where the old decision relied not on the civil rights statute but on federal agency guidance which predated statutory refinements of the definition of ‘religion’.

 

The Solicitor General suggested that other issues are of concern that need review, but the Court does not consider this case to be the proper vehicle.  The Solicitor General has asked whether an employer must offer a partial accommodation where a full accommodation would pose an undue hardship, or whether speculative harm can establish undue harm.  

 

Patterson alleged that Walgreen’s discriminated against him because his religion forbade working on his sabbath.  Walgreen’s routinely accommodated him in scheduling his work but declined to do so when an urgent need arose and it was thought that  accommodation would work an unairmness to another employee.

 

Patterson failed to appear for the requested Saturday work, which precipitated a delay in training Walgreen employees.  Discussion with Patterson was not fruitful. Patterson wanted a guarantee that he would never be asked to work on his sabbath.  He declined consideration of other positions where the issue would not arise. Walgreen’s suspended and later terminated Patterson.

 

The 11th Circuit observed that Patterson had established a prima facie case, leaving for decision on whether Walgreen failed to offer a reasonable accommodation or that Walgreen’s could not offer a reasonable accommodation which would not pose an undue hardship, which hardship can embrace both direct and indirect costs.  

 

An accommodation need not be the one requested by an employee, nor need the employer offer an array of accommodations from which to choose.  The duty to accommodate his match by a countervailing duty on the employee’s part to work with the employers as the employer suggests.

 

The 11th Circuit declined to address in depth the issue of undue hardwhip because Walgrehaten’s had offered Patterson the opportunity to change schedules when practicable or to obtain another position.  Even if undue hardship were considered, however, Patterson would not prevail because Walgreens would have incurred undue hardship had it been forced to rearrange its business schedule and that of other employees’ to accommodate Patterson.

 

The 11th Circuit also affirmed the trial court’s rejection of Patterson’s retaliation claim.  It cannot be said, the appellate court observed, that Patterson’s termination subsequent to his rejection of all reasonable accommodations was retaliatory.  An employee cannot both reject proffered reasonable accommodations and then claim retaliatory termination.  

 

Although the case will not be heard by the Supreme Court, the opinion accompanying denial of certiorari establishes that at least some of the associate justices are not at ease with the low standard that applies to employers concerning religious accommodations nor are they pleased with the continued existence of outdated definitions of religion.  The denial of certiorari means that the 11th Circuit’s view that an employee must cooperate with an employer concerning accommodations stands. As the 11th Circuit sees it, an employee seeking a religious accommodation cannot insist on the employee’s choice of accommodation, nor can the employee complain of retaliation where reasonable accommodations were offered and the employee rejected them.  

 

JustLawful prognostication:  This case was continued on conference lists for nearly a year, indicating its significance to the Court was not insubstantial but, as the concurring justices noted, the case did not present squarely the open issues that ought, in their views, to be addressed.   With the opinion below undisturbed, the balance of power in employer – employee relations in religious accommodations, at least in the 11th Circuit, rests with the employer. An employer may terminate an employee who refuses a reasonable accommodation, and may demonstrate that accommodation presents an ‘undue burden’ by offering only that the accommodation would cause more than slight harm.  

These issues will not diminish but only expand as the nation moves toward embracing a more expansive notion of religion and religious observances, and as the population of the United States grows ever more diverse in its demographics and in its religious practices.  The push and pull of employer and employee needs will likely not abate any time soon, making the hope for an apt case to serve as a vehicle to review will be presented sooner rather than later. Of course, there is nothing that stands in the way of legislative correction or executive and/or administrative refinement, perhaps obviating judicial intervention, should the coordinate branches’ respective spirits be so inclined.

 

Patterson v. Walgreen 18-349_7j70 February 24, 2020

Patterson v. Walgreen 11th Cir. March 9 2018