Religious Freedom For All?: Determining What is Left of First Amendment Protections for America’s Incarcerated

In March 2022, the United States Supreme Court handed down an important decision, setting a precedent for the role of clergy in death penalty executions. [1] The Court held that the Texas Department of Criminal Justice (TDCJ) violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and “substantially burdened” death row inmate John Ramirez’s First Amendment right to practice his Baptist faith. TDCJ had earlier rejected Ramirez’s request to have his pastor “lay hands” and “pray over him,” rituals of the Baptist faith, while in the death chamber, as such actions would breach execution security protocol. [2] Ruling in favor of Ramirez, the Court cited TDCJ’s failure to both provide a compelling governmental interest for the rejection and use the least restrictive of means to further said interest. On the surface, the 8-1 decision signifies a win for First Amendment protections, specifically for incarcerees on death row; yet, analysis of case law and oral arguments in Ramirez offer a glimpse into the grim future of religious accommodations cases and the weak hold that is left on the religious rights of incarcerated individuals. [3]

In an effort to expand access to religious freedom and limit state and government action on the free exercise of faith, Congress unanimously passed RLUIPA in September 2000. [4] Enacted with two hefty provisions, the first, § 2000cc, limits the impact zoning authorities have on the exercise of faith and congregations, such as those in places of worship, religious schools, or religious assemblies. More importantly, the second provision, § 2000cc - 1, bolsters the First Amendment rights of institutionalized individuals in state and local prisons, prohibiting institutions from imposing any arbitrary, inessential restrictions on religious practices. Thus, incarcerees are subject to strengthened statutory protections for religious liberty rights than otherwise would be provided under the First Amendment’s Free Exercise Clause. [5] 

RLUIPA’s second provision, § 2000cc - 1, which protects religious liberty of institutionalized individuals, was first upheld by the Supreme Court in Cutter v. Wilkinson (2005). [6] In Cutter, several Ohio prisoners claimed that prison officials had failed to accommodate the needs of their non-mainstream religions, whereas the officials defended their actions on the grounds that RLUIPA was an overreach on the First Amendment’s Establishment Clause and “improperly advanced religion.” [7] Despite the sizable claim for unconstitutionality, the Court ruled that RLUIPA was a valid accommodation permitted by the First Amendment. RLUIPA brings together the two religious clauses of the First Amendment by balancing governmental and religious interests and not favoring certain religious beliefs. [8] The decision of the Court in Cutter is extremely substantial as it demonstrates that RLUIPA does what the First Amendment cannot do alone; RLUIPA not only helps rid religious exercise of government interference and burden, but also holds the state accountable to the First Amendment, especially in instances related to incarcerated people and underserved communities. 

Although Cutter affirmed the constitutionality of RLUIPA, state and prison officials in the followig decade continued to search for avenues to circumvent RLUIPA and ultimately deny incarcerated individuals their First Amendment rights. For example, in Holt v. Hobbs (2015), the Court unanimously ruled that Arkansas prison officials violated the religious liberty of a Muslim inmate. [9] The state used security concerns, particularly related to quick identification and the ability to hide contraband, to prevent Holt from growing a one-half inch beard. While the Court sided with Holt with Justice Samuel Alito even calling the state’s reasoning “hard to take seriously,” Holt demonstrates the dangerous lengths at which states are willing to go to place their interests over the religious rights of incarcerated individuals. 

Similarly, Alabama’s Department of Corrections has seen some legal success in its reasoning for rejecting religious accommodations requests. In Dunn v. Ray (2019), the Court denied Ray’s death row request to have an imam provide spiritual guidance and support in the death chamber, holding that Ray should have brought his claim earlier. [10] The State of Alabama claimed that their policy, which only provides chaplains for inmates on death row, was justified for the sake of prison security interests and teaching proper procedure during execution. [11] However, the state did not provide an explanation as to why an imam was unable to learn such a procedure. [12] Soon after, in Dunn v. Smith (2021), the Court’s decision to uphold an order prohibiting Willie Smith’s execution without the presence of clergy in the chamber, compelled states to yet again revise prison rules to work around religious protections. [13] For example, Texas mobilized its state power to alter execution rules and go against the decision, allowing personal spiritual advisors in the chamber viewing room but restricting the ability to touch or pray over inmates aloud. [14] 

The prison officials’ repeated “workarounds” was perhaps most evident in Murphy v. Collier (2019), when Texas denied a death row inmate’s request to have a Buddhist spiritual advisor present during execution as the state only employed Christian and Muslim chaplains. [15] The Court granted a stay of execution and requested that a spiritual advisor be provided. Instead, Texas attempted to exclude all religious advisors from execution rooms, following options made by Justice Kavanaugh in his concurring opinion. [16] While RLUIPA bolsters religious protections, it is clearly evident that local prison officials have begun to openly prioritize state interests over incarcerated individuals, using their power to change religious regulations over time. Through sidestepping and circumvention, they play a critical role in the decline of religious protections for incarcerees, further illustrating that the First Amendment is weakly protected. 

Most recently in Ramirez v. Collier (2022), the Court granted a stay of execution for death row inmate Ramirez following a decision by the TDCJ to deny him access to his pastor in the death chamber. [17] Although the Court upheld Ramirez’s religious rights, arguing that the TDCJ failed to use the least restrictive means to advance its security interests, the oral arguments present a strongly different opinion and less than hopeful future for the First Amendment rights of institutionalized individuals. [18] For instance, Justice Clarence Thomas raised concerns about the sincerity of religious liberty claims, explaining that death row inmates could use insincere beliefs to “game the system” and “buy more time” to stay executions. Justice Roberts also raised similar sincerity worries, while Justices Samuel Alito and Brett Kavanaugh speculated that ruling in favor of Ramirez would cause related cases to flood the Court soon. [19] 

With nearly four of the nine justices questioning the validity of religious beliefs and worrying about these cases taking up the docket, the opinions of the Court are beginning to chart new territory when it comes to religious freedom and the First Amendment. Rather than taking religious beliefs as bona fide and examining how to accommodate these beliefs into state systems, the Supreme Court justices have now raised concerns about inspecting religious beliefs altogether. It is also clear, as shown in Murphy v. Collier (2019), that the opinions of the Court matter and are extremely influential for state action, whether they derive from the majority opinion or not. How must we legally determine who holds sincere religious beliefs? Will justice be upheld for individuals who are labeled untrustworthy due to their “incarcerated” status? What is the standard for religious freedom moving forward? With First Amendment religious clauses that are weakly protected, state and prison officials increasingly acting as aggressors, and a court that now questions the validity of one’s beliefs, the religious freedom and liberty rights of the U.S. 's millions of incarcerated individuals are left fragile. 

edited by Daniella Sapone

Sources:

[1] Madeleine Carlisle, “Supreme Court Ruling Expands Death Row Prisoners’ Religious Rights,” Time Magazine, March 24, 2022, https://time.com/6127403/scotus-decision-texas-death-penalty-case/.

[2] Ramirez v. Collier, 595 U.S. ___ (2022).

[3] Katherine McKeen, “Religious Freedom on Death Row,” Regulatory Review, March 1, 2022, https://www.theregreview.org/2022/03/01/mckeen-religious-freedom-death-row/.

[4] Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (2000). 

[5] Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § § 2000cc - 1 (2000).

[6] Cutter v. Wilkinson, 544 U.S. 709 (2005).

[7] John R. Vile, “Cutter v. Wilkinson,” in First Amendment Encyclopedia, CQ Press, 2009; online ed., 2016,  https://www.mtsu.edu/first-amendment/article/744/cutter-v-wilkinson.

[8] Cutter v. Wilkinson, 544 U.S. 709 (2005).

[9] Holt v. Hobbs, 574 U.S. 352 (2015).

[10] Richard Lempert, “Why Kavanaugh and a Conservative Supreme Court Punted a Religious Liberty Case on Procedure,” Brookings, February 15, 2019, https://www.brookings.edu/blog/fixgov/2019/02/15/dunn-v-ray-religious-liberty/.

[11] Dunn v. Ray, 586 U.S. ___ (2019).

[12] David L. Hudson Jr., “Hudson: Alabama was Wrong to Deny Muslim Death Row Inmate an Imam at Execution,” in First Amendment Encyclopedia, CQ Press, 2009; online ed., 2016, article published February 24, 2019, https://mtsu.edu/first-amendment/post/203/hudson-alabama-was-wrong-to-deny-muslim-death-row-inmate-an-imam-at-execution.

[13] Dunn v. Smith, 592 U.S. ___ (U.S. 2021).

[14] John R. Vile, “Dunn v. Smith,” in First Amendment Encyclopedia, CQ Press, 2009; online ed., 2016, https://www.mtsu.edu/first-amendment/article/1909/dunn-v-smith.

[15] Murphy v. Collier, 587 U.S. ___ (U.S. 2019).

[16] Linda Greenhouse, “Why Did the Supreme Court Stop This Particular Execution?” New York Times, October 21, 2021, https://www.nytimes.com/2021/10/21/opinion/supreme-court-religion-execution.html.

[17] Ramirez v. Collier, 595 U.S. ___ (U.S. 2022).

[18] McKeen, “Religious Freedom on Death Row.” 

[19] Ramirez v. Collier, 595 U.S. ___ (U.S. 2022).