Incarcerated people depend on the state for access to their most basic needs, including the ability to practice religion. Over time, Congress has added protections for their religious exercise, first with the Religious Freedom Restoration Act of 19931 (RFRA) and then with the Religious Land Use and Institutionalized Persons Act of 20002 (RLUIPA). Recently, condemned persons began litigating under RLUIPA to have spiritual advisors with them in the execution chamber.3 Last Term, in Ramirez v. Collier,4 the Supreme Court held that Texas’s policy preventing a death row inmate’s pastor from praying with and touching him during his execution likely violated RLUIPA.5 But the Court’s use of history in its strict scrutiny analysis incorporated an atextual inquiry that both diverges from RLUIPA jurisprudence and threatens to skew RLUIPA toward mainstream religions, undermining its neutrality. While the outcome expands religious exercise for condemned persons, the Court’s overreliance on history could result in asymmetric outcomes for litigants.
In 2008, Texas sentenced John Henry Ramirez to die for the 2004 stabbing of Pablo Castro, during which Ramirez allegedly took $1.25 from the dying man.6 Ramirez challenged his conviction, arguing that he had not committed the robbery and so should not have been convicted of murder in the course of committing or attempting to commit a robbery, a capital offense in Texas.7 Over the following ten years, Ramirez filed multiple habeas petitions, all of which were denied.8 Texas set Ramirez’s first execution date for February 2017, at which point he moved to stay, arguing that he had received constitutionally ineffective assistance from his trial counsel.9 As a result, Texas moved his execution date back to September 2020.10
In the meantime, Texas changed its execution protocol. Before 2019, Texas had allowed Christian and Muslim chaplains to enter execution chambers.11 But when Patrick Henry Murphy, a practicing Buddhist, sought to have his spiritual advisor enter the execution chamber, Texas refused.12 In Murphy v. Collier,13 the Court stayed Murphy’s execution.14 Texas, in turn, barred all religious advisors from the execution chamber.15 In 2020, Ramirez challenged Texas’s new protocol, arguing that it violated his First Amendment rights and RLUIPA.16 Ramirez sought to have Pastor Dana Moore, his religious advisor, pray with him during his execution but disavowed the need for Moore to lay hands on him.17 The litigation was dismissed without prejudice after Texas withdrew the death warrant.18
In February 2021, Texas set Ramirez’s new execution date for September 8, 2021.19 Following the requirements of the Prison Litigation Reform Act of 199520 (PLRA), Ramirez filed a Step 1 grievance again requesting Moore’s presence in the execution chamber.21 Texas initially denied the request but later amended its protocol to allow the presence of spiritual advisors.22 On June 11, 2021, Ramirez filed a new grievance, requesting that Moore be able to lay hands on and pray over him during the execution.23 Texas denied the grievance on July 2, and Ramirez appealed within the prison system on July 8.24 On August 10, when Ramirez filed suit seeking a stay of execution in the Southern District of Texas, Texas still had not responded to his appeal.25
The district court denied the motion for a stay.26 Applying the four-factor test from Nken v. Holder,27 Judge Hittner held that Ramirez had not met his burden of demonstrating his likelihood of success on the merits for either his RLUIPA or First Amendment claims.28 Judge Hittner found that Texas’s policy changes allowed Ramirez to meet his religious needs and served the compelling government interest of carrying out executions in a low-risk, orderly fashion.29 The other three Nken factors also weighed in Texas’s favor.30
The Fifth Circuit affirmed in a brief per curiam order, to which each member of the panel filed a separate opinion.31 Chief Judge Owen and Judge Dennis both agreed with the district court’s finding that Ramirez had failed to establish his likelihood of success on the merits for his First Amendment claims.32 Chief Judge Owen and Judge Higginbotham held that Ramirez had not demonstrated a likelihood of success on the merits of his RLUIPA claim.33 Concurring, Chief Judge Owen found that Texas’s interest was compelling and emphasized the similarity of the Federal Bureau of Prisons’ policies.34 She also noted that the current complaint, unlike the 2020 one, had asked for Moore to lay hands on Ramirez, suggesting that his litigation was designed to delay execution.35 Judge Higginbotham also concurred, highlighting the complexity of execution by lethal injection and the risks posed by nonmedical contact during execution procedures.36 He also found no alternative means for the state to achieve its compelling interest.37 Judge Dennis dissented.38 In his view, the Court’s spiritual-advisor cases indicated that Texas’s policy substantially burdened Ramirez’s religious exercise, and Texas had not met its burden under RLUIPA.39
The Supreme Court reversed and remanded.40 Writing for the Court, Chief Justice Roberts41 held that Texas’s policy was likely inconsistent with RLUIPA and that the other Nken factors merited a stay of execution.42 He began with the PLRA’s exhaustion requirement.43 Chief Justice Roberts held that Ramirez had complied with that requirement by seeking informal resolution before filing his Step 1 and 2 grievances, despite Texas’s claims that Ramirez had filed his grievances both too soon and too late.44
Chief Justice Roberts then turned to RLUIPA. He began by clarifying the burdens: A plaintiff must first show that “a prison policy ‘implicates [their] religious exercise.’”45 Once the plaintiff does, the burden shifts to the state to “‘demonstrate[] that imposition of the burden on that person’ is the least restrictive means of furthering a compelling governmental interest.”46 The Court held that Ramirez was likely to succeed in this showing: Texas, relying on Ramirez’s 2020 complaint,47 had argued only that Ramirez’s beliefs were insincere, not that its policy failed to substantially burden them.48 But in the Court’s view, the complaint was not dispositive: the litigation had been dismissed without prejudice, Ramirez stated he would have amended the complaint, and any inconsistency was outweighed by “ample evidence” of the sincerity of his beliefs.49
Since Ramirez had shown that his religious practice had likely been substantially burdened, Chief Justice Roberts evaluated whether Texas had met its burden.50 He began with audible prayer, emphasizing the “rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation.”51 He also briefly noted that the federal government had allowed audible prayer at several recent executions.52 Texas had set forth two compelling governmental interests: (1) the need for absolute silence to be able to monitor the administration of the lethal injection and (2) reducing the risk that the spiritual advisor would use the opportunity for prayer to make statements to observers.53 But Texas’s explanation was only “conclusory” as to the first issue, as it had not shown it was infeasible to allow audible prayer, and less restrictive options, like volume limits on audible prayer, existed.54 As to the second, the Court found no reason to believe that Moore would cause disruptions.55
Chief Justice Roberts also rejected Texas’s attempt to show the total ban on religious touch was the least restrictive means of furthering three asserted interests: “security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim’s family members.”56 Texas had erred in two respects: first, it could have achieved these interests through narrower means, like allowing touch away from sensitive IV lines; and second, it misunderstood the allocation of the burdens.57 Texas had argued that it was Ramirez’s burden to identify less restrictive means and so identified none — but this “gets things backward.”58 Finally, Chief Justice Roberts found that the other Nken factors also favored an injunction.59 He also rejected Texas’s argument that Ramirez had engaged in inequitable conduct and urged states to “adopt clear rules in advance” to enable “timely resolution” of RLUIPA claims.60
Justice Sotomayor concurred.61 She emphasized “the interaction between prison officials’ obligations to set [clear] rules” governing the presence of spiritual advisors at executions and the PLRA’s exhaustion requirement.62 For remedies to be available, procedures must “facilitate addressing execution-related claims within the timeframe of a scheduled execution.”63 This imposes a “twofold responsibility” on prison officials: First, rules must “clearly and timely” inform those facing execution of capital sentences in order to enable them to raise concerns in a timely manner.64 Second, the administrative process ought to “proceed[] swiftly enough to permit exhaustion with sufficient time . . . to seek judicial review . . . prior to a scheduled execution.”65 In this case, the judicial record indicated Texas’s failure to comply with these responsibilities, and Justice Sotomayor emphasized that the PLRA burden falls on incarcerated persons and prison officials to “achieve . . . timely resolution of disputes.”66
Justice Kavanaugh also concurred.67 First, he recounted the “recent history of litigation involving religious advisors in execution rooms.”68 Second, he addressed the difficulties of evaluating compelling interests in RLUIPA execution cases, arguing that the determination is inherently complex given the weighty interests in avoiding disruptions because of the “catastrophic” risks involved.69 He praised the Court’s use of history and recent experience to assess Texas’s arguments in Ramirez.70 Finally, he encouraged “a dose of caution” for states going forward, given the “extraordinary micromanagement of the execution room that RLUIPA has ushered in.”71
Justice Thomas dissented.72 He suggested that Ramirez had behaved inequitably by changing positions on the issue of religious touch and claimed this was part of a larger pattern by death penalty litigants.73 Justice Thomas would have held that the victims’ and state’s interest in the timely enforcement of Ramirez’s capital sentence outweighed Ramirez’s interests.74 Justice Thomas warned that the majority’s test would create delays, uncertainty, and more chances for appeal.75 Next, he suggested that Ramirez’s claims were of dubious sincerity since only the grievance, which had been amended, supported his claims of faith.76 Finally, Justice Thomas would have held that Ramirez had not complied with the PLRA’s exhaustion requirement.77
Chief Justice Roberts’s majority opinion and Justice Kavanaugh’s concurrence both drew attention to the importance of history in the compelling interest analysis. America’s long history of religious prayer formed the core of the majority’s inquiry into whether the state’s interest in preventing audible prayer at executions is compelling.78 While Ramirez’s outcome is correct, given Congress’s command of strict scrutiny, the Court overemphasized history while masking its underlying policy determinations. Historical practice, though useful, is out of step with RLUIPA jurisprudence and skews the law toward accommodations for religions with longer histories of acceptance in the United States, like Christianity. While the outcome is rights expansive for incarcerated persons on death row, the Court’s focus on history to evaluate the compelling interests and narrow tailoring of policy choices could result in asymmetric outcomes for incarcerated persons.
The historical analysis the majority used in Ramirez is an outlier in the Court’s RLUIPA jurisprudence. First, it diverged from the commonsense approach79 used in nondeath RLUIPA cases. In Holt v. Hobbs,80 one of the Court’s most significant RLUIPA cases, a unanimous Court compared Arkansas’s beard-length policy to its other grooming policies and considered its asserted justifications for why its policy was the least restrictive means of achieving the security interests at stake.81 It also compared Arkansas’s policy to other grooming policies.82 But nowhere did the Court consider issues like the history of grooming regulations in prisons since the founding, nor did any Justice suggest that it would have been appropriate to do so.83 Second, the majority opinion’s analysis differed from the approach the Court has taken in RLUIPA cases involving the religious practice of condemned persons. These cases are relatively recent84 and, until Ramirez, had all been resolved on the shadow docket.85 None of the opinions used or mentioned history.86 Rather, they all followed the commonsense approach exemplified in Hobbs.87
While elevating history may not have been the Court’s intent,88 its decision in Ramirez creates the risk that lower courts will take the issue of historical practice as a core inquiry, rather than as a helpful one. RLUIPA inquiries are, as the Court noted in Ramirez, fact specific.89 The Court’s past guidance in religious-advisor cases has been unclear, particularly since the Court decided every such case until Ramirez on the shadow docket without a controlling opinion.90 And the case-by-case analysis of the lower courts has often been confused.91 The courts, already deferential to prison administrators,92 may see the Court’s emphasis on history as an additional path to rule for the state, with the burden falling on incarcerated persons who practice less historically tolerated religions.
Such overreliance on history contravenes the text and purpose of RLUIPA. Because America’s history of religious tolerance is mixed at best, looking to the past to define the scope of religious freedom results in a corresponding narrowing of those rights.93 In prisons, perhaps unsurprisingly given their history as sites of intended religious and moral reform, there has been little acceptance of practices that deviate from the mainstream.94 States have largely been left to their own devices in regulating life in prison,95 and “when Congress or the courts have remembered prisoners, it has been to further circumscribe their right to access the courts.”96
As a result, the Court’s use of history is regressive and limits the rights of incarcerated persons. The Court’s opinion only briefly ac-knowledged changes in execution methods and did not mention the chasm between practices in prisons at the founding and under mass incarceration today.97 It also did not consider the addition of laws like RFRA and RLUIPA, which have helped expand the religious rights of incarcerated persons.98 To use the past practices of American prisons as the baseline restricts the progress that incarcerated persons can make using RLUIPA, and the Court offered little justification for why this ought to be the case.
The Court’s use of history makes even less sense given the text and purpose of RLUIPA. First, Congress made strict scrutiny the standard for RLUIPA claims.99 Second, the text Congress enacted intentionally went beyond the protections that courts had given incarcerated persons under RFRA.100 Finally, Congress made clear its intent to enact broad protections for religious exercise in its “Rules of Construction,” prescribing that RLUIPA “shall be construed in favor of a broad protection of religious exercise.”101 RLUIPA’s text repeatedly commands broad, robust protections for the religious exercise of incarcerated persons.
By contrast, the Court’s inquiry into history disfavors incarcerated persons and skews RLUIPA in favor of protecting more common American religions. The Court’s analysis places the burden on plaintiffs, incarcerated persons on death row with far fewer resources and far less institutional power, to show that their religious practice has a history of accommodation. Yet RLUIPA’s text places the burden on the state to demonstrate that its policy satisfies the strict scrutiny standard that Congress enacted — no matter the religion involved.102 The Court’s approach in Ramirez also skews RLUIPA against adherents of religions that arrived in the United States more recently or that have historically been discriminated against here. Where accommodations for religious practice have existed prior to RLUIPA, the default rules have tended to protect more common American religions. For example, prior to Murphy, Texas allowed Christian and Muslim religious advisors to accompany incarcerated persons to the execution chamber.103 This suggests that religious practices with clear analogs to, say, Christian practices, would fare well under the Court’s approach in Ramirez. While a court looking backward would likely find, as they did in Ramirez, a history that includes prayer at executions, that history might not include evidence of a practice like facing one’s deathbed toward Mecca.104
The Court’s recent Establishment Clause cases reveal the dangers of making history a central inquiry in RLUIPA cases. Here, history has played a central, if not outcome-determinative, role.105 The Court has asked whether the religious activity or display in question has a long history such that the state cannot be understood to have engaged in the establishment of religion.106 While history insulates the state’s practice in the Establishment Clause context, it can support an incarcerated person’s rights claim in RLUIPA cases. But in both contexts, the Court’s historical inquiries favor longer-accepted religions. Ramirez may encourage litigants to try to analogize their practices to Christian ones to gain RLUIPA’s protections.107 But not all incarcerated persons will be able to find such a close historical analog to use this strategy. Thus, while Ramirez represents a step forward for the protection of incarcerated persons, the Court’s focus on history limits its impact.
While the decision allowed Ramirez his sought-after outcome108 and marked a rare win for death row litigants at the Court, the Court has made it more likely that future RLUIPA cases will rely on history in evaluating the state’s compelling interest. The decision risks skewing outcomes in favor of more common American religions, like Christianity, and against religions that arrived in the United States more recently or have historically been discriminated against in this country. The approach is both inconsistent with RLUIPA’s commands and with the Court’s precedent. And it threatens to undermine the progress that incarcerated persons who practice minority religions have been able to make under RLUIPA in the gravest of circumstances.