Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief
Texas plans to execute John H. Ramirez, but state officials are not satisfied with merely taking his life. They are also intent on denying him the right to practice his faith when it matters most—in his final moments. Mr. Ramirez, a Christian, has asked that his longtime pastor be able to touch him and pray aloud over him as he dies. When the state refused this modest religious accommodation, the Supreme Court stepped in, delaying the execution and agreeing to hear Mr. Ramirez’s case. Oral argument is set for November 9.
In Mr. Ramirez’s Baptist tradition, the practice of spiritual touch by a pastor is often referred to as “laying hands on” the congregant. Laying hands on a person, along with audible prayer, is not only a matter of spiritual comfort, but, in the context of dying, it’s also intended to guide the individual into the afterlife and provide a final opportunity for them to engage with their faith at the most critical time.
During the oral argument, Texas will no doubt contend that granting Mr. Ramirez’s religious request would threaten to disrupt the execution and present a safety and security risk. However, as the ACLU explained in an amicus brief filed on behalf of spiritual advisors who have been present in the death chamber during executions and former prison officials who have overseen executions, the state’s claim is hard to square with its own history. Allowing spiritual advisors to deliver audible prayers during executions and place their hands on individuals during their final moments has been common practice in Texas. It’s well-documented that chaplains present in the death chamber in Texas have been permitted to touch the leg or ankle of individuals being executed and pray aloud with them to offer spiritual comfort. None of these instances caused a disruption to the proceedings.
Texas’s past embrace of this practice is not surprising; spiritual touch and praying aloud over people have been adopted by various faiths and denominations. For example, the ACLU’s amicus brief notes that Catholic priests who visit hospitals are trained to touch the patient (with permission) while praying aloud because it establishes a sacred bond and provides religious support. Indeed, many Catholics believe that last rites are not valid without touch. For that reason, during the federal government’s execution of Dustin Honken last year, Father Mark O’Keefe was permitted to administer last rites to Mr. Honken in the death chamber. He placed a host on Mr. Honken’s tongue, put holy oil on Mr. Honken’s head and hands, and delivered several prayers out loud. During other federal executions held last year and earlier this year, spiritual advisors of various faiths were likewise permitted to pray out loud or — in the case of one Buddhist individual who was executed — chant throughout the entire proceeding.
Former prison officials who have been responsible for overseeing executions agree that any concerns Texas has with his request can be addressed through the implementation of basic protocols. As discussed in the ACLU’s amicus brief, the state could limit Mr. Ramirez’s pastor to touching his shoulder, ankle, or foot, where there are no intravenous lines present and any disruption thus unlikely. In advance of the execution, officials could also conduct a thorough background check and provide an orientation and training. In addition, officials could assign an escort to stand by the pastor at all times to further reduce any risk.
Federal law — the Religious Land Use and Institutionalized Persons Act — provides heightened protections for incarcerated individuals’ religious exercise, recognizing that prison officials’ reasons for interfering with or prohibiting religious practices are often arbitrary and unsupported by evidence. Texas must meet a very high legal threshold for justifying its refusal to accommodate Mr. Ramirez’s religious beliefs. It simply has not met this standard here.
The ACLU has long worked to end the death penalty. But until that day arrives, the legal ability to execute people does not mean that states can trample other fundamental rights in the process. Every person is entitled to religious liberty—even those who will die at the hands of the government. Especially those who will die at the hands of the government.