Death and religion: A surprising example of practical policy solutions

Written by William C. Duncan

June 2, 2021

The death penalty and religious freedom are both issues that regularly drive disagreement and cause controversy. Unexpectedly, when mixed together, they are also leading to some consensus solutions – showing that we can in fact find politically practical policy solutions to pressing problems.

Earlier this year, the U.S. Supreme Court heard an emergency appeal in a case involving a death row inmate in Alabama. The inmate was prevented by a prison policy from having a religious minister with him at his execution. About an hour before the inmate was to be executed, the Supreme Court determined that the exclusion of the minister violated federal law.

The relevant law is the Religious Land Use and Institutionalized Persons Act (RLUIPA). As the title suggests, the law addresses two issues where religious freedom concerns are commonly raised. In the context of incarceration, RLUIPA applies to correctional facilities receiving federal support.

It specifies that the government cannot impose a “substantial burden” on the religious exercise of an inmate unless the government can show that the burden meets two requirements.

First, the burden is required to protect a “compelling governmental interest.” In other words, the government may be able to justify a burden on the religious exercise of inmates if the reason for the burden is that it would help the government advance an overwhelmingly important goal, such as protection of life or public safety.

Second, the government also would have to show that it has crafted the burden in a way that would advance the compelling interest without spilling over and interfering with activities that are not related to that interest. For instance, imagine an unlikely hypothetical where an inmate claimed to be part of a religion that required daily study of a religious text and annual sacrifice of another inmate. The government would clearly have a compelling interest in banning human sacrifice but probably could not also ban access to the religious text.

So, when the Alabama case was decided, the majority of the justices determined Alabama had not met these two requirements. Writing for four justices, Justice Elena Kagan concluded: “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.”

Justice Brett Kavanaugh disagreed but noted an implication of the court’s decision (and an earlier one discussed below):

it seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done. Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.

This was apparent not only because of the decision he was addressing but because a 2019 decision of the court had also discussed the responsibilities of states to protect religious freedom in the context of death penalty cases.

That case involved a Texas policy that allowed “a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.” The policy also provided, however, that “inmates of other religious denominations—for example, Buddhist inmates … who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions.”

A majority of the court found this differential treatment of different religions unconstitutional. As a result, Texas determined it would not allow any clergy in execution chambers. While this policy would technically comply with the ruling, it did not accommodate the religious needs of inmates.

So it was particularly good news in April when, in keeping with Kavanaugh’s suggestion in the Alabama case, the Texas Department of Criminal Justice announced it would allow “an approved spiritual adviser or agency chaplain to be present in the execution chamber.”

Alabama also announced a change in its policy “to permit a condemned inmate to have his spiritual advisor in the execution chamber.”

Despite ongoing and seemingly intractable disagreements over the death penalty and protections for religious freedom, when it comes to religious freedom for those who have been issued the death penalty, we are finding resolutions to our disagreements. Courts are playing the positive role of clearly articulating the constitutional and statutory limits on what government can do as they interact with religious exercise of citizens. Government officials are constructively applying these guidelines to create policies that protect those, including religious minorities, whose rights might otherwise be ignored.

So the next time someone argues that we simply cannot overcome our divides on things like religious freedom or the death penalty, we can help them see how we are doing exactly that in the nexus of those two issues. If our commitment to solutions and principled compromise are sufficient, we can still find practical solutions to controversial and difficult problems.

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