Bench Memos

Law & the Courts

RFRA, Coronavirus, and the Death Penalty

In an odd turn of events, the Supreme Court is likely to decide another Religious Freedom Restoration Act claim as soon as today, despite the end of the Term last week. The case—Hartkemeyer v. Barr—involves two spiritual advisers, one Buddhist and one Catholic, who plan to provide last rites in the execution chamber to two federal prisoners scheduled for execution this evening and on Friday. Although the federal government is allowing these spiritual advisors to be present for the execution, the spiritual advisors want the executions postponed because they say they are concerned about the risk of exposure to coronavirus during the executions. The district court denied their stay request, and the Seventh Circuit denied their appeal earlier today.

The Court has dealt with ministers’ ability to attend executions several times lately. The first case was Dunn v. Ray in 2019, where Alabama refused to allow a prisoner access to a Muslim imam in the execution chamber. The Court allowed the execution to proceed over a dissent from Justice Kagan. The second case was Murphy v. Collier, also last year, where Texas sought to execute a Buddhist prisoner while denying access to his spiritual advisor. The Court stayed that execution, and the case is back in district court. The third case was Gutierrez v. Saenz from just last month, where the Court stayed execution of a Christian prisoner and asked a different Texas federal court to “promptly” determine whether security concerns prevent spiritual advisors from being in the execution chamber.

The Hartkemeyer case is odd in several respects. First, unlike the prior cases, it is the spiritual advisers, not the prisoners, who are asserting religious freedom claims. They are not vindicating the prisoners’ right to have spiritual advisors present, but are instead suing in their own names to try to stop the executions.

Second, the federal government, in stark contrast to states like Texas and Alabama, is allowing the clergy to be in the execution chamber to administer last rites and provide comfort in the condemned man’s final moments. So the spiritual advisers’ complaints aren’t about access to the prisoners—they agree they will get it—but the conditions under which access will occur. Both advisers, who are in their 60s, say they are concerned about the risk of contracting coronavirusduring the executions. In response, the federal government has offered a number of measures designed to mitigate coronavirus risk, including social distancing, PPE, handwashing, and the like. Direct contact will be allowed only to apply extreme unction during last rites. The spiritual advisers say that is not enough and that the execution should not proceed until there is at a minimum a new ventilation system installed at the penitentiary in Terre Haute or there is a coronavirus vaccine. To say that this is an unusual RFRA claim is putting it mildly.

Third, the lineup of counsel for the spiritual advisors is noteworthy. Lead counsel Douglas Hallward-Driemeier is best known for successfully arguing Obergefell v. Hodges and for opposing religious-liberty claims in cases like Masterpiece Cakeshop, not for making RFRA claims. And the ACLU has long opposed using RFRA and would like to “fix” it by removing most of its applications. In short, counsel with a record of opposing ordinary applications of RFRA are making a novel and long-shot RFRA claim in a last-minute application to the Supreme Court seeking stays of execution for two child murderers.

The Supreme Court has been vexed by repeated last-minute applications for stays of execution raising novel legal arguments. In fact, it vacated one injunction related to these specific executions just yesterday, regarding the method of execution. Here there is a real danger that the law of RFRA will be distorted by the last-minute and extreme nature of these claims.

To avoid damage to the law of RFRA, the Court should avoid discussing the substantial-burden arguments, which have received only cursory treatment in the lower courts. The main locus of the Court’s decision instead ought to be RFRA’s strict-scrutiny test. That analysis will depend largely on how the Court defines the government’s interest. The government has a good argument that it has a compelling government interest under Bucklew v. Precythe in carrying out an execution promptly. In that context the government can say that it has employed the least religion-restrictive means available by employing multiple coronavirus mitigation measures.

However the Court decides the case, it should make clear that its RFRA ruling is cabined to the unique context of last-minute applications for stay of execution. As long as death penalty litigation is a matter of last-minute stay applications and late-night decisionmaking, it will be a poor vehicle for reasoned development of the law.


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