The subject has, at times, divided the court's conservative majority and it has also at times embarrassed the court, as minority religious advisers have sometimes been excluded from the chamber.



The U.S. Supreme Court returned to the subject of religious rights today, this time in the context of death row inmates who have asked that their spiritual adviser in the death chamber be able to pray and touch the condemned. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The subject of spiritual advisers in the death chamber has at times divided the court's conservative supermajority. And it's also at times embarrassed the court as minority religious advisers turned out to sometimes have been excluded from the death chamber.

Today's case involved John Ramirez, sentenced to die for stabbing to death a father of nine during a convenience store robbery while on a drug binge. Four years ago, he claims, he got religion. And since then, his execution date has been postponed four times as the courts and the state of Texas have wrestled with his desire to have his Baptist pastor with him in the death chamber and able to pray and touch his foot.

At today's argument, many of the court's conservatives viewed his claims with distinct disdain. Justice Thomas suggested that Ramirez was just gaming the system. Justice Kavanaugh pummeled the defense lawyer, saying that the state has a clear interest in having a risk-free execution.


BRETT KAVANAUGH: Why isn't that a compelling interest, when the state says we want the risk to be as close to zero as possible and if we allow touching and the like, the risk increases?

TOTENBERG: Justice Alito chimed in to say that if the defense were to prevail in this case, the court would face, quote, "an unending stream of cases."


SAMUEL ALITO: You have told us you would be satisfied if Pastor Moore touches Mr. Ramirez's foot. But what's going to happen when the next prisoner says that I have a religious belief that he should touch my knee, he should be able to put his hand on my head? We're going to have to go through the whole human anatomy with a series of cases?

TOTENBERG: Representing the federal government, Deputy Solicitor General Eric Feigin said the experience of the Bureau of Prisons is that a categorical ban is not the way to go. In the 13 federal executions that took place in the waning days of the Trump administration, 11 of them were with a spiritual adviser who could pray and one of whom touched the condemned man in the moments before the lethal injection was administered.

But in no case, he said, was the spiritual adviser allowed to be closer than 9 feet to the inmate once the lethal dose began to be administered because, said Feigin, if something went wrong, it could be catastrophic. Justice Barrett, however, questioned the concept of zero risk.


AMY CONEY BARRETT: I'm just wondering if it's legitimate to define it as trying to get to 0% risk. If they said, we want the risk of prison rioting or fighting to be 0%, that would permit the prison - right? - to say there can never be any kind of prayer service or gathering.

TOTENBERG: Lawyer Feigin conceded there is no such thing as zero risk. Asked by other justices how the Federal Bureau of Prisons had reached the accommodations that it did with 11 condemned men, he said it was done on a case-by-case basis, essentially through as much accommodation as reasonable.

Last up was Texas Solicitor General Judge Stone. Under skeptical questioning from the court's liberals, he conceded that allowing spiritual advisers in the death chamber to pray and touch had been a practice in Texas for decades. But he said that was because the chaplains then were state employees. What about other states that allow it now? Do you know of any interference in them, asked Justice Kagan. No, conceded Stone. Nina Totenberg, NPR News, Washington.

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