This is a “feeling guilty” post. For quite some time now, I have been planning to examine the coverage of some important religious-liberty cases that have been unfolding in the death-row units of prisons.
The decisions are worthy of coverage, in and of themselves. At the same time, these cases have demonstrated that it is still possible, in this day and age, for church-state activists on the left and right to agree on something. Maybe I should have put a TRIGGER WARNING notice at the start of that sentence.
Like I said the other day in this podcast and post — “Covering a so-called 'religious liberty' story? Dig into religious liberty history” — this kind of unity in defending religious freedom has become tragically rare (from my point of view as an old-guard First Amendment liberal). Indeed, to repeat myself, “America has come a long way since that 97-3 U.S. Senate vote to approve the Religious Freedom Restoration Act of 1993.”
The problem is that you rarely, if ever, see reporters catch this church-state angle in these decisions. The key is to look at who filed legal briefs in support of the religious liberty rights of the prisoners.
This brings me to an important Elizabeth Bruenig essay that ran the other day at The Atlantic, under this dramatic double-decker headline:
The State of Texas v. Jesus Christ
Texas’s refusal to allow a pastor to pray while holding a dying man’s hand is an offense to basic Christian values.
Here is the meaty overture:
Devotees to the cause of religious liberty may be startled to discover during the Supreme Court’s upcoming term that the latest legal-theological dispute finds the state of Texas locked in conflict with traditional Christian practice, where rites for the sick, condemned, and dying disrupt the preferences of executioners.
A recent stay in Ramirez v. Collier has again put Texas on the defense in a series of cases about whether death-row inmates have the right to be joined by clergy of their choice in the execution chamber. Earlier this month, the Court agreed to hear John Henry Ramirez’s claim that Texas’s refusal to allow a pastor to lay hands on and pray over him in the execution chamber is a violation of his constitutional rights; lower courts had held that silent prayer would suffice, which Ramirez protested. The Court issued a stay in a similar case in June 2020, when another Texas inmate, Ruben Gutierrez, asked for a Catholic priest to join him as he was killed. The Court has likewise intervened in Alabama, which has banned all clergy from its execution chamber, a policy that Texas enacted two years ago but reversed in April. Now Texas says it will allow clergy of any faith, provided they are vetted and pass a background check — though still with other limitations, as Ramirez shows.
The larger legal battle began in 2019, when the convicted murderer Patrick Murphy received a stay of execution because Texas had refused, per prison policy at the time, to allow him to have a Buddhist spiritual guide join him in the death chamber.
Jumping ahead, here is the thesis statement for this must-read analysis feature:
A famously Christian state failing to accommodate a non-Christian inmate is disappointing but predictable; the same state flatly refusing to accommodate a Christian inmate suggests a more pervasive problem. Texas would permit Ramirez his pastor but draw the line at the minister laying hands on the man or praying aloud over him as the state kills him because, it argues, it has “a compelling interest in maintaining an orderly, safe, and effective process when carrying out an irrevocable, and emotionally charged, procedure.” A pastor praying aloud, holding a dying man’s hand, would bring too much flesh, too much humanity, into the thing. Execution theater is all about maintaining the illusion of mechanism.
Now, what religious groups would you expect — looking through the often predictable lens of media stereotyping — to voice support for Ramirez?
Obviously, we would be talking about progressive faiths that oppose the death penalty. Correct?
Actually, this story is more complex than that. For example, read the following chunk of a church-media news report and then try to guess the newsroom. There are some hints, as in the focus on the Rev. Dana Moore, pastor of Second Baptist Church in Corpus Christi.
In his lawsuit, Ramirez is described as a “devout Christian.” Moore has ministered to Ramirez since 2016, when the prisoner was accepted as a member of Second Baptist Church. In 2008, Ramirez was convicted of the murder of convenience store clerk Pablo Castro, whom he stabbed 29 times during a robbery.
After the federal lawsuit was filed in August, Moore [said], “My role is to be a minister to John, and part of my ministry is being able to comfort him, and part of that is to touch him in some way.”
“John wants me to be able to touch him during the most stressful and difficult time in his life as he is being executed, and that physical touch is what I find in Scripture as very meaningful.
“Jesus healed with touch,” said Moore, a graduate of Southwestern Baptist Theological Seminary. “He had the children come to Him and He held them close, and we see in James the anointing of others which involves touch. It is a traditional practice for us (as Southern Baptists), if we can and if it’s appropriate, to touch. To me it’s an encouragement and a blessing.”
Clearly, this is a Baptist source. But are we talking about the progressive Baptist News Global team or the conservative Baptist Press?
Actually, that block of material was drawn from this Baptist Press feature: “High Court blocks execution of Texas inmate who seeks pastor’s touch.”
I also think that it’s crucial to know that the Ramirez team was backed by a brief from the Becket Fund for Religious Liberty (.pdf here), a legal think tank that supports First Amendment liberalism (especially on cases defending traditional religious believers). Today, that earns Becket a “conservative” label in the press.
I think it’s pretty obvious that Bruenig — an op-ed star who fled The New York Times — recognizes what is happening in this case. You can tell see this in who she used as “expert” voices explaining that is at stake.
This next passage is really long — but look at the diversity of the Christian traditions cited here:
“The state of Texas is wrong,” says Russell Moore, the director of Christianity Today’s Public Theology Project and a longtime Christian ethicist with special expertise in Baptist and other American Low Church traditions. “The Book of James calls upon Christians … to lay hands on those who are sick, and quite often those who are dying … to be with them to help them to pray—which is one of the things that their pastors do, is to help people to pray in moments in which it is very difficult to pray. And the execution chamber would certainly be one of those moments.”
In that sense, Texas’s limitations seem as much a restriction on the pastor’s religious practice as the inmate’s. I asked Moore if the prayer has to be audible, in his tradition, since the state has disputed as much.
“The audible nature of the prayer is maybe more important in this wing of Christianity than perhaps in others,” he explained. “Because it’s so centered around the Bible, the word of God, personal experience with Christ, and sort of the speaking of the prayer is a sign of continuity with what someone has received before, which are the words of Christ in scripture and handed down through the ages.”
Esau McCaulley, a professor of the New Testament at Wheaton College, pointed out to me that praying aloud reflects the nature of the relationship between God and his creations in the Christian faith. “Part of the logic of that is that we are entirely creatures,” he said, “and we don’t worship God with only our minds, but also our body, so our vocal cords matter … In almost every scenario and every Christian gathering, the form of prayer is audible. Silent prayer is a minority, and is actually not what’s prescribed for the vast majority of Christians throughout time.”
McCaulley observed that plenty of orders and rites — including the Episcopal Ministration at the Time of Death and the Roman Catholic Order for the Blessing of the Sick — clearly specify that prayers ought to be said aloud and, in the Catholic case, call for priests to lay hands on the afflicted person.
That’s the church-history and theology half of the equation, in these cases. What I am doing is urging reporters to seek out the views of church-state experts — on the cultural left and right — who used to work together on quite a few cases of this kind. Journalists need to seek out the whole equation.
Today, these kind of bipartisan tolerance is rare. That’s a major story in American life, faith and, yes, politics.
FIRST IMAGE: Screenshot from an MSNBC report on an execution in Huntsville Walls Unit in Texas.