Liberties Reporting on First Amendment freedoms

Religious liberty until death

Religious Liberty | Texas decision to ban chaplains from the execution chamber is constitutionally suspect
by Rachel Lynn Aldrich
Posted 4/09/19, 04:44 pm

After the U.S. Supreme Court granted a stay of execution to a Buddhist prisoner in Texas, the state moved to restrict the religious exercise of all death row inmates. Chaplains can now watch executions from the viewing room, but they will no longer be allowed to accompany condemned prisoners to their deaths, the state announced last week.

Previously, Texas law only allowed chaplains who had gone through extensive vetting to attend executions. Only Christian or Muslim chaplains were available at the time Patrick Henry Murphy was scheduled to be put to death in March. Murphy, 57, escaped from a Texas prison in 2000 with several other inmates and committed a burglary during which a police officer was shot and killed. While on death row for that offense, Murphy became a Buddhist and asked for his spiritual adviser to attend his execution.

The Supreme Court on March 25 ruled 7-2 that Texas could not execute Murphy without allowing his spiritual adviser or another member of the Buddhist clergy to be present. Justices Neil Gorsuch and Clarence Thomas dissented.

In his concurring opinion, Justice Brett Kavanaugh said government could let chaplains of all religions in the death chamber or none. “What the state may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room,” he wrote. Kavanaugh’s opinion is nonbinding, and it’s not clear whether his proffered solution of relegating all chaplains to the viewing room satisfies the majority ruling of the court that the state could not execute Murphy unless a Buddhist reverend was present. Texas officials had not rescheduled Murphy’s execution as of Tuesday.

Luke Goodrich, legal counsel with the religious liberty defense firm Becket, called Texas’ new chaplain rule a problematic example of “leveling down.” When a Buddhist asked for the same right as a Christian or a Muslim, “instead of leveling up and broadening the accommodation for the Buddhist, the government has leveled down and eliminated the accommodation for everybody.” he said. “If the court allows them to do that here, it may have really bad ramifications for religious freedom in other places, too.”

Another prison chaplain case is winding its way through the courts in Alabama. Charles L. Burton Jr., a Muslim, filed suit on Thursday against the Alabama Department of Corrections for only allowing the Christian chaplain employed by the prison to be in the execution chamber.

Goodrich said that while prisoners lose their civic rights, they do not forfeit their human rights. “When the government interferes with the ability of someone to act on their conscience without having a really good reason for doing so, it’s treating us as less than fully human,” he explained. “We don’t allow the government to torture prisoners because of their crime. And the reason is that that’s an assault on their human dignity. And in the same way, gratuitous, arbitrary restrictions on religious practices of prisoners are also an assault on human dignity.”

Texas has butted heads with prisoners over religious liberty in the past. Goodrich said Becket has litigated several cases against the state, most of which it won. Texas lost a case at the U.S. District Court level last month brought by three male Native American inmates who wanted to grow their hair long as an expression of religious belief.

Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, has emphasized the importance of American Christians supporting the religious rights of believers of all faiths. A government that picks and chooses among religions does not truly respect religion at all, he has argued.

“The idea that religious freedom should apply only to Christians, or only to religious groups that aren’t unpopular, is not only morally wrong but also self-defeating,” Moore wrote in 2016 in reference to the case of a New Jersey town that used zoning laws to block the building of a mosque.

The U.S. Justice Department intervened on behalf of the Islamic Society of Basking Ridge, N.J., and work has since begun on the site of the new mosque.

“A government that can tell you a mosque or synagogue cannot be built because it is a mosque or a synagogue is a government that, in the fullness of time, will tell an evangelical church it cannot be constructed because of our claims to the exclusivity of Christ,” Moore noted.

Alliance Defending Freedom Alliance Defending Freedom Students from The Lyceum sing in South Euclid, Ohio.

Catholic school defends rights

A small Catholic school in Ohio has sued to protect itself from a city ordinance that may require it to hire employees and admit students who do not subscribe to church teachings on marriage and sexuality.

The Lyceum, a sixth–12th grade school with about 45 students in South Euclid, Ohio, claims the city’s nondiscrimination ordinance, passed in April 2018, would punish it for adhering to Catholic beliefs, which define marriage as between one man and one woman and teach that sexual relations should occur only within the bond of heterosexual marriage. While the school accepts non-Catholic students, it will not admit students or hire employees who reject Catholic doctrine on marriage and sexuality.

South Euclid’s ordinance prohibits discrimination based on religion, creed, marital status, sexual orientation, and gender identity or expression (among other things) in employment, housing, and public accommodations. The ordinance allows a religious institution to give preference to hirees from a particular religion, but only if they “perform work connected with the performance of religious activities by the institution.”

“The ordinance is vaguely written, making it impossible for The Lyceum to know with certainty whether its admissions policies, employment practices, and facility use policies violate [the rule],” the lawsuit states. It also claims the ordinance infringes on the school’s First Amendment rights of free speech and free exercise of religion.

The LGBT advocacy group Equality Ohio lobbied heavily for passage of the ordinance in South Euclid and 22 other municipalities in Ohio. It continues to push for passage of the statewide Ohio Fairness Act—modeled on the Equality Act in Congress—which would add sexual orientation and gender identity to Ohio nondiscrimination laws. Ohio is one of 26 states that does not already include sexual orientation and gender identity as protected classes.

“The Lyceum’s parents, students, and faculty have agreed to live by community standards rooted in Catholic teaching,” Alliance Defending Freedom legal counsel Christiana Holcomb said in a statement. “The city’s hostile regulation not only threatens the school, it also undermines the rights of parents and students who deliberately seek out this unique, faith-based education.” —Steve West

Facebook/Foothill Church Facebook/Foothill Church A woman leads a worship song at Foothill Church in Glendora, Calif.

Churches appeal abortion coverage requirement

Three churches in California have appealed a federal court’s dismissal of their challenge to a state mandate that they pay for abortions in their employee healthcare plans.

In 2014, after closed-door meetings with Planned Parenthood and other pro-abortion advocates, a California official directed health plans in the state to provide coverage for all legal abortions. Department of Managed Care Director Shelley Rouillard said the state’s Knox-Keene Health Care Service Plan Act, which requires health insurance plans to cover all basic health services, applied to abortion coverage, too. Three Los Angeles–area congregations—Foothill Church in Glendora, Calvary Chapel Chino Hills in Chino, and Shepherd of the Hills Church in Porter Ranch—sued, arguing that the new interpretation of the law violated their right to freely exercise their religious beliefs and denied them the equal protection of the law.

A U.S. District Court found that the state’s abortion coverage mandate did not violate the churches’ rights because it did not single out religious groups. But Alliance Defending Freedom legal counsel Jeremiah Galus said that “the state knew when it issued its letter to health insurance companies that only religious organizations would be affected by this new mandate. This is overt and impermissible targeting of religious people and organizations.”

Churches are now “stuck,” he added. Under the requirements of Obamacare, the churches must, given the number of employees they have, provide healthcare coverage for employees. And the new interpretation of state law says the coverage must pay for abortions. Galus said the only option available to the churches—self-insurance—is not really feasible because one crippling claim could result in insolvency. So for now the churches hope for a reversal of the lower court’s decision by the 9th U.S. Circuit Court of Appeals. —S.W.

Rachel Lynn Aldrich

Rachel is an assistant editor for WORLD Digital. Follow Rachel on Twitter @Rachel_Lynn_A.

Read more from this writer