Volunteer Prison Minister's Challenge to Requirements for Addressing LGBTQ Inmates Is Rejected

In Kuenzi v. Reese, (D OR, Oct. 28, 2024), an Oregon federal district court rejected 1st Amendment challenges to an Oregon prison system rule requiring volunteers in prison facilities to sign an acknowledgement statement that calls for volunteers to use appropriate gender pronouns when addressing transgender, intersex and non-binary adults in custody.  Plaintiff, a former volunteer Christian minister in a women's correctional facility, contends that this requirement conflicts with her free exercise and free speech rights. She is no longer allowed to minister at the prison facility without signing the statement which conflicts with her religious belief that gender is an immutable characteristic determined by biology, and that homosexual conduct is sinful. The court concluded that the prison policy is neutral and generally applicable and that:

... the policy is rationally related to ODOC’s legitimate interest in “promot[ing] a respectful environment that reinforces prosocial norms for ODOC’s AICs.” 

It also concluded that:

Because Plaintiff was speaking as an employee and not as a private citizen, her speech falls outside the protections of the First Amendment.

10th Circuit: Jail Violated Free Speech Rights of Volunteer Minister

In Jarrard v. Sheriff of Polk County, (11th Cir., Sept. 16, 2024), the U.S. 11th Circuit Court of Appeals held that Georgia jail officials violated the free speech rights of a volunteer county jail minister. Irritating both jail officials and other volunteer jail ministers, Rev. Jarrard believed and taught that baptism by immersion is necessary to salvation and that, without it, a person will be condemned to Hell. Policies governing participation as a volunteer minister went through a number of revisions. Ultimately, they resulted in Jarred being excluded from the program and baptism of inmates being prohibited. The court said in part:

At least for summary-judgment purposes, therefore, we conclude that Moats and Sharp engaged in viewpoint discrimination based on their disagreement with Jarrard’s beliefs about baptism.  We further conclude that their disapproval of his volunteer ministry application can’t survive strict scrutiny.  ...Moats and Sharp assert that they denied Jarrard’s applications for fear that his participation in the volunteer ministry program would “(1) tend to undercut inmate well-being and (2) unreasonably create problems for jail administrators.”  Even if we were to indulge those assertions ...  and even assuming that they constitute compelling governmental interests, denying Jarrard’s application was not the least restrictive means of achieving those ends.  As just one example, the Jail could have posted notices stating that Jarrard would be addressing a potentially contentious topic and let the inmates decide whether they wanted to attend....  So too, they could have allowed other volunteer ministers to opt out of working with Jarrard so as to reduce the risk of contentious interactions.  And to the extent that they were worried about security issues related to the performance of baptisms, they could have instituted precautions to minimize them.  They could, for instance, have limited attendance at an inmate’s baptism or required an inmate being baptized to be shackled throughout the process to reduce risk of escape.  There is no indication that Moats and Sharp attempted to take any such (or other similar) steps.....

The court also found that two versions of the policy gave jail administrators unbridled discretion in passing on volunteer ministers' applications. 

 Judge Rosenbaum filed an opinion dissenting in part, contending that insofar as damages were sought from the sheriff and his chief deputy, they were protected by qualified immunity.

Questions of Fact Remain in Challenge to Application Process for Prison Chaplaincy Supervisor

 In Bridges v. Prince Georges County, Maryland, (D MD, Feb. 1, 2024), a Maryland federal district court refused to grant summary judgment for either plaintiff or the defendants in a suit by a Muslim chaplain alleging that his 1st Amendment rights were violated by the application process for a paid supervisory position at the county detention center.  At issue was a "Statement of Applicant's Christian Faith" that was part of the application form created by Prison Ministry of America (PMA) which, under contract with the county, was to provide a non-denominational chaplain supervisor for the jail.  After finding that plaintiff had standing and that PMA was a state actor during the hiring process, the court said in part:

Because a reasonable jury could find the Statement of Christian Faith to be “a religious test” ..., summary judgment cannot be granted in favor of Defendants on this count.  However, Defendants’ assertion that the Statement was optional creates a sufficient dispute of material fact as to render summary judgment inappropriate in Plaintiff’s favor, as well....

Regardless of whether the Statement of Christian Faith was mandatory or not, the inclusion of such a statement, especially given that it appeared on its face to be required, clearly employed a non-neutral policy as it specifically allowed for participation by Christians and no others.  This non-neutral practice, then, could be viewed by a reasonable jury as placing a burden on Plaintiff’s religious expression by denying him the ability to apply for a job that he otherwise would have been able to seek, due to his religion....  As such, a reasonable jury could find that this burdened Plaintiff’s freedom of expression and that the policy was not narrowly tailored to meet a compelling government interest, and thus summary judgment cannot be granted in favor of Defendants.  However, the question of whether the inclusion of the Statement of Christian Faith in the application burdened Plaintiff’s religious exercise, given Defendants’ assertion that the Statement of Christian Faith was not actually required, creates a genuine dispute of material fact, and, therefore, summary judgment cannot be granted in favor of Plaintiff, either.

Clergy Sue Federal Penitentiary To Obtain Physical Contact With Death Row Inmates

Suit was filed last week in an Indiana federal district court by two ministers who regularly visit death row inmates in a federal penitentiary in Indiana. One plaintiff is an Episcopal minister and the other in the Unitarian Universalist Church and the Christian Church (Disciples of Christ). The complaint (full text) in Eiler v. Complex Warden, Federal Correctional Complex, Terre Haute, (SD IN, filed 4/25/2023), alleges violations of the Religious Freedom Restoration Act, saying in part:

The plaintiffs have sincere religious beliefs that at times during prayer they must be able to touch the prisoners and the prisoners desire that this physical contact occur during prayer. However, they are precluded from touching the prisoners by defendant’s policy that allows them only non-contact visitation. This policy burdens plaintiffs’ religious exercise without justification.

The complaint also alleges that barring physical contact with prisoners as they are being executed violates plaintiffs' free exercise rights under RFRA. WFIU reports on the lawsuit.

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

Texas Must Grant Execution Chamber Religious Accommodations

 AP reports that on July 5 the federal district court for the Southern District of Texas in Gonzales v. Collier issued a temporary injunction barring the execution of death row inmate Ramiro Gonzales unless authorities grant all of his requested religious accommodations. According to AP:

Gonzales, 39, has asked that when he is executed, his spiritual adviser be allowed in the death chamber so she can pray aloud, hold his hand and place her other hand on his chest.

“...The specific physical contact I have requested is vitally important to me as I am making my spiritual transition into the paradise of God,” Gonzales said in court documents filed last month.

... [O]fficials have argued allowing the hand holding could be a security risk as the adviser would be too close to the IV lines that deliver the lethal injection and the adviser would be in a location that would block the view of authorities and witnesses.

Supreme Court Grants Review On Role Of Spiritual Advisor In Execution Chamber

In Ramirez v. Collier, (5th Cir., Sept. 6, 2021), the U.S. 5th Circuit Court of Appeals, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution to a convicted murderer who is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. (Background from New York Times.) Texas allows spiritual advisors to be present in the execution chamber, but they may not physically touch the prisoner nor speak. Judges Owen and Higginbotham each filed an opinion concurring in the per curiam order denying a stay.  Judge Higginbotham said in part:

[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs.

Judge Dennis dissented arguing that petitioner has made a strong showing that the state's policy substantially burdens his religious exercise in violation of RLUIPA. He said in part:

The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s “exceptionally demanding” standard.... 

However this evening, the U.S. Supreme Court granted a stay of execution and agreed to review the case. (Ramirez v. Collier, (Docket No. 21-5592, cert. granted 9/8/2021) (Order List). The Court's order granting certiorari calls for a briefing schedule that allows the case to be argued in October or November 2021.

Suit Challenges County's Limiting Jail Chaplain Position to Those With Christian Beliefs

Suit was filed last week in a Maryland federal district court by a Muslim volunteer jail chaplain challenging the requirements imposed by Prince Georges County, Maryland on applicants for a paid jail chaplain position. The complaint (full text) in Bridges v. Prince Georges County, Maryland, (D MD, filed 5/27/2021), alleges that provisions of the county's agreement with Prison Ministry of America violate the Establishment and Free Exercise Clauses:

Defendant PG County illegally required all applicants to sign a so-called “Statement of Applicant’s Christian Faith.”

... [The Statement] requires applicants to affirm that they “believe in one God, Creator and Lord of the Universe, the co-eternal Trinity, Father, Son, and Holy Spirit,” that “Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, [and] died a substitutionary atoning death on the cross,” and that “the Bible is God’s authoritative and inspired Word…without error in all its teachings, including creation, history, its own origins, and salvation.”

CAIR issued a press release announcing the filing of the lawsuit. AP has additional background on the lawsuit.

Archdiocese Sues For in-Person Access To Inmates

The Catholic Archdiocese of Milwaukee last week filed suit in state court against the Wisconsin Department of Corrections challenging its continued ban on volunteer clergy visiting prison inmates during the COVD crisis. The complaint (full text) in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., filed 6/7/2021),  alleges that the policy violates statutory provisions in Wisconsin on clergy access to prisons as well as the state constitution's protection of religious liberty. Wisconsin Institute for Law and Liberty issued a press release announcing the filing of the lawsuit.

Texas Will Now Allow Spiritual Advisor In Execution Chamber With Prisoner

 AP and Texas Tribune report that Texas prisons will now allow any inmate being executed to have his personal religious adviser with him in the execution chamber so long as the adviser is verified and passes a background check. This change in policy follows the U.S. Supreme Court's questioning of earlier Texas policies which first limited inmates to having the prison's Christian chaplain and then excluded all spiritual advisors. (See prior posting.) The policy change was signed on Wednesday by director of the Correctional Institutions Division of the Texas Department of Criminal Justice. [Thanks to Scott Mange for the lead.]

Imam Sues Alabama Over Exclusion of Clergy From Execution Chamber

Yesterday a Muslim imam filed suit in an Alabama federal district court challenging prison rules that preclude him from being present in the execution chamber with inmates sentenced to death. The complaint (full text) in Maisonet v. Dunn, (SD AL, filed 2/4/2021), alleges that a change in execution policy in 2019 that now excludes all religious advisors from the execution chamber was adopted

for the purpose of excluding non-Christian religious advisors and prohibiting condemned men of non-Christian faiths from requesting their religious advisors to accompany them in the execution chamber.

The suit contends that the execution policy violates the Free Exercise and Establishment Clauses as well as the Alabama Constitution's Religious Freedom Amendment.

Prior to 2019, prison rules required that the prison chaplain-- consistently a mainline Protestant clergyman-- be present in the execution chamber.  That practice was challenged and litigated up to the U.S. Supreme Court, which in 2019 allowed the Alabama execution of a Muslim inmate to proceed without reaching the merits of the challenge to that practice. (See prior posting.) Subsequently in 2019 the Supreme Court ruled against disparate treatment of non-Christian inmates facing execution in a Texas case. (See prior posting.) Courthouse News Service reports on the lawsuit.

Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber.  In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to  promptly determine whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

Jail's "God-Pod" Program Violates Establishment Clause

 In Young v. Newton, (ED VA, Oct. 16, 2020), a Virginia federal district court, while rejecting a number of claims by Muslim inmates, held that the Riverside Regional Jail Authority (along with its superintendent and the program chaplain) violated the Establishment Clause when they created the Christian-based Life Learning Program (known as the "God Pod"). Participating inmates lived in a separate pod and had access to a microwave and initially were able to single-bunk. The court said in part:

The LLP was unquestionably based on Christian principles and the Bible, which ... is a Christian book. The administration of that program demonstrated a preference for Christianity over other religions and extended benefits to those who subscribed to that preference. Any secular purpose of the LLP, such as to teach skills related to intellectual, emotional, spiritual, relational, occupational, and financial success, was pursued through religious, specifically Christian, teachings, which had the primary effect of advancing Christianity at the Riverside Regional Jail.

CAIR issued a press release announcing the decision.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under  RFRA.  Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution.  The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber

The U.S. Supreme Court today granted a stay of execution pending its decision on whether to grant review in Gutierrez v. Saenz. Ruben Gutierrez's execution was scheduled for today.  In the case the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. (See prior posting.)  The Supreme Court, while now granting a stay until it either denies certiorari or it grants review and decides the case (full text of Order), added as part of its order:

The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

USA Today reports on the Court's decision.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

New Stay of Execution For Buddhist Inmate Over Access To Chaplain

In Murphy v. Collier, (SD TX, Nov. 7, 2019), a Texas federal district court stayed the execution of Patrick Murphy because of differential treatment of the religious needs of prisoners being executed. The U.S. Supreme Court stayed a previous execution date because of Texas' policy to allow a Christian chaplain to be in the execution chamber, but Murphy's Buddhist spiritual adviser could only be in an adjacent room. (See prior posting.) Texas then modified its procedures and allowed no chaplains in the execution chamber. (See prior posting.) However Murphy claims that there is still differential treatment:

Murphy’s amended complaint, however, has moved its primary focus to the interaction an inmate has with his spiritual advisor before entering the execution chamber..... [A]ll inmates have access to their spiritual advisor during business hours in the two-and-a-half days leading up to the execution. An inmate, however, may only meet with non-TDCJ spiritual advisors in the holding area (generally referred to as the “death house”) between 3:00 and 4:00 p.m. on the day of execution. For the next two hours, preparations are made for the execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Only TDCJ personnel may interact with the inmate thereafter.

The policy, however, does not place any limitation on visits by TDCJ-employed clergy, “who appear to have access to an inmate until the minute he enters the execution chamber.”... Murphy argues that the amended policy still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.

The court concluded:

The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint..... A stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.

Texas Tribune reports on the decision.

Arkansas Supreme Court OKs Limits On Leaders of Prison Religious Services

In Mutaqim v. Lay, (AR Sup. Ct., June 6, 2019), the Arkansas Supreme Court rejected challenges by a Nation of Islam inmate to two separate prison policies. The Court upheld the denial in 2013 to 2015 of several issues of the NOI publication The Final Call because they suggested that readers "rise up and strike out at their oppressors." These were censored to protect prison safety and security. The court also upheld a policy barring religious services from being led by inmates, and allowing them to be led by outsiders only if they are credentialed volunteers who are responsible for the orthodoxy of the religion or sect. NOI volunteers could not be found.  The Court said in part:

During the hearing, ADC’s chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence.  As indicated above, prison security is the most compelling government interest in the prison setting.

Inmate's Suit Seeks Imam In Execution Chamber

In the wake of two widely publicized U.S. Supreme Court actions involving similar issues in Alabama and Texas, suit was filed this week by a Muslim death row inmate in Alabama who wants to have an imam present in the execution chamber when when he is executed. The complaint (full text) in Burton v. Dunn, (MD AL, April 4, 2019), alleges that Charles Burton's rights under RLUIPA, the Alabama Religious Freedom Amendment, the Establishment Clause and the Free Exercise clause are violated by the prison's current policy under which only the prison's mainline Protestant Christian chaplain is present in the execution chamber. Burton objects to that chaplain's presence. Stanford Law School's Legal Clinic issued a press release announcing the filing of the lawsuit. [Thanks to James Sonne for the lead.]

Another Death Row Inmate Denied Chaplain of His Choice During Execution

Last month in a widely publicized decision the U.S. Supreme Court  vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam instead of the Christian prison chaplain with him in the execution chamber. (See prior posting). Yesterday a Texas federal district court dealt with a similar request from a Buddhist inmate, and similarly denied a stay of execution because the inmate had waited too long to assert his objections. In this case the prisoner had the option of having a Christian prison chaplain or no chaplain present.  In Murphy v. Collier, (SD, TX, March 26, 2019), the court said in part:

Murphy gave TDCJ little time to decide whether to vary its policy. And Murphy gave TDCJ little time to litigate any legal challenge that would follow. Once informed that TDCJ would not deviate from its policy, Murphy waited over two weeks to file litigation in state court. He filed this action only two days before his execution.

"Given the State's significant interest in enforcing its criminal judgments . . . there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Murphy's execution is set for tomorrow.