Religious Rights and State Secrets at SCOTUS

says Clarence Thomas and Samuel Alito. Can one's repeated filing of complaints, particularly at the last minute, not only be seen as evidence of gaming of the system, but also of um the sincerity of religious beliefs. What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee, he should hold my hand, he should put his hand over my heart.

But other justices, such as Sonya Soto Mayor, seemed to see the inmates request as reasonable his desire to have the pastor in the execution chamber when he's dying, because the whole purpose of the religious belief is that you should have a pastor to help guide you to the other place. Joining me is Richard Garnett, a professor at Notre Dame Law School and director of the Program on Church, State and Society. Rick, this isn't about the First Amendment.

Tell us about the law issue here. So this law, this Religious Land Use and Institutionalized Person's Act, was enacted by Congress a couple of decades ago. It had the purpose of providing additional protections to prisoners in the United States, protections that are more expansive than the ones that the

Constitution provides. In this particular case, this is kind of the culmination of a number of disputes that have come to the Supreme Court in recent years where states have struggled with their execution procedures and specifically have kind of bounced around about how they're going to handle the sense of spiritual advisors and clergy in the execution chamber. Why have there been so many cases with questions about ministers

being in the execution chamber. There's certainly a long tradition of ministers and clergy being present during executions now in the United States, in recent decades, as the execution process has become more sort of closed off, and as obviously we moved away from public executions towards private ones, and

they're very strictly choreographed and controlled. It's not surprising that this issue comes up, particularly once you have this federal law in place that does explicitly protect the religious freedom rights of prisoners. Here, what we're dealing with, if you want to look sort of just in the last few years. What makes this case a little tricky to follow is

the fact that the states have kind of changed practices. So, um, you know you have uh, one state sort of um denying access to a h a clergy person, uh to condemns selection altogether. Then the court says you can't do that. Then um, uh that as you can't do it in a denominationally discriminatory way. If you're gonna let Christian people have their ministers, then you can't deny it to people

who are non Christian. So then the state says, well, if you're telling us we have to let in just any requested clergy member, we're going to change our policy and have no clergy coming in at all. Um. And then states change that practice and say, well, no, we'll let clergy be present, but they can't touch or they can't audibly pray um, So, there is kind of a tangled history up and down, and I think the hope for some of us who's been following this case is

that the Court will clarify things a bit. So tell us about the concerns expressed by the justices during your arguments. Well, one thing that was clearly on the justices minds, and including on the minds of justices who have a record of being solicitous of religious liberty, was you know, where is this going to lead? How do we draw lines between the kinds of clergy access that are permissible and the ones that might be disruptive or unsettling or and

dangerous to the procedure. Obviously this is a very sensitive context, and the Justice has recognized this. The government has a strong interest in wanting to minimize the risk of disruptions during an execution, especially because, as you know, there's been some high profile executions where the process has been botched and the inmates have suffered, and so obviously states want to minimize to the extent they can, the risk of

that happening. But as some of the justices, like Justice so Domior in Justice Kagan mentioned in oral argument, Congress has made it clear that they want states to be solicitous of religious freedom, even when it's inconvenient, and even when it might be a bit challenging. States are expected

to do what they can to accommodate religious freedom. So if you listen to the oral arguments, a lot of the for lack of a better word, more conservative justices were pressing the lawyer for Mr Ramirez, saying, Okay, where would the line be. It's one thing you wanted to have a pastor touching the inmate on his foot, but what if you wanted to touch the inmate on his head or on his heart. And you say you want

to have audible prayer. That's great, but what if the minister starts yelling really loudly and interfering with the communication and so on. So they were struggling with the line drawing problem. The other thing that you heard the justices concerned about was that condemned inmates would use last minute religious liberty claims as a way to kind of secure

delays in their execution. That is, that there would be bad faith claims or it's just as Thomas put it, there the efforts to gain the system where you know, at the last minute and inmate would say, wait a minute, I have decided I need to have my pastor present and thereby sort of require the state to have to change its procedures or put things off. And it's a long standing concern and death pedalty litigation that inmates might

file last minute complaints and possibly delay the process. But of course the court has been dealing with those for a long time. After the oral arguments, did you get a feel for how they might rule for me? It was difficult to come away from the oral argument with

any clear view of what would happen. But I guess I did think that, notwithstanding the line drawing problems that various justices were concerned about, that the arguments did sort of circle back to the key point that Congress has told courts that they are supposed to insist that state government accommodate prisoners religious freedom to the extent they can.

And so if we have a record into Ramirez case that shows that it's possible to accommodate requests like these in ways that don't disrupt prison practices, I suspect that's what the justices will say. The Act requires justice. Amy Coney Barrett expressed concerns that if prisons didn't allow this, then perhaps the next step in the future would be prisons barring worship services. She was and like a lot

of the justices. Again, this is something we see not just in the Supreme Court but in law generally, is that judges, when they are formulating rules and when they're applying rules, they're often thinking about the next case. Where

does this go. So a court might think, if we allow Texas to say no ministers may touch an inmate in the execution chamber because that's too sensitive, then maybe a couple of years and other state decides, you know what, allowing ministers to be physically present for church services is too dangerous. We're just going to have to do it

all by zoom. Now that's a concern about things going in one direction, and then of course the concern going in the other direction is like, okay, well, if we say that this act guarantees a religious inmates right to have physical touch and oral prayer in the execution chamber, then the next inmate is going to say that there has to be physical touch. Like I said on the head, there's always this concern about how to find lines, how

to anticipate the next case that's not unusual. Did it strike you as unusual that some of the justices who are normally solicitous of religious rights seem to have real concerns in the death penalty context. Yeah, I wouldn't put it quite so starkly. It was just clear that those justices were anxious about some of the possible implications and

the line drawing problems. One of the things that's worth emphasizing is that in the Supreme Court, when it comes to religious freedom under this particular federal statute, the justices have not been divided on ideological lines. The last one, called Hope versus Hobbs, involved a prisoner in Arkansas who wanted an exemption from a no beard's rule because of his religious faith, and he won nine to zero, and as an earlier case called Cutter, again not divided on

on ideological grounds. So even though the justices obviously disagree about many criminal justice issues and about capital punishment, there's been something like a consensus that federal law requires states to accommodate religious objectors and religious believer special needs even

in prison. I think this case, just because the death penalty context is so sensitive, and because the justices have a lot of experience with these last minute appeals that some of them were nervous about the implications of this particular claim. But I'm hoping in any event, that those concerns were answered and that you know, they'll continue with the practice of against sort of a consensus view that prisoners religious freedom rights should be protected to the extent possible.

So I have to say I'm surprised in this instance the Supreme Court halted his execution and fast tracked the arguments as long as the minister could be in the room. Is it so critical that the minister touch the innate? Well, all so interesting? I mean, this isn't this is It's an important point about religious freedom cases generally, is that UM courts have a have a challenge and that the religious freedom protections that exist in our laws exist for everyone,

including for people whose religious practices are less familiar to us. So, um, you know, Ramirez and his pastor assert and I don't think we have any reason to think that their inn sincere that it is part of their religious belief, that the that the laying on of hands is an important part of UM of prayer for another person. That's not to say that prayer can't happen without it. But it's an important Uh, it's an important component of how they think about praying for other people. So you you lay

you lay hands on their bodies. And that's the practice I was familiar with from when I was a kid, going to Assembly of God's schools and so on. Um, So I don't think that's so unusual. But you know, you could imagine um, somebody who said, well, you know what has to happen for me and my execution chamber is that um, um, my minister, my spiritual advisor has to be allowed to um chant and light candles and burn incense and perhaps play some music. And that's that

might be more disruptive. So, and the problem, it's not a problem. It's just the fact that for courts that are trying to administer these religious freedom laws, they can't really pick and choose among the religious beliefs that they happen to share. Instead, they have to ask, is the is the claimants sincere? If they're not sincere, they don't get the benefit of these laws. And is the claimants

belief actually being burdened. If there's no real burden, then they don't get the benefit of these laws, and if they are being burdened, and if their belief is sincere, then the burden is on the government to justify why

it's doing what it's doing. And um, you know, the government has to have have to point to a what the law calls a compelling interest to justify any kind of burdens on sincere religious practice, and they have to convince the court that there aren't other avenues that are available that would make it possible for them to to accomplish their interests. So that was what a lot of

the oral argument was about. You know, some of the justices were pressing the lawyer for the state, Okay, what exactly is it that Texas says is the important interest that requires them to not permit touching by a minister or oral prayer? And why is it that Texas thinks there are no less burdensome procedures that could adequately ensure that the execution process goes off smoothly. Um, And and

again there's no there's there's no way around it. This is the inquiry that Congress has told courts to do. That there in the sense they are they're told they're supposed to second guess the government They're not supposed to just defer to the government when it says, look, we want to do this because it's convenient, or we don't want to do that because it's in convenient. That's not

good enough if there's a bird unsincere religious exercise. At the same time, it's clear that um prison administrators and so on are allowed to enact regulations to keep things safe, and so the Court is aware of that. But nonetheless it has to carry out its statutory duty and and vindicate to the extent reasonably possible the religious freedom interests, even of somebody who's been condemned to be executed. Thanks Rick.

That's Professor Richard Garnett of Notre Dame Law School. For the second time in a little over a month, the Supreme Court considered a case involving state secrets. This time, the FBI was being sued for spying on the Muslim community at a mosque in Irvine, California, starting in two thousand six. The government invoked the state secrets privilege, claiming that in order to defend itself, it would have to

reveal state secrets. Justice Neil gors It suggested that the government couldn't have it both ways, and so the government's really a choice. Doesn't want to disclose the evidence and defend itself or does it want to let a judgment at torqu Churchment go ahead against it and and keep keep national security safe. Joining me is the attorney for the plaintiffs who argued at the Supreme Court. A. Helen are A Lana Thumb, co director of the Center for Immigration Law and Policy at u c l A Law School.

Start by telling us about your clients. Clients are three men Muslim Americans who lived in southern California, Orange County in two thousand and six seven. Shakespeazaga with them the mom at the Orange County Foundation in Mission Viejo, which is not to San Diego. He's now in mem Tennessee. The other two, Rahim and Ali were congregants at the Center of Irvine, just a large mosque and Irvine, California.

And they're all interesting, wonderful people. Shack Tazaga is also a license a therapist and originally in a recent immigrants but here now for more than thirty years. Pabi Molick is born and raised Orange County who's very sort of southern California kind of guys. A surfer, young Republican back then. Now, I guess the middle age Republicans. You also have a roteam of Egyptian immigrants, and I t person he's designed. Actually, I don't understand. It's something involving video games. He worked

for Nintendo. Now tell us what happened at the mosque.

The FBI sent an informant into actually something like eight or ten mosques in the southern California area for the purpose, according to that informant who has since come out, for the purpose of gathering information on Muslims, and his instructions were to gather information simply on Muslims, and then to focus, if at all, on religious leaders, on people who appeared more devout, like going to early morning prayer or changing their dress, people who you know, looked like they were

it's not religious leaders, like social leaders, people who had influenced with youth, things like that. And he focused on the three of them, and he explains this in his declarations in the case because of their kind of connection to these different sort of profiles. So Shakepasag obviously being the mom of the mosque, Alimlis, a young man at this point, was just starting to embrace his faith, more so he started to dress a little bit more conservatively.

He had studied Arabic abroad and studied Islam. Abdi Rahim actually I think sort of hadn't done anything, but the mom had asked him, said, Hey, here's a new person who's a convert. Do you want to kind of show him the ropes a little bit and teach him about Islam. And he was just living with a in a house with some other young Muslim guys who just played a lot of video games basically, and the informants started targeting

all three of them for these reasons, you know. So he started spending a lot of time in abdio Rahim's apartment. He befriended Ali Malik and tried to continuate himself into his life, try and find out about his family, you know, if he had marital problems and things like that. There's what informants in the FBI system do. They try and find these things so they can use them to leverage people into giving information about their friends and neighbors. So

he had interactions with them. There was no violence of any kind or anyone planning any terrorism or anything like that. And then over time, because of that, the informant tried

to instigate that. So he tried to ask people first about jihad and about violent jihad, their views about the wars in Iraq and Afghanistan, and uniformly he was told that's not proper Islam, we don't believe in that, and kind of tried to be sent back on the path of studying the religion and not not focusing on those things.

But he persisted and eventually he scared people, and so then actually both Ali Malik and Yaser Abdora he he specifically became scared of him, and they reported him both to the prominent community leader who's the head of the Cutlin American Islamic relations in l A who's on my lush, and also the FBI and who saw also called the FBI about this informant and then his kind of cover

was loan. They also because he was continued to talk about these things, and they, I think we're very I think a combination of perhaps scared of him and think thoughts maybe he was an informant. Islamic Center Irvine actually got a protective order barring him from coming into the mosque, and then he became basically useless to the FBI and

then something happened that we don't totally understand. He had some kind of falling out with them, and then he went public and his status was revealed in a criminal prosecution for immigration fraud. Was the only prosecution that came out of any of this, and that prosecution was itself dismissed on the government's motions. There's not a single conviction that came out of any of this, and then he went public with all the information. So you sued based

on religious discrimination. What happened to your lawsuit? We sued under both religious emination and privacy violations. The government then came in and said, we promised we're not a spying on people solely because of their religion, but anything else that we would say in order to explain why actually what we're doing is lawful would require the disclosure of secret information. And because we can't defend ourselves with the secret information, your religion claims have to be dismissed under

the state secrets doctrine. So the district court dismissed the case. The Ninth Circuit revived it. What was your argument before the Supreme Court? We met two arguments before the Supreme Court. I think both are strong. One argument is the state secrets doctrine does not authorize dismissal where the plainiffs can

prove their case without secret information. There's a hundred fifty years of law on this preceding the Supreme Court's adoption of state secrets privilege in this case called Reynolds and I think fifty three. We exhaustively looked at every single case, every secondary authority sided in the opinion. There was also anomously from this historian. Professor Laura Donahue is an expert on the history in this area as well, and you can look for literally every case and there's not a

single one that dismisses on their theory. Dismissals on their theory really don't start in earnest until after two one, when there's arguably perhaps one or two cases the nineteen eighties and nineties even all told, it's maybe five lower court decision and that's it. The overwhelming authority disabors their view.

The other argument that we made was that because this is a case about the electronic surveillance of Americans on US soil, it's governed by a law called the Foreign Intelligence Surveillance fact and that law makes very detailed rules or how to handle information that the government says is too secret to disclose to the public or to litigant. And it does not permit dismissal without an adjudication of

whether the surveillance was lawful. Instead, it requires the government to give the information to the district court, the court to look at it in secret, but the court decides did the government break the law? So those are the two arguments we made. Under either approach, you can't do what the district court did. A lot of the news reports say the justices struggled during the oral arguments. What

was their main concern? I think on the first point, the state secrets point, At least for me, it seemed that much of the discussion was about whether the court should reach it at all or instead asked the lower court to decide it. There were some lower court cases after two thousand one that had adopted this broader approach

to the district court adopted. But in two thousand eleven there was a Supreme Court case General Dynamics, which seemed to strongly call into question the validity of that approach. But you had these earlier circuit court cases that had adopted it. So there was seemed to be at least some concern about whether shouldn't the court below in this case of nine Circuits first examined whether, given our decision

in general dynamics, this law should be reconsidered. And then the government had said, well, that's not really properly here, and that was some of the discussions about that. There was a little discussion about whether we're right or the

government's right on the actual state secrets question itself. Justice score such had some I thought very intense questioning of the government on subject, but most of the discussions seemed to be about whether it should be reached now at all or that should be first passed on by the corporlo. On the second point on SPISA, there was more discussion of the merits of the argument itself, the textual arguments,

the structural arguments. So the justices didn't want to reach the question on PISA, or maybe didn't want to reach any question, just send it back to the ninth Circuits. You know, I always uh, and there's not my first arguments, and so you know, you hear the things that happened, and then you read the opinion later and it doesn't come out the way, it's kind of flag to do. There are certainly some justices that were talking about that, and they discussed that with me very directly. But who

knows that that's what they'll do. If they'll go back in conference and decide to do some completely different things, It's it's very hard differentict. But yeah, there were certainly several justices that talked about the idea of maybe just sending the case back, either without deciding anything about PISA or the State Secrets privilege, or perhaps deciding something about

BIST but not because privilege. Justice Briar said to you, so, do you really care whether the government's right or on the displacement of the States Secrets doctrine by eighteen o six or whatever. Well, he was saying, you know, if you don't believe in dismissal, then do you care? And I think that question is exactly it gets to a

basically point about our arguments. Definitely happy in your massa because I felt like it meant to the understand we were saying, if the dismissal is not available under the state speakers privilege, and it doesn't matter whether five applies or not, because either way, the District Court was wrong, and we should be allowed to proceed, whether under five so or under the general rules of civil litigation. I

took that questions. I mean, of course, the answer seat in question is is their dismissal available in the state secrets privilege at all? Because if the answer is no, and who cares whether or not? What fives a definite context? Because the decision below, the district court decision was wrong, and so I was hoping optimistically that what follows from that question is send it back. Tell the court they

did it in the wrong order. They should first decide the dismissal question, and then we can either leave the fives the decision intact, or we can just vacate it as having been unnecessary to the decision. Tell us about the Seventh Amendment problem that justice is a leado and

Barrett seemed interested in. We had sued both the government in its official capacity, and we had also sued the individual defendants for damages, and individual defendants in civil litigation generally have a jury trial rights and also do process right.

And so given that, what by contemplates is that the court, besides the question about whether surveillance is lawful in secrets, you know, I got a lot of questions in both Justice Alito and Justice Barrett about whether it's constitutional to adjudicate the rights of the individual defendants in a proceeding

that is secret. And what I was saying was, we may never get to that question because as an all civilitiation, the parties may win or lose on some re judgment, and some re judgment is consistent with the Seventh Amendment and the do process paused. And so if we went on some re judgment, or if they went on some re judgments, then we're never going to even get there. So why are we talking about this now? The exchange

you had with Justice Barrett seemed very contentious. Did you feel like you were being really put on the spot there? Justice Barrett really quizzed you on that point. Here's part of that exchange. But so, so can that happen if

there's a constitutional element to the privilege? So, um, I mean if we're talking about article to um, oh no, but you're asking about it, Well, I'm asking, like chips fall where they may, and you're you're saying that that's fine even if violates the do process rights of the individual defendants. Well, I think so Again, there's another option. I want to make sure I get to talk about the other option. Did you feel like that got a

little contentious. I wouldn't call it contentious. I think she had hard questions for me, and she'd obviously thought a lot about the Seventh Amendment problem and do process problem. And no, I didn't. I didn't feel like I was being sort of attacked anyway. I mean, she gave me, I said two things I want to say about this, and I said the first one, and then she asked me a question about the first one. Again. I said, okay,

I still want to say my second thing. And I gave my answer, and she and she and she nodded at me. She nodded at me in the courtroom video. She nodded me. It's like, yeah, you'll get your chance. I said the thing again. Then she asked me another question. I didn't ask for the second one again, she still, you know, answered that and then and then I think, okay, let me talk about the other thing. And she completely let me do that and listened and you know, let

me do it, at least in the room. It definitely didn't feel like hostile or attacking or anything like that. I mean, It definitely felt like she thought this is a problem, and so she was giving me every chance in the world to try and firsuadeer that it was not. I'm not sure that I've succeeded. The argument was scheduled for eighty minutes. It went two hours, So the justices

are firing questions at you. Is it mentally exhausting? I was very pleased by the fact that they I mean, obviously you don't know if they're all engaged the whole time, because they're going kind of one any time, but clearly they seemed certainly all engaged through the whole time. And I have listened to arguments where the seals as though the justices are kind of done with it, where they all passed on the questions. Not all, but many of

them passed on the questions at the end. And the fact that so many of them had questions for me right through the end, it seemed that they were really grappling with it. So I was very happy about that. But to answer your question, yet, it was exhausting. It was definitely shausting. When I walked out, I thought, and I've done many circuit court arguments and two other Supreme Court arguments, and I thought, I don't think I've ever been in an argument that was that intense, which I like,

for one full hour. I was just you know, in that kind of mental space. So you're trying to just be totally aware and think and be as responsive as you can and think about all the applications of your argument, you're what you're saying, and it was, Yeah, it was really tiring, really really tiring. Well, thanks for spending this time with us. That's a healing Arolana Thumb, co director of the Center for Immigration Law and Policy at u c l A Law School. And that's it for the

edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, slash Law. I'm June Rosso and you're listening to Bloomberg