John Ramirez is a sincere religious believer. On that, almost everyone agrees—with one notable exception. On March 24, the Supreme Court handed down an 8-1 decision in Ramirez v. Collier that protected Ramirez’s free exercise of religion. The decision allows Ramirez, who is on death row, to have his pastor lay hands on him and pray aloud while he is executed by the state of Texas. Clarence Thomas, the only justice to dissent, disagreed with nearly every point of the Court’s decision, including their finding that Ramirez’s beliefs are sincere. The Ramirez case raises a host of complex and crucial issues, from the theological to the mundane and procedural. Here, I want to zero in on what this case, and Thomas’s dissent in particular, tells us about the status of the sincere believer today.
First, a brief explanation of the case. Ramirez murdered a man named Pablo Castro in Texas in 2004. He evaded police and fled to Mexico, where he was found and arrested in 2008. He was found guilty by a jury and sentenced to death. Since 2016, Ramirez has received “religious guidance” from a Baptist minister. When Ramirez’s execution was scheduled, he requested that his pastor “be present at the execution,” as allowed by Texas law. Until recently, Texas allowed only chaplains licensed by the Texas Department of Criminal Justice in the chamber. However, because there were not chaplains for all religions, it could be argued that some religions were favored over others, leading to unconstitutional inequalities. The state’s solution, then, was to ban all spiritual advisers and chaplains. The state changed this policy because of Supreme Court cases in 2020 and 2021, and Ramirez’s request to have an unlicensed pastor present was occasioned by this rule change. There was some back-and-forth about whether and where the pastor might touch him (they settled on the foot, farthest from the IV injection site, where he might get in the way) and other issues. But, citing security concerns and procedural reasons, the state of Texas denied Ramirez’s request. So, he filed suit against the state for violating his religious freedom.
The relevant law in this case is the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed in 2000. That law—like its sister law, 1993’s Religious Freedom Restoration Act (RFRA)—states that the government cannot “substantially burden” an individual’s free exercise of religion without strict scrutiny. Here, strict scrutiny means that two conditions must be met. First, the government action or policy must further a “compelling governmental interest.” In Ramirez, the government’s interest was to perform a successful execution while mitigating the risk of mistakes or interference. Second, this must be the “least restrictive means” of achieving that interest. This means that if there is a way to get the desired result that burdens someone’s religion less, the government has to do it that way instead. So, the state of Texas argued that it could not achieve its interest and accommodate Ramirez’s beliefs at the same time.
Justice Thomas agreed with Texas, but he took it even a step further. In Thomas’s view, the state does not need to accommodate Ramirez because he is not truly a sincere believer. Instead, he is just cynically using whatever tools are available to delay his death. Ramirez’s RLUIPA suit, Thomas argued, “is but the latest iteration in an 18-year pattern of evasion” that began when he fled from police on the day of the murder. Ramirez had delayed his execution before—through what Thomas called “abusive litigation”—and he had slightly changed the nature of his religious request. The other justices, as well as the lower courts, thought Ramirez was sincere. But Thomas was more skeptical, perhaps more cynical. Citing Ramirez’s “pattern of evasion” and lack of clear evidence of sincerity, he decided that it was probably a ruse.
The courts, Thomas argued, have a “duty under RLUIPA to deny religious liberty claims when prisoners are insincere.” That is true. The advent of the “sincerity test” in the 1940s—according to which courts do not consider whether a claimant’s statements are true, just whether they really believe them—has led to a strange and complicated politics of sincerity. More and more believers have passed the test, as more and more beliefs have been considered religious. And courts do not subject those beliefs to a test of orthodoxy. One’s beliefs do not have to line up with those of their religious leader or organization. It’s a radically individual standard.
While the courts do have a duty to investigate sincerity and to deny insincere claims, they are usually quite hesitant to do so. Before an RLUIPA case like Ramirez reaches the courts, at the initial stages, prison officials must assess the sincerity of the claimant. But even there, the standard is relatively easy to meet. They reject obviously frivolous claims or those that seem designed to “game the system,” but, with some exceptions, they usually conclude that any individual believer is sincere. As legal scholars Ben Adams and Cynthia Barmore have argued, the “judiciary has no business evaluating the moral truth underlying religious claims,” but that does not mean they cannot find religious believers to be insincere. However, many jurists find this distinction murky, and so they hesitate to dig too deeply into a believer’s sincerity, lest they be seen as making implicitly theological judgments or being unfairly discriminatory against certain religions. Nevertheless, a claimant still must pass a sincerity test, and state authorities must decide the believer is sincere or not.
How they decide is a different question. The how question was asked repeatedly, though never clearly answered, during oral arguments of Ramirez. Chief Justice John Roberts posited a hypothetical about a person on death row who, a week before scheduled execution, converts to a religion that requires a training or initiation period of three months. Eric Feigin, representing the United States and supporting neither party, declined to speculate on the hypothetical but said that such a case would certainly require an evidentiary hearing. These matters must be taken on a case-by-case basis, as every individual believer has different beliefs and different circumstances. There will be cases, Feigin admitted, “in which sincerity has certain red flags on it.” Those red flags might include obvious ulterior motives or inconsistency of belief.
Thomas thought that Ramirez’s sincerity had some “red flags on it.” He had slightly changed the nature of his request—most significantly, he initially had not explicitly requested that his pastor should touch him—and Thomas highlighted this inconsistency. He posed the first questions at oral arguments. Citing such changes, he asked Ramirez’s lawyer Seth Kretzer, “If we assume that that’s an indication of gaming the system, what should we do with that with respect to assessing the sincerity of his beliefs?” Kretzer responded that the best evidence is the written record, “one handwritten, signed grievance after another repeatedly requesting the same thing.” Thomas was not convinced. This, he thought, was not really evidence of religious belief. “It’s evidence that, obviously, they don’t … want to be executed,” he said. “And they—and in some instances, they’re gaming the system.” Given that this is how Thomas began oral arguments, perhaps it should not have been surprising that this is where he ended up in his dissent, even if no one agreed with him.
Although Thomas is out of step with most recent jurisprudence in his desire for stricter evaluation of sincerity, he is clearly right about at least one thing. In his dissent, he notes that whether “Ramirez’s supposed belief is ‘traditional’ is irrelevant.” It is true that believers in “traditional” religions and practices generally fare better. It is easier to be perceived as a sincere believer if you look and talk and act like other normatively religious people. The government is supposed to treat all religions equally (and not favor religion over non-religion, or vice versa). Of course, some believers are more readily recognized as sincere and religious than others. The normative figure of the sincere believer—a believer who looks a lot like a white Protestant, sincerely holding individual beliefs, especially about things like sex and gender—looms in all discussions of sincerity.
Chief Justice Roberts, in the majority opinion, wrote that Ramirez was likely to succeed in demonstrating his sincerity. He wrote, “Ramirez seeks to have his pastor lay hands on him and pray over him during the execution. Both are traditional forms of religious exercise.” In what ways does the fact that these forms of exercise are “traditional” relate to Ramirez’s sincerity? Later, Roberts cites the statements of Ramirez’s pastor, who “agrees that prayer accompanied by touch is ‘a significant part of our faith tradition as Baptists.’” Again, Thomas was right to point out that this should be irrelevant. But, whether courts acknowledge it or not, such considerations are always part of sincerity cases. If your beliefs are not traditional, if they’re outside the scope of what is normally requested, if they’re weird, you will likely have a harder time being considered a sincere believer. In my book Sincerely Held, I detail many such cases, including those of conscientious objectors to war, who were supposed to be evaluated only on the sincerity and religiosity of their individual beliefs. In practice, exemptions were granted much more commonly to white, middle-class Protestants than anyone else. This is not supposed to be the case, but how could it not be? Even the very idea of “sincerely held religious belief” privileges styles of religion, namely white Protestantism, in which religion is imagined to be primarily and most importantly a matter of individual belief, rather than ritual performance or group membership.
Does Thomas’s dissent portend a new willingness of conservatives to interrogate sincerity claims more closely? This would be a surprising development, since the conservative legal movement in the last decade has galvanized around sincerely held religious belief, using the concept as a tool to fight against LGBTQ rights, public health restrictions, public education, and other potential impositions. If conservatives were to double down on a more skeptical stance toward sincere beliefs, it could undermine a thriving part of their movement. If, for instance, the owners of Hobby Lobby had been subjected to a higher standard of sincerity and religiosity, would they have passed it? As Winnifred Fallers Sullivan wrote about the Hobby Lobby case, in which the chain store’s evangelical owners declined to cover certain kinds of birth control, “Opposition to legal contraception and abortion was assumed to be religiously motivated. No evidence was required.” What if evidence had been required? What if Thomas had looked at Hobby Lobby like he looked at John Ramirez? Or vice versa?
What Thomas’s dissent illustrates is probably not a shift in conservative jurisprudence but, yet again, the limits of sincerity and who gets to count as a sincere believer. As Ann Pellegrini has argued, “We could say that being sincere not only encodes whiteness but also aligns it with Christianity, allowing some subjects to position themselves as above secular law.” To be exempt from secular law, to have your beliefs and practices accommodated, the law must look at you and see a sincere believer.
There is a reason that Thomas spends the first few pages of his dissent dwelling on the grisly details of Ramirez’s crime. He wants us to see him as a villain, someone who commits terrible acts and evades justice. If there is anything noteworthy about this aspect of the case, then, it is that Thomas looked at a Baptist with “traditional beliefs and practices,” and a pastor to vouch for him, and was still unable or unwilling to see a sincere believer.
Charles McCrary is a postdoctoral research scholar at the Center for the Study of Religion and Conflict at Arizona State University. He is the author of Sincerely Held: American Secularism and Its Believers.