Justice Gorsuch's Dissent in Death Penalty / Religious Objection Case

In Tuesday’s Hoffman v. Westcott, the Court denied a stay of execution; Justices Sotomayor, Kagan, and Jackson would have granted a stay, but didn’t write an opinion; and Justice Gorsuch dissented, for himself:

The State of Louisiana plans to execute Jessie Hoffman tonight. Mr. Hoffman is a Buddhist. And he argues that the State’s chosen method of execution—nitrogen hypoxia—violates his rights under the Religious Land Use and Institutionalized Persons Act of 2000. Nitrogen hypoxia will, he says, substantially burden his religious exercise by interfering with his meditative breathing as he dies. No one has questioned the sincerity of Mr. Hoffman’s religious beliefs. Yet the district court rejected his RLUIPA claim anyway based on its own “find[ing]” about the kind of breathing Mr. Hoffman’s faith requires.

That finding contravened the fundamental principle that courts have “no license to declare … whether an adherent has ‘correctly perceived’ the commands of his religion.” The Court of Appeals failed to confront the district court’s apparent legal error—or even to mention the RLUIPA claim Mr. Hoffman pressed on appeal. Perhaps that claim ultimately lacks merit. But the Fifth Circuit’s unexplained omission leaves this Court poorly positioned to assess it. I would therefore grant the stay application and petition for writ of certiorari, vacate the judgment of the Fifth Circuit, and remand for that court to address Mr. Hoffman’s RLUIPA claim in the first instance.

Note that Justice Gorsuch was speaking only about the district court’s decision to interpret for itself what Buddhism demands (which is indeed something secular courts aren’t allowed to do under First Amendment precedent), not the ultimate bottom line question of whether this form of execution could indeed be applied to Hoffman.

Here, by the way, is what seems to be the relevant passage from the district court decision:

The Court finds that meditative breathing is an exercise attendant to practicing Hoffman’s chosen faith of Buddhism. The Court dismissed Hoffman’s RLUIPA claim finding that substituting nitrogen for atmospheric air does not substantially burden. Hoffman’s ability to breath. Nothing in the evidence changes this conclusion. The record evidence established that nitrogen is an inert, tasteless, colorless, odorless gas.

“[A] government action or regulation creates a ‘substantial burden’ on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.” Plaintiff responds that Hoffman’s “sincerely held religious beliefs are substantially burdened not because he will be unable to breathe” but because he will be forced to breath nitrogen instead of air. At the preliminary injunction hearing, two Buddhist clerics testified that air (not nitrogen) is necessary for meditative breathing. They cited no religious text or instruction by the historical Buddha in support of this proposition.

The Court finds that Buddhism calls its adherents to a ritual of breathing rhythmically to achieve a mediative state, what the clerics referred to as “zen.” This is analogous to Western religions’ practice of prayer. The Plaintiff admits that he will have the ability to breathe in the nitrogen as it is administered. The Court finds there is no substantial burden to his exercise of rhythmic breathing. The Court denies reconsideration of this claim.

This strikes me as indeed unconstitutional, just as it would be unconstitutional for a judge to reject a Christian’s religious exemption claim by saying that he and his experts “cited no religious text or instruction by Jesus” in support of a particular view: “Courts are not arbiters of scriptural interpretation” (Thomas v. Review Bd. (1981)). The questions under religious exemption regimes such as RLUIPA are whether the government have substantially burdened a claimant’s sincere belief, and then whether the government may still justify the burden by showing that it’s the least restrictive means of serving a compelling government interest. They cannot include the judge asking what the real beliefs of the relevant religion are.

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