Ministers for men sentenced to death by federal courts have filed a lawsuit alleging that prison rules barring them from all physical contact violates the Religious Freedom Restoration Act of 1993.
The Special Confinement Unit (SCU) at the U.S. Penitentiary in Terre Haute, Indiana, is the only death row for men in the federal prison system.
The Bureau of Prisons allows men living in the SCU to designate a “minister of record” to visit them. But ministers are only allowed non-contact visits conducted through a glass barrier.
Ross Eiler, a lay Episcopalian minister, and the Rev. Bill Breeden, an ordained minister in the Unitarian Universalist Church and the Christian Church (Disciples of Christ) are the ministers of record for Jurijus Kadamovas and Chad Fulks, respectively, who are both sentenced to death.
They sued the prison because both believe it is essential to their religious exercise to be able, in certain circumstances, to place hands on a person while praying for them.
“When I’m dealing with someone who’s sick, or in troubled times, or counseling, it’s not unusual at all for me to hold their hands. Or, if I’m saying a prayer for them, to lay my hands on them,” Mr. Breeden told Indiana Public Media. “That’s the kind of way ministers do things.”
The Episcopal Church likewise calls for placing hands on a person when praying for them, the lawsuit says. Barring physical contact burdens Mr. Eiler’s ability to offer pastoral care.
The lawsuit alleges the prison’s non-contact rule violates the Religious Freedom Restoration Act because it imposes a substantial burden on the plaintiff’s religious exercise and “neither furthers a compelling governmental interest nor is the least restrictive alternative to further that interest.”
The ministers are asking to be allowed to conduct visits in the room used for attorney-client visits, which has a small opening in the wire mesh for passing paperwork through which the ministers could touch the men’s hands while praying.
The ministers allege that the prison’s policy barring spiritual advisors from touching a person in the execution chamber while the person is alive also violates RFRA.
While neither Mr. Kadamovas nor Mr. Fulks has an execution date, both ministers believe it is an essential component of their religious exercise in ministering to them that they be present during the executions to offer prayer, guidance, and comfort—which requires, as a theological matter, that they have physical contact.
Mr. Breeden served as Corey Johnson’s spiritual adviser during his execution in 2021 and was not allowed within six feet of Mr. Johnson until after he was dead.
But a spiritual adviser “can touch the person being executed on their lower legs or feet or even the top of their head without interfering” with the execution, the lawsuit alleges—and that makes the prison’s rule barring physical contact during an execution a violation of RFRA.
Mr. Breeden said he decided to file the lawsuit after Mr. Johnson’s execution.
“I never got to touch him before he was dead … I wanted to hold Corey’s hand,” he said. “It’s imperative that we are able to touch the people we minister to. And it’s part of my religious practice and belief that I have to do that.”
Last year, the Supreme Court ruled that Texas had failed to provide a valid reason to bar John Henry Ramirez’s spiritual advisor from touching him while praying aloud during the execution.
“We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk,” Chief Justice John G. Roberts Jr. wrote for the Court.
Concluding that Mr. Ramirez would likely suffer irreparable harm under Texas’s ban on religious touch “because he will be unable to engage in protected religious exercise in the final moments of his life,” the Court granted an injunction prohibiting Texas from executing Mr. Ramirez without allowing his spiritual adviser to lay hands on him and pray during the execution.