Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 20–804. Argued November 2, 2021—Decided March 24, 2022

In 2013, David Wilson was elected to the Board of Trustees of the Houston Community College System (HCC), a public entity that operates various community colleges. Mr. Wilson often disagreed with the Board about the best interests of HCC, and he brought multiple lawsuits challenging the Board’s actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. Mr. Wilson continued to charge the Board—in media outlets as well as in state-court actions—with violating its ethical rules and bylaws. At a 2018 meeting, the Board adopted another public resolution, this one “censuring” Mr. Wilson and stating that Mr. Wilson’s conduct was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” App. to Pet. for Cert. 44a. The Board imposed penalties in addition to the verbal censure, among them deeming Mr. Wilson ineligible for Board officer positions during 2018. Mr. Wilson amended the pleadings in one of his pending state-court lawsuits to add claims against HCC and the trustees under 42 U. S. C. § 1983, asserting that the Board’s censure violated the First Amendment. The case was removed to federal court, and the District Court granted HCC’s motion to dismiss the complaint, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F. 3d 490, 496–497. The Fifth Circuit concluded that a verbal “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983.” Id., at 498. HCC sought review in this Court of the Fifth Circuit’s judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure.

Held: Mr. Wilson does not possess an actionable First Amendment claim arising from the Board’s purely verbal censure. Pp. 4–13.

  (a) The First Amendment prohibits laws “abridging the freedom of speech.” When faced with a dispute about the Constitution’s meaning or application, “[l]ong settled and established practice is a consideration of great weight.” The Pocket Veto Case, 279 U. S. 655, 689. That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. As early as colonial times, the power of assemblies to censure their members was assumed. And, as many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level. In fact, no one before the Court has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment. Instead, when it comes to disagreements of this sort, longstanding practice suggests an understanding of the First Amendment that permits “[f]ree speech on both sides and for every faction on any side.” Thomas v. Collins, 323 U. S. 516, 547 (Jackson, J., concurring). Pp. 4–7.

  (b) What history suggests, the Court’s contemporary doctrine confirms. A plaintiff like Mr. Wilson pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 587 U. S. ___, ___. To distinguish material from immaterial adverse actions, lower courts have taken various approaches. But any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. Given the features of Mr. Wilson’s case, the Board’s censure does not qualify as a materially adverse action capable of deterring Mr. Wilson from exercising his own right to speak. Pp. 7–11.

  (c) Mr. Wilson’s countervailing account of the Court’s precedent and history rests on a strained analogy between censure and exclusion from office. While Congress possesses no power to exclude duly elected representatives who satisfy the prerequisites for office prescribed in Article I of the Constitution, the power to exclude and the power to issue other, lesser forms of discipline “are not fungible” under the Constitution. Powell v. McCormack, 395 U. S. 486, 512. The differences between censure and exclusion from office undermine Mr. Wilson’s attempt to rely on either Bond v. Floyd, 385 U. S 116, or the historical example he cites involving John Wilkes, both of which involved exclusion from office. Neither history nor this Court’s precedents support finding a viable First Amendment claim here. Pp. 11–13.

955 F. 3d 490, reversed.

 Gorsuch, J., delivered the opinion for a unanimous Court.


Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 21–5592. Argued November 9, 2021—Decided March 24, 2022

A Texas jury sentenced John Ramirez to death after he brutally murdered Pablo Castro in 2004. On February 5, 2021, after years of direct and collateral proceedings concerning Ramirez’s conviction, sentence, and aspects of his execution, Texas informed Ramirez that his execution date would be September 8, 2021. Ramirez then filed a prison grievance requesting that the State allow his long-time pastor to be present in the execution chamber, which Texas initially denied. Texas later changed course and amended its execution protocol to allow a prisoner’s spiritual advisor to enter the execution chamber. On June 11, 2021, Ramirez filed another prison grievance asking that his pastor be permitted to “lay hands” on him and “pray over” him during his execution, acts Ramirez’s grievance explains are part of his faith. Texas denied Ramirez’s request on July 2, 2021, stating that spiritual advisors are not allowed to touch an inmate in the execution chamber. Texas pointed to no provision of its execution protocol requiring this result, and the State had a history of allowing prison chaplains to engage in such activities during executions. Ramirez appealed within the prison system by filing a Step 2 grievance on July 8, 2021. With less than a month until his execution date, and no ruling on his Step 2 grievance, Ramirez filed suit in Federal District Court on August 10, 2021. Ramirez alleged that the refusal of prison officials to allow his pastor to lay hands on him in the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and the First Amendment. Ramirez sought preliminary and permanent injunctive relief barring state officials from executing him unless they granted the requested religious accommodation. On August 16, 2021, Ramirez’s attorney inquired whether Ramirez’s pastor would be allowed to pray audibly with him during the execution. After prison officials said no, Ramirez filed an amended complaint seeking an injunction that would allow his pastor to lay hands on him and pray with him during the execution. Ramirez also sought a stay of execution while the District Court considered his claims. The District Court denied the request, as did the Fifth Circuit. This Court then stayed Ramirez’s execution, granted certiorari, and heard argument on an expedited basis.

Held: Ramirez is likely to succeed on his RLUIPA claims because Texas’s restrictions on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the State’s compelling interests. Pp. 6–22.

 (a) The question before the Court is whether Ramirez’s execution without the requested participation of his pastor should be halted pending full consideration of his claims on a complete record. To obtain the relief Ramirez seeks—relief that the parties agree is properly characterized as a preliminary injunction—Ramirez “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20. The Court rejects the prison officials’ threshold contention that Ramirez cannot succeed on his claims because he failed to exhaust all available remedies before filing suit as mandated by the Prison Litigation Reform Act of 1995, 42 U. S. C. §1997e(a). In the context of Texas’s grievance system, the Court finds Ramirez properly exhausted administrative remedies. Ramirez tried (unsuccessfully) to resolve the issue informally with a prison chaplain. He then filed a Step 1 grievance requesting that his pastor be allowed to “ ‘lay hands on me’ & pray over me while I am being executed.” Prison officials denied that grievance, and Ramirez timely appealed. His Step 2 grievance reiterated the same requests. Ramirez’s grievances thus “clearly stated” that he wished to have his pastor touch him and pray with him during his execution.

 Respondents’ various arguments to the contrary lack merit. Respondents maintain that Ramirez failed to exhaust Texas’s grievance process because he filed suit six days before prison officials ruled on his Step 2 grievance, but any defect was arguably cured by Ramirez’s filing of an amended complaint the same day the State denied his Step 2 grievance, and the Court need not definitively resolve the issue as respondents failed to raise it below. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. While respondents correctly note that Ramirez’s grievance did not explicitly request “audible” prayer in the execution chamber, the most natural understanding of Ramirez’s request to permit his pastor to “pray over” him during the execution is one that conveys a request for “audible” prayer. Finally, the Court rejects respondents’ argument that Ramirez should have filed his grievance earlier. Ramirez filed the grievance that sparked this litigation just three days after he learned of the prohibition on religious touch, and the Court finds his grievance timely. Pp. 6–9.

 (b) Turning to the merits of Ramirez’s RLUIPA claims, RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the government demonstrates that the burden imposed on that person is the least restrictive means of furthering a compelling governmental interest. 42 U. S. C. §2000cc–1(a). A plaintiff bears the initial burden of proving that a prison policy “implicates his religious exercise.” Holt v. Hobbs, 574 U. S. 352, 360. A prisoner’s requested religious accommodation “must be sincerely based on a religious belief and not some other motivation.” Id., at 360–361. The burden on the prisoner’s religious exercise must also be “substantial[ ].” Id., at 361. Pp. 9–18.

  (1) Ramirez is likely to succeed in proving that his religious requests are “sincerely based on a religious belief.” Id., at 360–361. Both the laying on of hands and prayer are traditional forms of religious exercise, and Ramirez’s pastor confirmed that prayer accompanied by touch is a significant part of their shared faith tradition. Neither the District Court nor the Court of Appeals doubted that Ramirez had a sincere religious basis for his requests. Texas’s argument to the contrary—which stems from a complaint Ramirez filed in 2020 in which he sought his pastor’s presence and prayer in the chamber, but disclaimed any need for touch—does not outweigh ample evidence of the sincerity of Ramirez’s beliefs. Respondents do not dispute that any burden their policy imposes on Ramirez’s religious exercise is substantial. Pp. 9–12.

  (2) Given the current record, the State has not shown that it is likely to carry the burden of demonstrating that its refusal to accommodate Ramirez’s religious exercise is the least restrictive means of furthering the government’s compelling interests. Pp. 12–18.

   (i) Despite a historical tradition of clerical prayer at the time of a prisoner’s execution that stretches back well before the founding and continues today, prison officials insist that a categorical ban on audible prayer is the least restrictive means of furthering two compelling governmental interests. First, they assert that absolute silence is necessary to monitor the inmate’s condition during the delicate process of lethal injection without the potential interference of audible prayer. Respondents fail to show that a categorical ban on audible prayer is the least restrictive means of furthering this compelling interest, and they do not explain why other jurisdictions can accommodate audible prayer but Texas cannot feasibly do so. Texas asks the Court to defer to its execution chamber policy determinations, but RLUIPA requires more when a policy imposes a substantial burden on sincere religious exercise. Further, no basis for deference exists given the State’s history of allowing prison chaplains to audibly pray with the condemned during executions.

 Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” Texas has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. But the record here provides no indication that Ramirez’s pastor would cause the sorts of disruptions that respondents fear. Conjecture alone fails to satisfy the sort of case-by-case analysis that RLUIPA requires. See Holt, 574 U. S., at 363. Further, prison officials have less restrictive ways to handle any concerns. Pp. 12–16.

   (ii) Ramirez is also likely to prevail on his claim that Texas’s categorical ban on religious touch in the execution chamber is inconsistent with his rights under RLUIPA. Respondents point to three compelling governmental interests it says the ban on touch furthers: security in the execution chamber, preventing unnecessary suffering of the prisoner, and avoiding further emotional trauma to the victim’s family members. But respondents fail to show that a categorical ban on touch is the least restrictive means of accomplishing any of these commendable goals. Indeed, Texas does nothing to rebut obvious alternatives, and its suggestion that Ramirez must identify other less restrictive means that would accomplish the government’s interests gets RLUIPA’s burden shifting backward. Texas may eventually face more problematic requests than those made by Ramirez here, but RLUIPA requires that courts consider only “the particular claimant whose sincere exercise of religion is being substantially burdened.” Holt, 574 U. S., at 363. Pp. 16–18.

 (c) Having found that Ramirez is likely to prevail on the merits of his RLUIPA claims, the Court concludes other factors justify preliminary relief. See Winter, 555 U. S., at 20. Ramirez is likely to suffer irreparable harm absent injunctive relief because he will be unable to engage in protected religious exercise in the final moments of his life. This is a spiritual harm that compensation paid to his estate would not remedy. Additionally, the balance of equities and public interest tilt in Ramirez’s favor. RLUIPA recognizes that prisoners like Ramirez have a strong interest in avoiding substantial burdens on their religious exercise. At the same time, “[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill v. McDonough, 547 U. S. 573, 584. Because it is possible to accommodate Ramirez’s sincere religious beliefs without delaying or impeding his execution, the Court concludes the balance of equities and the public interest favor his tailored request for injunctive relief. The record does not support respondents’ assertion that Ramirez has engaged in litigation misconduct that should preclude equitable relief here. Pp. 18–20.

 (d) Timely resolution of RLUIPA claims in the prisoner context could be facilitated if States were to adopt policies anticipating likely issues and streamlined procedures for resolving requests. It should be the rare RLUIPA capital case that requires last-minute resort to the federal courts. The proper remedy in such a case is an injunction ordering the accommodation, not a stay of the execution. This approach balances the State’s interest in carrying out capital sentences without delay and the prisoner’s interest in religious exercise. Texas must decide on remand here where its interest lies, as further proceedings defending its policies may delay carrying out Ramirez’s sentence. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should enter appropriate preliminary relief. Pp. 21–22.

10 F. 4th 561, reversed and remanded.

 Roberts, C. J., delivered the opinion of the Court, in which Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Sotomayor, J., and Kavanaugh, J., filed concurring opinions. Thomas, J., filed a dissenting opinion.