The Court issued opinions in two cases today, both interesting in their particular factual circumstances, but neither controversial, with one unanimously decided and the other with a lone dissent.

Houston Community College System v. Wilson concerned whether a school board member who had been disciplined by the board as a whole for his repeated vexatious lawsuits and media statements could maintain an action against the school and its trustees under 42 U. S. C. § 1983, asserting that the board’s censure violated the First Amendment.

In a unanimous opinion written by Justice Gorsuch, the Court concluded that David Wilson lacked standing to do so. Wilson’s position contradicted the long-standing constitutional history of elected bodies, including the Congress, exercising the power to censure their members. For example, 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 levels.

Thus, to bring an actionable First Amendment retaliation claim, someone like Wilson 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. ___, ___. Irrespective of the method that lower courts might have used to make such a determination, any fair assessment must take into account that Wilson was an elected official expected to shoulder a degree of criticism about his public service from constituents and peers—and to continue exercising his free speech rights when the criticism comes.

Moreover, the only adverse action at issue before the Court is itself a form of speech from Wilson’s colleagues that concerns the conduct of public office. In other words, in ruling that Wilson could not raise a viable claim, the Court held that the First Amendment tolerated free speech on both sides of the matter at issue.

Ramirez v. Collier resolved the issue of whether a brutal convicted murderer was entitled to have his long-time pastor “lay hands” on him and audibly “pray over” him during his execution.

John Ramirez argued 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. He sought an injunction barring his execution unless this request was granted. In an opinion written by the Chief Justice, the Court held that Ramirez is likely to succeed on his RLUIPA claims because Texas’s restrictions on religious touching and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the State’s compelling interests. Applying standard injunctive criteria, the Court held that, among other things, Ramirez was likely to succeed on the merits and (obviously, to say the least) would suffer irreparable injury if the injunction were denied.

Rejecting respondent’s arguments concerning exhaustion of remedies and waiver, the Court turned to the merits of Ramirez’s claim under RLUIPA, which 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, and held that Ramirez’s claim was “sincerely based on a religious belief” and, because it is possible to accommodate those beliefs without delaying or impeding his execution, that the balance of equities and the public interest favored injunctive relief.

Upon remand, such relief would be required if Texas were to continue to forbid audible prayer or religious touching. Justice Thomas, who argued that Ramirez was engaging in a continuous pattern of misconduct merely to forestall his execution, dissented. Justices Sotomayor and Kavanaugh, who were part of the majority, also filed concurring opinions dealing with the future application of RLUIPA.

If one assumes, as has been seen in other cases, that the three liberal Justices who have evinced opposition to capital punishment, would almost certainly be in favor of anything that would delay, and potentially forestall, its application, it is interesting to note that four conservatives were also in the 8-1 majority.

This likely shows that, irrespective of their potential support for capital punishment in other circumstances, their views as to religious freedom predominated here.

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