In the Matter of John Ramirez

I find myself unexpectedly engaged by the decision of the Supreme Court to stay the execution of John Ramirez, a convicted murderer who had been scheduled to be executed by the State of Texas last September 8.

First, the story itself is interesting. Ramirez was tried, found guilty, and sentenced to death for having brutally murdered Pablo Castro, an employee in a convenience store, in the course of an armed robbery in which Ramirez managed to steal a mere $1.25 after stabbing Castro twenty-nine times in the alley behind his store. This was all some time ago—the murder took place in 2004—and in the meantime Ramirez has been on death row awaiting his execution. Suggestive, more than of anything else, of our national ambivalence towards the death penalty, we have created a strange world in which people sentenced to death are obliged to wait for years and years before they are actually executed as the inevitable appeals wind their almost interminable way through the courts and then, finally, the condemned person either is or isn’t granted his or her life through an act of clemency by a state’s governor personally or by a board empowered to make such a decision, or in federal cases by the President of the United States. Clemency doesn’t happen too often, however: other than in the case of blanket clemency offered by a state’s governor as an expression of distaste for the death penalty itself, there have been fewer than two prisoners a year spared execution since 1976. In contrast, more than 1,500 prisoners have been executed at the state or national level during those same years.

But the stay granted in the Ramirez case caught my interest because of the reason it was granted: the State of Texas had made it clear that Ramirez’ pastor was not going to be permitted to lay his hands on Ramirez’ head as part of the latter’s final prayer before being put to death and his lawyers argued, apparently convincingly enough for the Supreme Court to feel called to rule on the matter, that that refusal constituted an infringement of Ramirez’ civil rights. As a result, the issue before the Court transcends the details of Ramirez’ personal story and becomes one far more broad in its implications by raising the question of what precisely constitutes freedom of religion. And, even more to the point, it will require the Supreme Court to specify whether a state has the right unilaterally to decide what does and doesn’t constitute legitimate religious behavior on the part of a specific citizen or group of citizens, behavior that specifically cannot be curtailed by legislation or edict precisely because the exercise of the religion of one’s choice is guaranteed by the First Amendment to the Constitution as one of our most basic civil rights.

The question of whether the laying on of the pastor’s hands is or isn’t a legitimate Christian ritual is not for me to decide. But it seems even less reasonable than asking a rabbi to make such a decision would be asking a secular court or—even more absurdly—a state’s Department of Corrections—to do so. And yet that is precisely where things stand. The Texas Department of Corrections turned down the request because of what they referenced vaguely as “security issues,” but without explaining how the security of the execution chamber, let alone of the entire prison complex, could or would be endangered by a pastor placing his hands on someone’s head? More to the point, the Department’s argument was seriously undercut by a different minister, the Reverend Carroll Pickett, who served as a death row chaplain in Texas for fifteen years and who wrote in his book, Within These Walls: Memoirs of a Death House Chaplain, that both he and his successor both routinely had physical contact with condemned individuals in the last minutes of their lives and that there was never any sort of obvious risk to anyone at all in that gesture of spiritual kindness to a prisoner about to die. (Reverend Pickett’s book was quoted verbatim in the document submitted to the Supreme Court called “Brief of Former Prison Officials as Amici Curiae in Support of the Prisoner.” To read those remarks, click here and search for Pickett.)

But the legal wrangling began almost immediately nonetheless.

A judge of the Federal District Court in Houston rejected Ramirez’ argument that the decision to bar his pastor from placing his hands on his head violated his civil rights, accepting the argument that prison officials should be free to decide what does or doesn’t constitute a breach of prison security. Then a three-judge panel of the U.S. Court of Appeals in New Orleans upheld the District Court’s decision. And now the matter has come to the Supreme Court.

In my opinion, it would be a great error of judgment to wave all this away as just so much legal folderol because it seems beyond crazy to worry about—or to care about—the civil rights of someone whom the state is about to kill anyway. I see why someone might think that. But there’s a lot more here than the specific question of Inmate Ramirez’ right to engage in the rituals of his faith without needing to get anyone’s permission to do so.

Other cases like this have come up just recently. And the verdicts have been strangely inconsistent. In 2019, for example, the Supreme Court declined to stay the execution of a prisoner in Alabama who claimed that his civil rights had been violated when he was denied the right to have his own clergyperson, a Muslim imam, attend his execution, which right was routinely granted to Christians executed in Alabama. But then, just a few weeks later, the Court forbade the execution of a prisoner in Texas who wished his own spiritual advisor, a Buddhist priest, to be present at his execution, which right Texas at the time granted solely to Christians and Muslims. After winning in court, however, the State of Alabama decided to head off future legal troubles simply by excluding all spiritual advisors or clergypeople from the execution chamber. But then, earlier this year, the Supreme Court forbade Alabama from executing someone who had been denied the presence of a Christian minister in the execution chamber.

In the end, what is really under discussion here is the right of the federal government—or any government—to determine what constitutes a bona fide religious ritual. The security argument seems, at least to me, wholly bogus. (Are they really afraid that the pastor might strangle the prisoner if physical contact between them were to be permitted? That sounds even crazier than the idea that a phalanx of armed Corrections officers couldn’t overcome a single unarmed pastor no matter what he attempted to do during the few minutes before an execution.) Nor are we seriously discussing the question of whether prisoners should or shouldn’t be allowed to practice the religion of their choice, a basic civil right specifically not extinguished with incarceration. Instead, we are seeing a state government choosing, in my opinion arbitrarily, to determine that the laying on of the hands is not enough of a Christian ritual for the prisoner’s right to engage in it to be guaranteed by law. And that is why it is so important for the Supreme Court to strike down the rule that forbids contact between minister and prisoner. Not because John Ramirez does or doesn’t deserve the solace he expects to receive from the physical touch of his pastor’s hands—but because the government must never be permitted to arrogate to itself the right of deciding which religious rituals are included in the general freedom we all enjoy to practice our religions without the government mixing in negatively or positively.

Freedom of religion, like freedom of speech or the freedom to assemble, is one of the  foundation stones upon which our American republic rests. To allow that freedom to be eroded is never going to be a good thing for those who cherish the civil rights enshrined in the Constitution. Reverend Dana Moore, pastor of the Second Baptist Church in Corpus Christi, is John Ramirez’ minister. If he feels that his faith calls him to lay his hands on John Ramirez as the latter is being executed to offer him the kind of spiritual strength necessary to die with dignity, then that decision should be entirely his to make. 

Texas House Bill 3979

At the heart of the democratic enterprise is the notion of tolerance. And this is so for one single reason: because embedded in the concept of majority rule (which is, obviously, the core principle of any democratic state) is the parallel obligation to guarantee that even people who espouse unpopular points of view have an opportunity to speak out on matters that matter to them. It’s hard to imagine anyone seriously taking issue with that: the whole point of enshrining freedom of speech and a free press in the Bill of Rights—and, at that, in the First Amendment—is to guarantee that, for all the majority may rule, the minority may never be silenced. And that certainly applies—perhaps even specifically applies—when the view not being silenced is unpopular or out of favor.

All that being the case, there was—at least at first blush—nothing controversial in Texas House Bill 3979, a new law just recently passed by the State Legislature, requiring teachers in the state’s public schools to be evenhanded when presenting “widely debated and currently controversial” ideas to pupils in the state’s public schools. Why would anyone oppose teachers taking an evenhanded approach when instructing children regarding contentious matters? There are, after all, two sides to every story.

The decision earlier this week to remove the statue of Thomas Jefferson from the New York City Hall Council Chamber is a good example of those two sides: you can damn Jefferson as a slaveowner and a racist rapist (and allow those details to overwhelm the role he played in the founding of the nation) or you can honor his crucial role in declaring our nation’s independence from Britain—he was the principal author of the Declaration of Independence, after all—and allow that to make less important the fact that he openly spoke of Black people as inferior beings, fathered children with teenaged female slaves, and supported the idea of “removing” native Americans from their own land and resettling them west of the Mississippi. There are rational, reasonable arguments on both sides, and for one simple reason: because all of the above details are true. So the debate is by its nature destined to be complex and complicated because Jefferson himself, a man who behaved in many ways that were totally at odds with his own philosophy and politics, was a complex and complicated creature. Both sides have lots of good points to make. The decision to remove the statue and send it to the New York Historical Society, where it will presumably be presented to the public in a way that sets the man in his historical perspective, only pleased some of the people engaged in the debate. But there’s no real question—not in my mind, at any rate—that there were valid, cogent arguments to be made on both sides of the issue. And that’s how democracy is supposed to work: everybody speaks freely, no one is silenced in advance, and then the majority rules.

And that brings me back to Texas. The bill, now a law, mentioned above requires that teachers present both sides to a debate when presenting that debate to impressionable children. But a path paved with virtuous paving stones can still lead to hell. And so, just this last week, we heard Gina Peddy, the executive director of curriculum and instruction in the Carroll Independent School District in Southlake, Texas, a suburb of Dallas/Forth Worth, comment in a training session for teachers that if they were going to have a few books in their classroom libraries about the Shoah, then they should be sure also to offer students books written from an “opposing perspective.” Nor was this notion implied or merely suggested: “Make sure if you have a book on the Holocaust,” Executive Director Peddy said unequivocally, “that you [also] have one that has an opposing [viewpoint], that has other perspectives.” Nor can we imagine that the Executive Director unintentionally misspoke herself. “How do you oppose the Holocaust?” one flabbergasted teacher asked in response. “Believe me,” Peddy said slightly mysteriously, “that’s come up.”

Another teacher asked how precisely this was supposed to work. Imagine, this teacher proposed, that a classroom library contains the famous book by Lois Lowry, “Number the Stars,” detailing the escape of a girl from a Copenhagen Jewish family from the Nazis. Was Executive Director Peddy suggesting that the classroom should also feature pro-Nazi books promoting the notion that the Germans absolutely had the right to exterminate the Jews of Denmark if they wished? It wasn’t clear if Peddy heard the question. But what is clear is that she failed to answer it.

The reaction to Peddy’s remarks was ferocious and immediate. A spokesperson for the Texas State Teachers Association, Clay Robison, said unequivocally that his organization considers it “reprehensible for an educator to require a Holocaust denier to get equal treatment with the facts of history. That’s absurd. It’s worse than absurd. And this law does not require it.” Those are stirring words. But is Spokesperson Robison right about the law? That’s the real question here!

The author of the law, State Senator Brian Hughes, was clear enough, saying unambiguously that the law does not require teachers to present opposing viewpoints in matters of “good and evil” or to present pro-Nazi books if they also present books about the Shoah. Nor would the law require teachers who teach about slavery in Texas or anywhere to include reading assignments that would expose children to authors who promoted slavery as an acceptable institution or who attempted to justify ante-bellum slavery in the United States with reference to the natural inferiority of Black people. Of course, no one in his or her right mind would propose an even-handed approach to slavery. Or do I just want to think that that is the case?

What it comes down to—for Texas and for all of us—is understanding the difference between legitimate debate about complex, nuanced issues and the ridiculousness of debating historical or scientific reality. Debating whether Roe v. Wade should be overturned would be a reasonable exercise for high school students. And, in such a case, why shouldn’t they be presented with thoughtful arguments on both sides of the abortion issue? That’s precisely how education in a free society is supposed to work, after all—by exposing young people to both sides in a principled debate and then allowing them to formulate their own opinions based on what they’ve learned. But to extend that notion to people who promote ideas that are rooted solely in bigotry and racial or ethnic hatred and to feel some sort of obligation to let children be exposed to their ideas as well—that is just lunacy.

If we as a nation cannot say—unequivocally and unambiguously—that Nazism was an evil and not an “alternate viewpoint” that deserves its day in court, then we have truly descended into true craziness. The kerfuffle in Texas seems to have died down. No one is actually insisting that teachers expose children to pro-Nazi or pro-slavery books if they teach materials about the Nazi war against the Jews or about the misery and degradation slaves were obliged to endure in the Old South. But the very fact that this matter came up for debate at all is worrisome. Are there actually people out there—including the curriculum directors of school districts—who think of the Shoah as a theory to be accepted or rejected and not at all as a historical fact? Apparently, there are. And that distressing and disturbing detail far outweighs in importance the happy ending of this single incident in Texas.

Remembering Neal Sher

I read of the death last week of Neal Sher with a heavy heart. He was a complicated figure. He made some huge errors of judgment. Some reflected negatively on his work as director of the innocuously named Office of Special Investigations, the department of the Justice Department in charge of rooting out ex-Nazi war criminals living under false pretenses in the United States and revoking their citizenship, then deporting them to their original homelands. Others reflected poorly on his personal integrity. But Neal Sher was a giant in terms of the quest for justice for the martyrs of the Shoah, a man who, during his eleven years running the OSI, seemed to me to be the physical embodiment of the notion that no murderer should be rewarded with a free pass for having eluded justice for years or even decades. When put that way, who would argue to the contrary? And yet there were, and are, people out there—and, I fear, lots of them—who found and still find something unseemly, perhaps even grotesque, in pursuing elderly men and women long since settled into American life and insisting they answer for their crimes of scores of years ago. For such people, the Second World War has receded so far into the past that threatening to deport someone’s doddering grandpa because he was once part of the Nazi killing machine seems petty, even ridiculous. But for those of us whose entire lives are lived in the shadow of the Shoah, nothing could be further from the case.

The individuals the OSI went after under Neal Sher’s leadership were a varied lot in some ways—a former archbishop of the Romanian Orthodox Church, the Prime Minister of Austria, a scientist working for the NASA Saturn 5 rocket program, an auto plant worker—but they all had one thing in common: all lied about their past to gain entry to the United States and all managed to become United States citizens because of those lies. But to trivialize the work of the OSI by suggesting that the crime of those it went after was that they all told a single lie on some immigration form decades earlier is really to miss the point entirely. These people were not deported because they told a fib on some form; they were deported because they had no right to enter our country in the first place without disclosing the specific role they played in the massacre of European Jewry. Nor did they lie because the matter was not one of consequence. Just the contrary is true: they lied precisely because they knew that telling the truth would disqualify them from living here.

Neal Sher’s work at the OSI is inextricably bound up with the story of Ivan Demjanjuk, the auto factory worker mentioned above. He was accused of having been part of the killing machine at Treblinka and was stripped of his citizenship and deported to Israel in 1981, where he was convicted of war crimes and sentenced to death in 1988. Later, the Israeli Supreme Court overturned the conviction, saying that there was sufficient doubt about the testimony against Demjanjuk to warrant setting the verdict aside. Demjanjuk’s U.S. citizenship was restored and he returned to Cleveland—only to have his citizenship stripped from him a second time after the OSI determined that he had indeed been a guard in a death camp, just that the camp was Sobibor rather than Treblinka. He was deported to Germany, where he was convicted of participating in the murder of 28,000 Jews and was sentenced to five years in prison. So the original prosecution was flawed—and Sher paid a dear price for that error of judgment in terms of his influence and reputation—but the end result, the conviction of a war criminal, was just and fair. (The penalty was ridiculous— about two hours of prison time for each of the people he helped kill—but I suppose the fact that the defendant was already in his 90s contributed to the decision to imprison him for only five years. He was released pending appeal and died the following year in a nursing time, having avoided any jailtime at all.)

We are in the final throes of the effort to bring Nazis to justice. And that’s really saying the very least. Josef Schuetz, now 100, is on trial in Brandenberg, Germany, for having “knowingly and willingly” assisted in the murder of 3,518 prisoners at Sachsenhausen between 1942 and 1945. More specifically, he is accused of abetting the execution of Soviet POWs by firing squad and the murder of thousands of other prisoners with poison gas. He looks like a very old man in his weirdly cheery Mondrian-style sweater as he hides his face from the camera in shame. (Click here to see what I mean.) Slightly younger is Irmgard Furchner, 96, who stands accused of complicity in the murder of more than 11,000 people at the concentration camp at Stutthof, near Gdansk in Poland. She fled the proceedings, but was quickly located and obliged to return to the courtroom. And she has every reason to be worried about the verdict: just last year one of her colleagues at Stutthof, Bruno Dey, was found guilty of 5,320 counts of accessory to murder. (That trial was even more Kafkaesque than the others because Dey, now 93, was only seventeen years old when he worked as a guard at Stutthof and so was tried in juvenile court.) And still in the wings is the coming prosecution, possibly, of Herbert Waller, 96, accused of being the last living perpetrator of the unspeakable horror of Babi Yar, where 33,000 Jews were murdered in the course of two days at the end of September 1941.

I have no opinion regarding the guilt or innocence of those still on trial—that is for the court to decide. But I have strong feelings about the reasonableness of these trials: instead of seeing them as part of some insane effort to persecute extremely old people for things they did a lifetime ago, I think of this as a last-ditch effort to seek some sort of justice for the dead. I agree that the numbers confound rationality: in a world in which murdering someone fully intentionally and with malice aforethought can lead to interminable incarceration or, in some states, execution, what do you do with someone found guilty of participating in the brutal murder of tens of thousands of victims? Even so, the notion of turning away from prosecution because of someone’s age seems unjustifiable. Besides, these people have already won—they’ve already lived long, full lives and now are only facing justice at the very tail-end of their days. So it’s only justice itself—as embodied in the principle that you can’t age out of your responsibility of having participated in genocide—that prosecuting them will serve. But, at least for me, that’s good enough. Neal Sher was the embodiment of the effort to seek justice for the dead of the Shoah. May he now rest in peace and may his memory be a blessing for us all.

L'ovdah U-l'shomrah

 When I listen to the Torah read weekly in shul, most things sounds familiar. I’ve read most of the year’s 400+ aliyot myself from the scroll over the years. And the study of Scripture—and specifically the Torah—has been in a real sense my life’s work. So you wouldn’t think the text would have any surprises left for me to encounter. And that actually is correct, or at least it’s correct in the sense that there are no rooms in the mansion I haven’t personally wandered through many times in the course of these many years I’ve been at it. And yet it’s also not correct—because I regularly find myself focusing on words or expressions, sometimes whole verses, that I’ve passed by but never truly internalized in terms of their implications, not for the world in general or for the scriptural narrative, but for me personally.

I had just that kind of experience last week listening to Bereshit, the first section in our year-long lectionary cycle of Torah readings.

It’s a long parashah. It covers—or, more accurately, races through—the creation of the universe, the life stories of Adam and Eve (including their expulsion from Eden), the story of Cain and Abel, the generations from Adam to Noah, and that weird bit at the end about the “sons” of God marrying (or something) the “daughters” of Adam (and presumably Eve), which I’ve never known precisely what to do with. (Fortunately, it’s one of those stories a rabbi never has to preach about because there’s so much else to choose from in the parashah.)

Maybe it was because of something I read in the paper just the week before (see below), but somehow the verse about Adam’s initial experience in Eden spoke to me in a way it hadn’t on previous visits. The storyline, we all know. God makes Adam from the dust of the earth, then infuses him with “the breath of life,” thus making him—and Scripture says this explicitly—into a living creature. God then takes him, the first man and at least so far the sole human being, and sets him in the Garden of Eden l’ovdah u-l’shomrah. It’s those last two words that spoke unexpectedly sharply to me. What they mean isn’t that hard to say: the narrative is explaining that Adam, once set into the Garden, was given two specific tasks: to work the garden (presumably to grow things there in the manner of farmers working the land) and to guard it.

What Scripture omits to say is whom (or what) Adam is being charged with protecting the Garden from. There are no other people in the world, not even Eve. There aren’t any animals in the world either—in this version of the creation story, the animals too have yet to be created. So since Adam can’t control the weather (just as we also cannot) and has no people or beasts to worry about in terms of the damage they might do, from whom precisely is he being commanded to guard the garden?

The answer, staring right at me after all these years, was and is chilling: he’s being told to guard it from himself, from his inattention and innate greed, from his also innate stupidity and cupidity, from his own propensity—innate in his descendants as well—to ruin what God has offered him instead of protecting it, guarding it, and guaranteeing that it survives humankind’s first generation and is there for the second.

Earlier in the week, I read an article in the paper that was truly chilling. Two, actually, one in the New York Times and one in the Atlantic.

The one in the Times was a report that the Fish and Wildlife Service, an agency within the Department of the Interior, has formally recognized twenty-two animal species and one plant species as being extinct. The list is varied too, including eleven birds, eight varieties of freshwater mussels (who knew?), two kinds of fish, a species of bat, and one plant. All have existed not merely for millennia, but for eons, almost certainly having been present on the planet before there were anything like human beings. It’s true that the news about animal preservation isn’t all bad—since the Endangered Species Act was passed by Congress in 1973, fifty-four species on the “almost gone” list have been removed from that depressing roster because their populations have recovered to the extent that they are no long in danger of disappearing. Another forty-eight have been moved from the “endangered” list to the merely “threatened with extinction” list. So all of that is good. But not at all good is that almost two dozen species of life are now gone from the stage, presumably forever. Indeed, the only way to get off the “extinct” list would be for some enterprising birder or zoologist to prove that the species in question wasn’t really extinct in the first place. But, barring someone proving the authorities wrong, once you’re gone, you’re gone. And there is no possibility of coming back. Jurassic Park does not actually exist.

I’m not a birder. I’m not even such an avid student of the natural world. (My studies more often than not take me into the wholly unnatural world of abstruse halakhic discourse.) But something about this news both shocked and moved me. Click here, for example, to see a brief film clip made in Louisiana in 1935 showing ivory-billed woodpeckers doing their thing in a local tree. If you open that article in the Times (click here), you can also access a sound file that will allow you to hear what they sounded like, those woodpeckers. So you can see them and you can hear them…but only by clicking on internet links and not by actually encountering them in the wild. Why do I care? Even I’m not so sure. My world isn’t materially affected by the disappearance of the ivory-billed woodpecker or the Maui nukupu’u bird (pictured below), of neither of which I had ever heard until I read that article in the paper last week. Nor had I ever heard of the Little Mariana fruit bat. But that doesn’t seem to matter that much in the wake of their disappearance because the larger picture—featuring even any of the remarkably diverse fauna that co-inhabit this great planet with we human beings disappearing because we have either allowed their natural habitats to vanish or because we have overfished or poached their species into extinction, or because we have altered the climate to make their future existence untenable—that picture of us failing to live up to God’s simple command to Adam to guard and watch over the flora and fauna of the world, that is chilling and upsetting.

No one knows for sure how many species of animal life there are. 1.3 million have been catalogued by scientists, but it is believed that there could be as many as 8 million animal and plant species on the planet. (That figure includes insects.) Since the beginning of the sixteenth century, almost 700 species have been declared extinct. Even if some of those species are merely hiding and may come out again one day to play, it is certain that the vast majority of them are gone forever. I wouldn’t go so far as to say that we’ve failed utterly to live up to l’ovdah u-l’shomrah, but we are certainly skating ever closer to that depressing edge each time a species vanishes from the world. As the song goes, we really do need to find a way back to the garden.

The other article was a piece by Marina Koren in the Atlantic the other week (click here) about the moon, in which she explained—in a strangely moving way—that the moon is slowly but inexorably moving away from the earth. It’s a strange idea. It’s not happening quickly at all. But the thought that the most familiar of all nighttime sights—the moon resplendent among the stars in the starry vault of heaven overhead—is also not permanent (or at least not permanent-permanent) both surprised and slightly unnerved met. It turns out—also who knew?—that 4.5 billion years ago, when the moon first came into existence out of all sorts of rocky debris that had been encircling the earth since it first came into existence, the moon was ten times closer to the earth as it orbited endlessly in the nighttime sky. Also unknown to me was that the moon glowed red back then in the sky at night, having been born of some sort of collision between earth and an unidentified object the size of Mars. Back then, the author notes almost casually, “the moon was moving away from the earth at a rate of eight inches per year.”

Things have slowed down considerably. Also in play is the length of the day: billions of years ago, the moon was closer and the earth spun faster—as a result of which the terrestrial day lasted about four hours. Now it will take a full century for the length of our day to increase by a second or two. In about 600 million years, the moon will be so far from the earth that there will be no more solar eclipses because the moon will be too distant to block the sun. So you see this isn’t something to worry about too intensely. But it still struck me as a profound counter-lesson to the one about the extinct plant and beasts: there are, in the end, things we can’t change about our world and which we must therefore accept, but there are also things we can definitely alter, and for the better, and which we must address. The moon will be up there for the indefinite future. Yes, it’s fleeing our embrace…but only very slowly. About that we can do nothing at all. But the degree to which we allow the environment to deteriorate by ignoring the impact our activities are having on our planet’s climate is the degree to which we have set ourselves on the road to perdition. No wonder the moon is fleeing! It apparently has that capacity. But we ourselves have no real choice but to clean up our mess—or at least to try to—and to do what we can, even at this late date, to foul our nest no longer.