Thou Shall Not Kill: Is The Death Penalty An Indirect Violation Of the Establishment Clause?
Unsplash/Emiliano Bar: Prison cells at former Alcatraz Penitentiary in San Francisco, California.
By: Talia Charles and Tracy Osawe (Ed.)
March 22, 2023
Talia Charles is an undergraduate student at Fairleigh Dickinson University. She majors in Government and Politics with a minor in Criminology. Talia is set to graduate in May 2023. Upon graduating, Talia plans to take a gap year prior to applying to law school. During her gap year, Talia plans to supplement her work experience.
Sympathies are limited for those sentenced to death row. After all, capital punishment (is a punishment commonly reserved for the most heinous of crimes, where the aggravating factors are so prominent that anything mitigating seems trivial. Yet, the death penalty continues to be one of the most controversial legal topics in the United States. There are currently 24 states where the death penalty is legal, and various organizations within these states are advocating for its removal. Such organizations proposed many reasons for a nationwide abolition, ranging from executions being an expense to taxpayers to the inability of executions to deter crime. However, most constitutional arguments against the death penalty involve the Eight Amendment, in which opponents claim that the death penalty is a cruel and unusual punishment. Most of these arguments became unsubstantiated with the ruling of Gregg v. Georgia, in which the Supreme Court determined that the death penalty didn’t violate the 8th and 14th Amendments and thus was not unconstitutional.
Despite that, there is another amendment that doesn’t describe the death penalty as cruel but questions its legitimacy altogether; The First Amendment. To be more specific, The Establishment Clause. Written in the US Constitution as “Congress shall make no law respecting an establishment of religion,” the Establishment Clause states that the government cannot instate a national religion or commit acts that show unduly preference for one religion over others. At face value, a state’s preferential treatment for a belief and the constitutional validity of the death penalty may seem like isolated issues. Yet, the issue occurs when it is considered that the death penalty is perceived as acceptable only for those who have no religious objections to it. Furthermore, an Establishment Clause argument can be considered when religion was cited as the reasoning for the implementation of death penalty provisions in the first place. Three criminal cases address this very issue occurring in Texas, the state with the highest number of executions in the country.
These three cases were Holberg v. State, Hanson v. State, and Roach v. Dretke. Each appellant (or in Roach’s case petitioner) was charged with capital murder and sentenced to death. Holberg and Hanson appealed, while Roach filed for a writ of habeas corpus, protesting their sentencing. They described multiple points of error, but all brought forth the Establishment Clause for overturning their sentence. Holberg, whose case came first out of the three in the year 2000, argued that Texas Penal Code§19.03 and Article 37.071, which serve as the death penalty statutes in the state, violated the Establishment Clause for two reasons; "(1) the sponsors of the House Bill creating those statutes could not articulate a reasonable, secular purpose for their enactment but did articulate, at length, the religious purpose for the punishment, while siding, in fact, with the viewpoint of a particular and identifiable religious sect.” and “(2) "the effect of [the statutes is] to advance the beliefs of fundamentalist Protestants over those of other branches of American Christianity and other sects and religions that oppose the death penalty on contrasting religious grounds.” In other words, Holberg’s counsel claimed that those provisions were for religious reasons instead of secular ones and to advance fundamentalist Protestantism. Hanson and Roach, whose cases were argued later in 2001 and 2005 respectively, brought the same Establishment Clause claims in their arguments as well. For the appellants and the petitioner, they claimed that the House Bill that passed Texas Penal Code§19.03 and Article 37.071; Texas House Bill 200, was described to have religious backing during a 1973 debate. They refer to Representative Cobb’s statements, in which he cites several Bible passages in support of the death penalty. Representative Williamson followed Cobb’s state by describing how Mosaic Law allows for the death penalty, and that the Ten Commandments were meant for individuals to follow, not the State government.
The Lemon Test was used to evaluate the appellants' and petitioners’ claims. Drafted from the landmark Lemon v. Kurtzman decision, the Lemon Test used three prongs to determine whether a law, bill, or any other governmental statute violated the Establishment Clause. These prongs were as follows:
1. The statute must have a secular and nonreligious purpose.
2. The statute’s primary effect must not advance nor prohibit religion.
3. The statute must not cause excessive government entanglement with religion.
If the state or federal government violated any of these three prongs, they have violated the Establishment Clause and the statute is unconstitutional. In regard to Holberg’s case, using the Lemon Test, the Court of Criminal Appeals of Texas determined that HB 200, and by that extension Texas Penal Code§19.03 and Article 37.071, did not violate any prongs. In statements made by the Representatives, the Court expressed that Cobb and Williamson’s statements were made in the context of responding to Representative Leland’s statements, who cited the Ten Commandments as reasoning to oppose the death penalty. So, the Court emphasizes statements certain legislators make regarding a bill do not always reflect the entire legislature’s motivation behind that bill. And further explaining that the legislature’s reasoning for implementing HB 200 was mostly secular, citing reasons such as “the death penalty is the only proportional punishment for certain crimes” or “the death penalty ensures, at a minimum, that the offender will never harm anyone again”. Therefore, the first prong of the Lemon Test wasn’t violated. The Court also asserted that HB 200 capital punishment provisions did not have the primary effect of advancing or prohibiting religion, nor caused excessive government entanglement with any faith. Thus, because HB 200 satisfied the Lemon Test, the Court overruled Holberg’s point and upheld her sentencing.
The Texas Courts applied the rulings in Holberg to both Hanson v. State and Roach v. Dretke. The Texas Courts emphasized the fact that all three cases rejected the Establishment Clause. In fact, when Justice Yeakel wrote the majority opinion in Hanson, he described the Holberg decision as “instructive” when dealing with cases concerning the death penalty.
As was illustrated above, attempts to claim that the death penalty violates the Establishment Clause have not been successful. However, opponents of the death penalty would be well-advised to still refer to other provisions of the Bill of Rights to assert that capital punishment is indeed unconstitutional.