Amicus Curiae Brief — Ruben Gutierrez, Petitioner v. Luis V. Saenz, et al.

No. 19A1052

CAPITAL CASE

In the Supreme Court of the United States

__________

RUBEN GUTIERREZ,

Petitioner,

v.

LUIS V. SAENZ; FELIX SAUCEDA, CHIEF, BROWNVILLE POLICE DEPARTMENT; BRYAN

COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE; LORIE

DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION; BILLY LEWIS, WARDEN, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, HUNTSVILLE UNIT,

Respondents.

_________

ON APPLICATION FOR STAY OF EXECUTION PENDING CONSIDERATION AND DISPOSITION OF WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

__________

UNOPPOSED MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE,

MOTION FOR LEAVE TO FILE IN COMPLIANCE WITH RULE 33.2,

AND BRIEF AMICUS CURIAE OF THE TEXAS CATHOLIC

CONFERENCE OF BISHOPS IN SUPPORT OF PETITIONER

__________

STEVEN LEVATINO

ANDREW MACRAE

LEVATINO | PACE

1101 S. Capital of Texas Hwy, K-125

Austin, TX 78746

HON. DOUGLAS S. LANG

DORSEY & WHITNEY LLP

300 Crescent Court, Suite 400

Dallas, TX 75201

TIMOTHY J. DROSKE

Counsel of Record

DORSEY & WHITNEY LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

(612) 340-2600

droske.tim@dorsey.com

Counsel for Amicus Curiae

ii

UNOPPOSED MOTION OF AMICUS CURIAE THE TEXAS CATHOLIC

CONFERENCE OF BISHOPS FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF APPLICATION

The Texas Catholic Conference of Bishops respectfully moves, pursuant to Supreme Court Rule 37.2, for leave to file a brief as amicus curiae in support of

Petitioner’s application for a stay of execution. All parties have advised that they

do not oppose the filing of the amicus brief.

The Texas Catholic Conference of Bishops is an unincorporated association

consisting of the bishops of fifteen Catholic Dioceses in Texas and the Ordinariate

of the Chair of St. Peter. Through this association, the various bishops speak with

one voice on issues facing the Catholic Church in Texas.

The Bishops regularly advocate for both religious liberty and mercy and justice for prisoners, especially those on death row, before the Texas legislature and

state and federal courts. See, e.g., Amici Curiae Brief for Texas Catholic Conference of Bishops and Catholic Mobilizing Network, Saldano v. Davis, No. 19-5171

(U.S.) (death penalty matter); Whole Woman’s Health v. Smith, 896 F.3d 362, 37274 (5th Cir. 2018) (prevailing party in pro-life advocacy and religious autonomy matter); Amici Curiae Brief for Texas Catholic Conference et al., Cannata v. Catholic

Diocese of Austin, 700 F.3d 169 (5th Cir. 2012) (ministerial exception case); 2019

Legislative

Agenda,

TCCB,

https://txcatholic.org/wp-content/up-

loads/2018/10/86th-Legislative-Session-Agenda-FINAL.pdf. Relevant to this application, the Bishops have advocated—on moral and legal grounds—for the re-

iii

versal of the Texas Department of Criminal Justice’s (“TDCJ”) April 2019 decision to ban all chaplains, even TDCJ-employed clergy, from accompanying the

condemned in the execution chamber.

The Bishops’ deep familiarity with the history of the policy at issue, and

extensive experience in the area of religious liberty generally, can assist the

Court in deciding the motion before it, especially given the necessarily expedited

schedule. The Bishops also have a unique perspective as a body of leaders of a

religious community whose ministers attend to the dying and the imprisoned,

including those on death row. See, e.g., In re Halo Wireless, Inc., 684 F.3d 581,

596 (5th Cir. 2012) (amicus participation is appropriate “when the amicus has

unique information or perspective”) (citation omitted); Neonatology Assocs., P.A.

v. Comm’r, 293 F.3d 128, 132 (3d Cir. 2002) (Alito, J.) (explaining ways by which

amici with special experience or interests “may provide important assistance to

the court”). Leave to file may therefore assist in ensuring the specific religiousrights claims raised here are addressed “in the way that the claims require and

deserve,” such that the expedited schedule does not obscure key issues. Murphy

v. Collier, 139 S. Ct. 1475, 1485 (2019) (Alito, J., dissenting).

Therefore, and with the parties confirming their nonopposition, the Texas

Catholic Conference of Bishops respectfully seeks leave to file the attached

amicus curiae brief supporting reinstatement of the District Court’s stay.

iv

Respectfully submitted,

STEVEN LEVATINO

ANDREW MACRAE

LEVATINO | PACE

1101 S. Capital of Texas Hwy, K-125

Austin, TX 78746

HON. DOUGLAS S. LANG

DORSEY & WHITNEY LLP

300 Crescent Court, Suite 400

Dallas, TX 75201

TIMOTHY J. DROSKE

Counsel of Record

DORSEY & WHITNEY LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

(612) 340-2600

droske.tim@dorsey.com

Counsel for Amicus Curiae

v

MOTION OF AMICUS CURIAE TEXAS CATHOLIC CONFERENCE OF

BISHOPS FOR LEAVE TO FILE BRIEF IN COMPLIANCE WITH RULE

33.2

In light of the emergency nature of the briefing, and to the extent not already

permitted by the Court’s COVID-19 order of April 15, 2020 regarding filings, the

Texas Catholic Conference of Bishops respectfully moves for leave to file its amicus curiae brief in support of Petitioner’s Application for Stay of Execution in

compliance with Rule 33.2. Since no word or page count is specified for an amicus

brief in Rule 33.2, the proposed brief complies with Rule 33.1 with regard to

length (less than 6,000 words), and alternatively complies with the lowest page

count applicable to documents under Rule 33.2 (15 pages).

Respectfully submitted,

STEVEN LEVATINO

ANDREW MACRAE

LEVATINO | PACE

1101 S. Capital of Texas Hwy, K-125

Austin, TX 78746

HON. DOUGLAS S. LANG

DORSEY & WHITNEY LLP

300 Crescent Court, Suite 400

Dallas, TX 75201

TIMOTHY J. DROSKE

Counsel of Record

DORSEY & WHITNEY LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

(612) 340-2600

droske.tim@dorsey.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Do the First Amendment and the Religious Land Use and Institutionalized

Persons Act require a prison system to provide a condemned prisoner with access

to clergy in the execution chamber, where:

(1) the prisoner can be accommodated with clergy employed by that prison

system that the prison has previously and recently allowed in the chamber

without incident; and

(2) the prison system does not claim any harm to a compelling interest in being

unable to apply its prohibition to the specific petitioning prisoner?

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................... i

TABLE OF AUTHORITIES .............................................................................. iii

INTEREST OF THE AMICUS ........................................................................... 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................ 1

ARGUMENT ........................................................................................................ 5

I. TDCJ has not carried its burden under RLUIPA ................................... 5

A. A prohibition on access to comfort of clergy at death

substantially burdens Gutierrez’s exercise ........................................ 5

B. TDCJ cannot satisfy strict scrutiny ‘to the person’............................ 9

II. The Free Exercise Clause likewise protects Gutierrez’s access to

clergy ....................................................................................................... 12

A. Policies that target a particular religious practice receive strict

scrutiny, even in prison. .................................................................... 12

B. Even under Turner, TDCJ must grant Gutierrez’s request ............ 13

III. Unlike most challenges to executions and related conditions, relief

for Gutierrez poses no impediment to execution .................................. 14

CONCLUSION .................................................................................................. 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Amatel v. Reno,

156 F.3d 192 (D.C. Cir. 1998) ...................................................................... 13

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................................ 8

Central Rabbinical Congress v. NYC Dep’t of Health & Mental Hygiene,

763 F.3d 183 (2d Cir. 2014) ......................................................................... 12

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520, 546 (1993) .............................................................................. 12

City of Boerne v. Flores,

521 U.S. 507 (1993) ........................................................................................ 9

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................................................. passim

Employment Div. v. Smith,

494 U.S. 872 (1990) .................................................................................. 4, 12

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) .............................................................................. passim

Holland v. Florida,

560 U.S. 631 (2010) ...................................................................................... 15

Holt v. Hobbs,

574 U.S. 352 (2015) .............................................................................. passim

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) .................................................................................. 12

Overton v. Bazzetta,

539 U.S. 126 (2003) .............................................................................. passim

Sherbert v. Verner,

374 U.S. 398 (1963) ........................................................................................ 9

iv

Thomas v. Review Bd.,

450 U.S. 707 (1981) ........................................................................................ 9

Thronburgh v. Abbott,

490 U.S. 401 (1989) ...................................................................................... 13

Turner v. Safley,

482 U.S. 78 (1987) .................................................................................. 12, 13

Ward v. Polite,

667 F.3d 727 (6th Cir. 2012) ................................................................... 12-13

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) .......................................................................... 7

Statutes

42 U.S.C. § 2000cc-5. ................................................................................... 3, 5, 8

Other Authorities

Catechism of the Catholic Church § 1013 .......................................................... 6

Catechism of the Catholic Church § 1501 .......................................................... 6

Catechism of the Catholic Church § 1502 .......................................................... 6

Catechism of the Catholic Church § 1524 .......................................................... 6

Catechism of the Catholic Church § 1525 .......................................................... 6

INTEREST OF THE AMICUS 1

The Texas Catholic Conference of Bishops is an unincorporated association

consisting of the bishops of fifteen Catholic Dioceses in Texas and the Ordinariate of the Chair of St. Peter, providing a collective voice for the various bishops

on issues facing the Catholic Church in Texas. As explained in its Motion for

Leave, the Bishops frequently speak before the courts and legislature for both

religious liberty and mercy and justice for prisoners, especially those on death

row. The Bishops are intimately familiar with the history of the recent change

to deny chaplains, and have a unique perspective as leaders of a religious community whose ministers attend to the Texas imprisoned. The Bishops submit

this brief to ensure that this appeal’s expedited pace, and contentious deathpenalty debates, do not prevent the Court from adjudicating the important religious-liberty issues “in the way that the claims require and deserve.” Murphy v.

Collier, 139 S. Ct. 1475, 1485 (2019) (Alito, J., dissenting).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This is an unusual, and unusually straightforward, case. Like condemned

men have for thousands of years before him, Gutierrez sincerely believes that

having a chaplain at the moment of his execution provides crucial help to his

No counsel for a party authored any portion of this brief. No one other than

amicus curiae or its members made any monetary contribution intended to fund

the preparation or submission of the brief. All parties have confirmed they do

not oppose the filing of this brief.

1

2

soul. Almost a year ago, Gutierrez asked to have clergy in the chamber with him.

But the Texas Department of Criminal Justice (TDCJ) refused, even though it

would have granted the exact request just four months before. TDCJ refusal

came under a blanket policy depriving all on death row clergy in their final moments—crucially, regardless of specific religious need or specific security consideration. And as the District Court stated, TDCJ has never suggested that it has

a compelling reason to specifically deny Gutierrez’s request—as opposed to all

inmates’ requests, or requests posing safety concerns.

That admission is decisive under RLUIPA. An absolute ban on Gutierrez’s

ability to engage in this religious exercise is a substantial burden for purposes

of RLUIPA. And TDCJ has effectively conceded that it cannot meet RLUIPA’s

strict scrutiny test. Thus, the District Court’s stay should be reinstated.

Two mistakes led this case to the Court. First, the Fifth Circuit failed to reach

RLUIPA’s strict scrutiny test, instead concluding that a blanket prohibition of

even ancient religious practices—if not coercing someone to violate their faith—

cannot be a substantial burden, only a withheld benefit. That conclusion is contrary to the unanimous opinions in Holt and Cutter. First, Cutter explains that

prohibitions of practices available outside the prison walls function as “government-created burdens” on religious exercise. Cutter v. Wilkinson, 544 U.S. 709,

720 (2005). And in Holt, this Court unanimously declined to ask whether main-

3

taining a half-inch beard was necessary to avoid violating a “dictate of [petitioner’s] religious faith.” Holt v. Hobbs, 574 U.S. 352, 361-62 (2015). It emphasized that being “able to engage in other forms of religious exercise,” id. (emphasis added), does not change the burden inquiry, as RLUIPA protects “any exercise of religion.” 42 U.S.C. § 2000cc-5(7)(A).

Second, TDCJ misunderstood the direction from this Court in Murphy—direction it concedes led it to create this policy. TDCJ thought this Court was indicating that equality of deprivation is an absolute defense to RLUIPA and Free

Exercise claims, even where no compelling interest supports denial in a particular policy application. But this Court has unanimously affirmed that RLUIPA

always “requires the Government to demonstrate that the compelling interest

test is satisfied through application of the challenged law ‘to the person’—the

particular claimant whose sincere exercise of religion is being substantially burdened.” Holt, 574 U.S at 363 (citation omitted)

Here, TDCJ has never argued that allowing access to its own TDCJ Christian

chaplains—still “willing” to accompany Gutierrez at death, ROA.805—poses any

threat to safety or controlled access. ROA.827. TDCJ represented to this Court

last year that its chaplains’ “years of devoted service” ensured they were “truly

dedicated to TDCJ’s interests” and could be trusted in the chamber. TDCJ Opp.

Stay at 22, Murphy, 139 S. Ct. 1475 (No. 18A985).

4

Rather, TDCJ only asserts that it has a compelling interest as to other prisoners, concerned that a court will compel chaplain access to those prisoners if an

accommodation is granted here. ROA.827-28; see Fifth Circuit Mot. Vacate

(“Mot. Vacate”) 32, 34. So TDCJ relies on the “classic rejoinder of bureaucrats

throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 436 (2006).

This is not how RLUIPA functions. Yes, a neutral policy narrowly tailored to

serve a compelling interest will ordinarily survive RLUIPA challenge—but not

where applying the policy ‘to the person’ does not serve that interest. And per

Cutter, granting an individual RLUIPA accommodation does not render the

overall policy nonneutral and therefore open to constitutional attack. Rather,

RLUIPA is designed to give exceptions to neutral and generally applicable regulations. If Gutierrez is granted access to a chaplain because it can be done readily and safely, other prisoners—of any faith—would still have to contend with

any compelling interests TDCJ could show in applying the policy to them.

While RLUIPA resolves this case, one more error deserves correction. Where

a policy was adopted for nonneutral reasons, such circumstances should displace

Turner, as they displace Employment Division v. Smith, 494 U.S. 872 (1990),

outside the prison walls. And in any event, Gutierrez should have prevailed under Turner when analyzing the policy as extended to Gutierrez, not all prisoners.

5

Emphasizing how readily TDCJ could offer Gutierrez a chaplain with no

harm to its own interests also clarifies the practical reality of the case. Unlike

capital challenges threatening a state’s ability to impose a death sentence at all,

TDCJ could moot Gutierrez’s claims at any time by providing him the same chaplain access it would have gladly provided in March 2019. This Court should explain to TDCJ that even a policy supported by a compelling interest in other

cases must bend where, as applied to a particular claimant, it becomes the sort

of “unnecessary” or “arbitrary” restriction with which RLUIPA is concerned.

Cutter, 544 U.S. at 716-17 (citation omitted).

ARGUMENT

I. TDCJ has not carried its burden under RLUIPA.

A. A prohibition on access to comfort of clergy at death substantially

burdens Gutierrez’s exercise.

RLUIPA defines “religious exercise” to include “any exercise of religion,

whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C.

§ 2000cc-5(7)(A). The District Court noted that Gutierrez sincerely believes that

the presence of clergy at death “would help to ensure his path to the afterlife,”

i.e., Heaven. ROA.805, ROA.829. And the Fifth Circuit acknowledged that his

claim implicated “the final moment of spiritual comfort” that is “important” in

the Christian tradition. Fifth Circuit Op. 8; see id. at 7 (acknowledging “strong

religious arguments made by Gutierrez and” the Bishops).

6

“Important” is an understatement. From Christianity’s beginning, priests

have been present at the time of death to hear confessions, offer the Eucharist

and administer last rites. See, e.g., Catechism of the Catholic Church §§ 15241525 (concerning viaticum administered to those “at th[e] moment of ‘passing

over’ to the Father”). The Catholic Catechism teaches over 1 billion Catholics,

consistent with historic Christian tradition, that the final moments offer a

unique final chance to prepare for “our heavenly homeland” and for pardon and

redemption. See Catechism §§ 1525; 1501-1502 (effect of expected death on discernment); § 1013 (moment of death “decides [man’s] ultimate destiny”) The familiar Hail Mary seeks prayer for “us sinners, now and at the hour of our death.”

Saint Catherine of Siena is remembered as converting Niccolo di Toldo in prison

and accompanying him on the execution block as the blade fell (as depicted in

her monument by Castel Sant’Angelo), and Saint Teresa of Calcutta (“Mother

Teresa”) dedicated her ministry to the principle that “no one should die alone.”

As the District Court noted, the record at this stage does not indicate that

providing access to a chaplain sometime before execution identically serves

Gutierrez’s spiritual needs. See Murphy, 139 S. Ct. at 1484 (Alito, J., dissenting)

(suggesting that allowing a practice “indistinguishable” within an inmate’s beliefs from a prohibited one might alleviate a substantial burden). Rather, consistent with tradition, Gutierrez believes that attention in those final moments

7

“will help him” prepare for eternal life. Id. (recognizing this distinction in assessing Murphy’s case); see ROA.829. And where practices are not indistinguishable, whether “other forms of religious exercise” remain available is outside

“RLUIPA’s ‘substantial burden’ inquiry.” Holt, 574 U.S. at 361-62. The Fifth Circuit did not presume otherwise.

Where the Fifth Circuit erred was finding RLUIPA protects only against burdens in the form of “truly pressur[ing] the adherent to significantly modify his

religious behavior and significantly violate his religious beliefs.” Fifth Circuit

Op. 8 (emphasis added; citation omitted) (describing TDCJ policy as “preventing

the adherent from enjoying some benefit that is not otherwise generally available”). That is wrong on both scores.

First, “flatly prohibiting” Gutierrez from access to clergy in the execution

chamber during his death does significantly modify his religious exercise. Yellowbear v. Lampert, 741 F.3d 48, 56 (10th Cir. 2014) (Gorsuch, J.); see Holt, 574

U.S. at 361 (if exercise is “grounded in a sincerely held religious belief,” enforced

prohibition “substantially burdens his religious exercise”). TDCJ is not merely

making Gutierrez’s religious practice more difficult. It is placing a direct, irrevocable prohibition on his sincere religious exercise, and at the most critical time

for such exercise—when the soul is departing this world for the next. This Court

has long recognized that, because prisons exercise “control” that is “severely disabling to private religious exercise,” denying permission for a practice produces

8

“government-created burdens on private religious exercise.” Cutter v. Wilkinson,

544 U.S. 709, 720-21 (2005). The Fifth Circuit erred in not recognizing this reality. See Yellowbear, 741 F.3d at 55 (burden of “prevent[ion]” is “substantial”).

Second, the panel’s “significantly violate” standard is inconsistent with

RLUIPA’s text and this Court’s precedent. RLUIPA protects “any exercise of religion, whether or not compelled by or central to, a system of religious belief.” 42

U.S.C. § 2000cc-5(7)(A). “Any” means “any,” not just those judged “significant.”

On this record, there is no dispute that having clergy present at the time of execution is Gutierrez’s exercise of religion. This Court has repeatedly “considered

and rejected” arguments that second-guess religious beliefs or attempt to smuggle in an evaluation of importance. Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 725 (2014). While TDCJ can introduce evidence of alternative-but-distinct

accommodations for purposes of its strict scrutiny burden (e.g., efforts to pursue

least-restrictive means), it does not lift the substantial burden on this religious

exercise to argue Gutierrez might be “able to engage in other” exercises that, as

here, fail to meet the claimant’s sincere religious needs. Holt, 574 U.S. at 362.

Further, Holt stands directly contrary to the proposition that one must be

asked to violate a tenet, rather than be forced to forego a spiritually meaningful

practice one could engage in outside prison, to experience a substantial burden.

See Holt, 574 U.S. at 362 (whether one’s “religion would ‘credit’ him for attempting to follow his religious beliefs,” such that the prohibition did not make him

9

violate his faith, was irrelevant under RLUIPA). Nor is any of this a surprise. If

denying unemployment benefits is a substantial burden on religious exercise,

Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981); Sherbert v. Verner, 374 U.S.

398, 404 (1963), then unnecessarily denying a condemned man his only chance

at an ancient religious rite is too.

B. TDCJ cannot satisfy strict scrutiny ‘to the person.’

RLUIPA imposes an “exceptionally demanding” strict-scrutiny standard,

obliging the government to provide that “denying [a burdening] exemption is the

least restrictive means of furthering a compelling government interest.” Holt,

574 U.S. at 364-65 (citation omitted); see City of Boerne v. Flores, 521 U.S. 507,

534 (1993) (calling this the “most demanding test known to constitutional law”).

Crucially here, RLUIPA’s standard—like RFRA’s—requires “case-by-case

consideration

of

religious

exemptions

to

generally

applicable

rules,”

“scrutiniz[ing] the asserted harm of granting specific exemptions to particular

religious claimants.” O Centro, 546 U.S. at 431, 436; see Holt, 574 U.S. at 363

(citing same and considering the “marginal interest”) (citation omitted)

TDCJ has all but admitted it lacks a compelling interest in this case. As the

district court noted, “Defendants do not suggest that the relief Gutierrez

requests . . . will pose any security threat in his own execution,” only that others

“may occur in other executions.” ROA.827 (emphasis added); see Mot. Vacate 32,

34. Put differently, TDCJ’s argument is the “classic rejoinder of bureaucrats

10

throughout history”—namely: “If I make an exception for you, I’ll have to make

one for everybody, so no exceptions.” O Centro, 546 U.S. at 436 (2006). But by

law, strict scrutiny “scrutinize[s] the asserted harm of granting specific

exemptions to particular religious claimants.” O Centro, 546 U.S. at 430-31

(2006). TDCJ did not suggest below that allowing Gutierrez comfort of clergy will

harm its interests—nor could it have, when it has stated that the available

chaplains’ “years of devoted service” ensures they are “truly dedicated to TDCJ’s

interests” and could be trusted in the chamber. TDCJ Opp. Stay at 22, Murphy,

139 S. Ct. 1475 (No. 18A985). So TDCJ fails strict scrutiny.

TDCJ also fails under the least restrictive means prong, since it cannot show

denying Gutierrez in-chamber clergy is the least restrictive means of promoting

security. Again, TDCJ defends denying Gutierrez his rights not because his

request jeopardizes prison security, but because other prisoners’ requests in the

future might. Mot. Vacate 33-35. This is the very definition of overinclusive.

Moreover, until last year, TDCJ would have granted Gutierrez’s request, further

demonstrating a feasible, less restrictive alternative.

What remains of TDCJ’s opposition relies on a misunderstanding of the

concurrence in Murphy, both in its implications for RLUIPA claims and its

understanding of neutrality.

First, the concurrence expressed the view that TDCJ’s policy “likely” passed

constitutional and RLUIPA muster under the facts and interests outlined in

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Murphy. 139 S. Ct. at 1476 (Kavanaugh, J., concurring). But that opinion did

not displace the ‘to the person’ standard. And it did not presume that RLUIPA

would be satisfied even where an ordinary “compelling interest in controlling

access to the execution room,” id., is not undercut by the requested

accommodation, as demonstrated by TDCJ’s pre-April 2019 practice. But here,

TDCJ has not demonstrated any such compelling interest in this application,

and if it had tried, the effort would have been undercut by its uninterrupted

practice of allowing clergy in the execution chamber prior to April 2019.

Second, nothing in the concurrence suggests a case-specific, legallymandated accommodation would “violate[] the Constitution’s guarantee of

religious equality” in the manner of a policy that facially discriminated between

religions. Id. And of course, it would not—RLUIPA specifically contemplates

that it would displace “neutral, generally applicable laws” in case-specific

circumstances. Holt, 574 U.S. at 356. Such accommodations, even if granted to

a person of a particular faith, do not thereby violate First Amendment

guarantees of neutrality. Cutter, 544 U.S. at 720. If they did, “the classic

rejoinder of bureaucrats” against case-specific exceptions would not be a

Supreme Court punchline, but the rule of RFRA and RLUIPA. O Centro, 546

U.S. at 436. This Court should clarify that it is not. And should that clarification

prompt TDCJ to rediscover its willingness to accommodate Gutierrez, all the

better.

12

II. The Free Exercise Clause likewise protects Gutierrez’s access to

clergy.

A. Policies that target a particular religious practice receive

strict scrutiny, even in prison.

“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny”—that is, strict scrutiny.

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993).

In rejecting Gutierrez’s Free Exercise claim, the Fifth Circuit relied solely on

Turner v. Safley’s lenient standard. 482 U.S. 78 (1987). But Turner is inapplicable where the government’s regulation is not neutral towards religion. Id. at 90

(“the governmental objective must be a legitimate and neutral one” for Turner

to apply (emphasis supplied)). In this way, Turner acts as an analogue to Smith,

which only governs neutral and generally applicable laws.

A government policy is not neutral when directly aimed at a religious practice. And “the historical background of the decision under challenge” is key to

analyzing whether even a “subtle departure[] from neutrality” has occurred.

Masterpiece Cakeshop v. Colo. Human Rights Comm’n, 138 S. Ct. 1719, 1731

(2018) (citations omitted). In Central Rabbinical Congress v. NYC Department

of Health & Mental Hygiene, a New York regulation banned an Orthodox Jewish

religious practice, metzitzah b’peh. 763 F.3d 183, 186 (2d Cir. 2014). Because

the regulation was admittedly “prompted” by this specific practice, the Second

Circuit applied strict scrutiny. Id. at 195. Similarly, in Ward v. Polite, the Sixth

13

Circuit held strict scrutiny applied where “[a]mple evidence support[ed] the theory that” an anti-referral policy never existed “until [Plaintiff] asked for a referral on faith-based grounds.” 667 F.3d 727, 739 (6th Cir. 2012). Here, all agree

TDCJ changed its policy in response to a prisoner’s request for a Buddhist chaplain in Murphy v. Collier. Mot. Vacate 28-29. That does not mean the policy could

never be defended from Free Exercise attack, where serious compelling interests

support its application. But it does mean the right standard under the Free Exercise Clause is strict scrutiny—which TDCJ cannot satisfy on this record.

2. Even under Turner, TDCJ must grant Gutierrez’s request.

Even under Turner’s deferential standard, Gutierrez should prevail. This

Court considers: (1) whether a policy has a “valid, rational connection” to a “legitimate governmental interest”; (2) whether “alternative means are open” for

“exercis[ing] the asserted right”; (3) the in-prison impact of an accommodation;

and (4) whether there are “ready alternatives” to the regulation. Overton v.

Bazzetta, 539 U.S. 126, 132 (2003) (internal quotations and citation omitted).

Legitimate government interest. The government’s interest must be “neutral”

towards First Amendment rights. Turner, 482 U.S. at 90; Thronburgh v. Abbott,

490 U.S. 401, 414-15 (1989). The D.C. Circuit has found this dispositive: “nothing

can save a regulation that promotes an illegitimate or non-neutral goal.” Amatel

v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998) (emphasis added). As explained,

TDCJ’s policy does not qualify as neutral. Regardless, no legitimate government

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interest supports extending the policy to even those requests all agree will not

“pose any security threat.” ROA.827-28.

Alternative means. Gutierrez sincerely believes that a Christian chaplain’s

presence at the moments of death will help him reach Heaven. On this record,

TDCJ does not provide alternative means to experience comfort of clergy to assist Gutierrez in his significant final moments of penitence.

Impact on prison resources and ready alternatives: Any impact from engaging

existing TDCJ-employed chaplains for the relevant afternoon for work they were

previously engaged in would be de minimis. And the ready alternative was, until

recently, TDCJ policy.

III.

Unlike most challenges to executions and related conditions, relief for Gutierrez poses no impediment to execution.

Finally, it would be a mistake to focus only the legal significance of how easily

TDCJ could accommodate Gutierrez, to the exclusion of its practical significance.

While the Bishops oppose the death penalty in all circumstances, honoring the

religious liberty claim in this case does not pose a true impediment to the application of the death penalty. TDCJ can moot this claim and proceed with execution, at any stage and at any time, by allowing the chaplain access it would have

readily allowed as a matter of policy in March 2019. The irony is that it is not

clear that TDCJ even wants to deny Gutierrez the comfort of clergy, rather than

merely seeking to insulate itself from claims by those it could not as readily accommodate. As explained, that relies on a mistaken understanding of this

15

Court’s disposition in Murphy and the case-by-case nature of RLUIPA claims.

This Court should set TDCJ on the right path, whether by reviving the District

Court’s stay or—if it thinks a stay inappropriate—entering a narrower injunction allowing TDCJ to proceed if it grants Gutierrez’s chaplain request. See Holland v. Florida, 560 U.S. 631, 650 (2010) (courts’ broad power to grant equitable

relief is not limited to that granted by the district court). Such an injunction

would at least protect Gutierrez’s religious liberty in this most crucial moment.

CONCLUSION

The Court should uphold the stay, or alternatively, order TDCJ to provide

Gutierrez with access to a Christian chaplain within the execution chamber.

JUNE 15, 2020.

Respectfully submitted,

STEVEN LEVATINO

ANDREW MACRAE

LEVATINO | PACE

1101 S. Capital of Texas Hwy, K-125

Austin, TX 78746

HON. DOUGLAS S. LANG

DORSEY & WHITNEY LLP

300 Crescent Court, Suite 400

Dallas, TX 75201

TIMOTHY J. DROSKE

Counsel of Record

DORSEY & WHITNEY LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

(612) 340-2600

droske.tim@dorsey.com

Counsel for Amicus Curiae