Amicus Curiae Brief — John H. Ramirez, Petitioner v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al.

No. 21-5592

IN THE

Supreme Court of the United States

————

JOHN RAMIREZ,

Petitioner,

v.

BRYAN COLLIER, Executive Director,

Texas Department of Criminal Justice;

BOBBY LUMPKIN, Director, TDJC, Correctional

Institutions Division; DENNIS CROWLEY, Warden,

TDCJ, Huntsville, TX,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF AS AMICI CURIAE OF THE UNITED

STATES CONFERENCE OF CATHOLIC

BISHOPS AND THE TEXAS CATHOLIC

CONFERENCE OF BISHOPS

IN SUPPORT OF PETITIONER

————

ANTHONY R. PICARELLO, JR.

JEFFREY HUNTER MOON

MICHAEL F. MOSES

DANIEL E. BALSERAK

U.S. CONFERENCE

OF CATHOLIC BISHOPS

3211 Fourth Street, NE

Washington, DC, 20017

STEVEN LEVATINO

Counsel of Record

LEVATINO | PACE PLLC

1101 S. Capital of Texas Hwy.

Building K, Suite 125

Austin, TX 78746

(512) 637-1581

slevatino@levatinopace.com

RACHANA CHHIN

TEXAS CATHOLIC

CONFERENCE OF BISHOPS

1600 N. Congress Ave., Suite B

Austin, TX 78701

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

STATEMENT OF INTEREST OF AMICI CURIAE...1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT. ............................................................... 2

I. Denying clergy access to their congregants at

the hour of death violates the freedom of the

Church ............................................................... 3

II. Under RLUIPA and the Free Exercise Clause,

TDCJ must provide Petitioner with access to

clergy in the death chamber ............................. 9

CONCLUSION .......................................................... 12

i

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Cutter v. Wilkinson, 544 U.S. 709 (2005)………passim

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 2006)…………………………… 11

Holt v. Hobbs, 574 U.S. 352 (2015)………………...10,11

Hosanna-Tabor Evangelical Lutheran Church and

School

vs.

Equal

Employment

Opportunity

Commission et al., 565 U.S. 171 (2012)………………...5

Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in North America, 344 U.S. 94

(1952)……………………….………………………………5

Marsh v. Chambers, 463 U.S. 783 (1983)………………6

Murphy v. Collier, 139 S. Ct. 1475 (2019)……………...2

iii

Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140

S. Ct. 2049 (2020)……………………………………….5-6

Overton v. Bazzetta, 539 U. S. 126 (2003)…………….12

School District of Abington Township, Pennsylvania,

et al. v. Schempp et al., 374 U.S. 203 (1963)……………6

Thomas v. Review Bd. of Ind. Employment Security

Div., 450 U. S. 707 (1981)…………………………...10-11

Town of Greece v. Galloway, 572 U.S. 565 (2015)……..6

Turner v. Safley, 482 U. S. 78 (1987)………………….11

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).10

Statutes:

42 U.S.C. § 2000cc-5(7)(A)……………………………...10

Bills:

H.B. 1579, 87th Tex. Leg. (2021)…………………………2

iv

S.B. 654, 87th Tex. Leg. (2021)…………………………..2

Other Authorities:

Catechism of the Catholic Church § 1013……………...7

Catechism of the Catholic Church § 1501……………...7

Catechism of the Catholic Church § 1502……………...7

Catechism of the Catholic Church § 1524……………...7

Catechism of the Catholic Church § 1525……………...7

Catechism of the Catholic Church § 1738……………...4

Catechism of the Catholic Church § 2299……………...7

1983 Code of Canon Law 1003 §-2………………………8

1983 Code of Canon Law §§ 921-922……………………8

v

1983 Code of Canon Law § 530, 3°………………………8

Compendium of the Social Doctrine of the Church §

403………………………………………………………..7-8

Holy Bible (James 5:14-15)………………………………9

Holy Bible (Luke 23: 42-43)…………………………......7

Holy Bible (Matthew 25: 36)………………………......2,8

Joseph Delany, “Preparation for Death” The Catholic

Encyclopedia, Vol 4, New York: Robert Appletone

Company…………………………………………………2-3

Magna Carta (1215 Edition)(Latin Translation to

English), Article 1……….………………………………..5

Second Vatican Council Declaration on Religious

Freedom (“Dignitatis Humanae”)………………………4

vi

Sir William Blackstone, Commentaries on the Laws of

England, 4 Chapter 28 …………………………………...5

STATEMENT OF INTEREST OF AMICI

CURIAE 1

The Texas Catholic Conference of Bishops

(“TCCB”) is an unincorporated association consisting

of the bishops of the 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

and advocates for the protection of human life from

conception to natural death. The United States

Conference of Catholic Bishops (“USCCB”) is a

nonprofit corporation whose members are the active

Catholic Bishops of the United States. The USCCB

advocates for and promotes the pastoral teaching of

the Roman Catholic Church (the “Church”) on diverse

issues, including the protection of human rights, and

the sanctity and dignity of human life. It often files

amicus curiae briefs in support of legal positions of

importance to the Church.

The Catholic Church in Texas has a long history of

ministering to the incarcerated, crime victims, and

their families. The TCCB regularly advocates for both

religious liberty and mercy and restorative justice for

prisoners, especially those on death row, before public

officials. And the broader Catholic community

responds to the needs of the incarcerated in numerous

ways, including through ex-inmate reintegration,

family counseling, drug and alcohol recovery, and

1 Pursuant to Supreme Court Rule 37.6, amici represents that this brief

was not authored in whole or in part by any party or counsel for any party.

No person or party other than amici, their members, or their counsel made

a monetary contribution to the preparation or submission of this brief. All

parties have consented to the filing of this brief.

1

2

relevantly here, correctional ministry. The chaplaincy

work of the Catholic Church is a key religious exercise

by which it fulfills its religious obligations to care for

prisoners’ personal and spiritual well-being. See Texas

Catholic Correctional Ministers: About Us, available

at https://txccm.org/about-us.

The TCCB has previously advocated for legislation

within Texas to ensure that volunteer and faith-based

chaplains can provide pastoral care to inmates,

including in the execution chamber. See, e.g., H.B.

1579 and S.B. 654, 87th Tex. Leg. (2021). Such

legislation has not been successful thus far, and as this

case illustrates, TDCJ continues to prohibit basic

aspects of chaplaincy—contact and vocal prayers—in

the execution chamber.

The TCCB and USCCB’s deep familiarity with the

history of the policy and religious liberty matters at

issue, and their unique perspective as leaders of a

religious community whose ministers attend to the

dying and the imprisoned, can assist the Court in

resolving the important religious liberty issues “in the

way that the claims require and deserve,” by giving

attention to the community’s right to minister

interwoven with the individual’s right to ministry.

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

J., dissenting).

INTRODUCTION AND SUMMARY OF THE ARGUMENT

This case addresses one of the oldest religious

freedom rights known to history and the Christian

tradition: the right of prisoners, including of those

about to be executed, to the comfort of clergy: “I was …

in prison and you came to me” (Matthew 25:35-36); See

also Joseph Delany, “Preparation for Death” The

3

Catholic Encyclopedia, Vol. 4, New York: Robert

Appletone

Company,

available

at

http://www.newadvent.org/cathen/04660c.htm.

This brief explains how this religious freedom right

is twofold. As highlighted by the briefing thus far, a

prisoner retains the right under the Free Exercise

Clause and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) to spiritual

guidance even in his incarceration—indeed, even at

his death. But further, religious entities retain an

independent First Amendment right to minister to

their congregants. TDCJ’s policy infringes both rights,

which should only be limited in rare circumstances.

Due regard for the rights of the church alongside

the rights of Mr. Ramirez will lead to the correct result

in this case. A substantial burden is imposed not only

on Mr. Ramirez’s free exercise, but on the free exercise

of his pastor—who is also exercising the freedom of the

Church as an entity—when TDCJ prohibits key

actions of ministry. And the blanket prohibitions here

cannot satisfy strict scrutiny where so many spiritual

advisors (priests, deacons, and others) – including

many of the Church’s own Catholic chaplains —have

regularly ministered in TDCJ and other facilities

without incident, including in the execution chamber

and in the specific manner requested by Ramirez.

ARGUMENT

I. DENYING CLERGY ACCESS TO THEIR

CONGREGANTS AT THE HOUR OF

DEATH VIOLATES THE FREEDOM OF

THE CHURCH.

Consistent with American constitutional law,

discussed below, Catholic Social Teaching recognizes

4

an inherent duality in the rights of religious freedom,

belonging in distinct nature to both individuals and

institutions. The most prominent modern statement of

these dual rights is in the Second Vatican Council

(“Council”) Declaration on Religious Freedom,

Dignitatis Humanae (“On the Dignity of the Human

Person”), which emphasizes the personal and

communal dimensions of religious freedom. With

respect to the former, the Council Fathers state:

[T]he human person has a right to religious

freedom … that all men are to be immune from

coercion on the part of individuals or of social

groups and of any human power, in such wise that

no one is to be forced to act in a manner contrary to

his own beliefs, whether privately or publicly,

whether alone or in association with others, within

due limits.

Dignitatis Humanae 2 § 1 (1965).

With respect to the latter, Dignitatis Humanae

explains, “The freedom of the Church is the

fundamental principle in what concerns the relations

between the Church and governments and the whole

civil order.” Id., 13 § 1. Furthermore, “a harmony

exists between the freedom of the Church and the

religious freedom which is to be recognized as the right

of all men and communities and sanctioned by

constitutional law.” Id. at § 4. To be sure, the Church

also recognizes that religious freedom is not absolute

but must be circumscribed within certain juridical

limits in order to promote the common good and public

order. See Catechism of the Catholic Church § 1738.

But TDCJ’s restrictions challenged here exceed those

limits.

5

This concept of the “freedom of the Church,” or

libertas ecclesiae, has long been recognized in English

common-law and part of our own constitutional

traditions going back to the 13th century Magna Carta.

Magna Carta, Article 1 (1215 Edition) (Latin

translation

from

English)

(available

at

https://www.bl.uk/magna-carta/articles/magna-cartaenglish-translation). So strong was this respect for the

Church that for many centuries extending up to the

American Founding, there was a so-called legal fiction

of certain exemptions granted to the church known as

the “benefit of the clergy” (“privilegium clericale”).

Under this privilege, later extended to laypersons,

clerics and other ecclesiastical ministers could plead

for leniency in secular courts and subject themselves

to ecclesiastical jurisdiction. See generally Sir William

Blackstone, 4 Commentaries on the Laws of England,

Chapter 28.

In the modern constitutional regime, this Court

has long recognized the right of the church to

determine “free from state interference, matters of

church government as well as those of faith and

doctrine.” Hosanna-Tabor Evangelical Lutheran

Church and Sch. v. EEOC, 565 U.S. 171, 186 (2012)

(quoting Kedroff v. Saint Nicholas Cathedral of

Russian Orthodox Church in North America, 344 U.S.

94, 116 (1952)). This Court has further recognized

“[t]he church must be free to choose those who will

guide it on its way” without intrusion from secular

courts. Id. at 196. Such a protection has important

practical import; for one thing, it ensures the “church’s

independent authority” over matters such as

“preaching, teaching, and counseling.” Our Lady of

6

Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,

2060-61 (2020).

Respect for the role of spiritual guidance, and for

the distinctive role of chaplains, pervades the

decisions of this Court and the writings of its Justices.

For example, the Court has recognized that legislative

chaplaincy “accommodate[s] the spiritual needs of

lawmakers and connect[s] them to a tradition dating

to the time of the Framers.” Town of Greece v.

Galloway, 572 U.S. 565, 587-88 (2015) (discussing

Marsh v. Chambers, 463 U.S. 783 (1983)). And such a

role is particularly crucial where free access to

spiritual guidance is unavailable. “Since government

has deprived [members of the Armed Forces and

prisoners] of the opportunity to practice their faith at

places of their choice . . . government may, in order to

avoid infringing the free exercise guarantees, provide

substitutes where it requires such persons to be.”

School District of Abington Township, Pennsylvania,

et al. v. Schempp et al., 374 U.S. 203, 297-298 (1963)

(Brennan, J., concurring). Justice Brennan further

observed it would evince “hostility” toward religion if

the state refused “draft exemptions for ministers and

conscientious objectors” or to “provide chaplains and

places of worship for prisoners and soldiers cut off by

the State from all civilian opportunities for public

communion.” Id. at 299.

The key spiritual guidance provided by the church

is of particularly grave importance at the moment of

death, and the formation and communication of that

guidance

is

constitutionally

protected

from

government interference. The pre-eminent example of

this is the Bible’s account of the repentant “Good

Thief” who asked Christ for forgiveness on the Cross:

7

“Jesus, remember me when you come into your

kingdom. He replied to him, ‘Amen, I say to you, today

you will be with me in Paradise.’” (Luke 23:42-43).

Taking after this act of charity, 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 §§ 1524-1525 (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 of life 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 prayer seeks the Blessed Virgin Mary’s

intercession 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.” These are but a few

examples of how Catholics honor the church’s precept

that “the dying should be given attention and care to

help them live their last moments in dignity and

peace.” See Catechism § 2299.

In addition to the Church’s general obligation to

minister to the souls of the dying, the Compendium of

the Social Doctrine of the Church also recognizes the

unique obligation of attending to the dignity and souls

8

of the incarcerated, and the important role that

chaplains play in their restoration and rehabilitation:

In this regard, the activity that prison chaplains are

called to undertake is important, not only in the

specifically religious dimension of this activity but

also in defence of the dignity of those detained.

Unfortunately, the conditions under which

prisoners serve their time do not always foster

respect for their dignity; and often, prisons become

places where new crimes are committed.

Nonetheless, the environment of penal institutions

offers a privileged forum for bearing witness once

more to Christian concern for social issues: “I was

… in prison and you came to me” (Mt 25:35-36).

Compendium § 403 (emphasis added).

Finally, for both incarcerated and non-incarcerated

believers, the Code of Canon Law of the Catholic

Church treats attending to the dying as both a “duty

and [a] right” for “[a]ll priests to whom the care of

souls has been entrusted.” It is especially entrusted to

those who hold the office of pastor. 1983 Code c.1003 §

2 (anointing of the sick); cf. 1983 Code c.921-22

(discussing Viaticum for “[t]he Christian faithful who

are in danger of death from any cause”), cf. 1983 Code

c.530, 3° (identifying particular prerogatives of a

parish pastor). And as discussed above, the ministry

has often persisted, supported by sound theology, to

the “hour of our death.”

While not all religious traditions have as formal a

structure or as well-developed a body of church law as

the Catholic Church, it is unsurprising that the

broader Christian tradition to which Mr. Ramirez’s

pastor belongs shares a commitment to attending to

9

the prisoner and the dying alike, and particularly

when they are paired. The guidance from the Gospel

of Matthew discussed above, and exhortations found

elsewhere in Holy Scripture, is common to these

traditions. See James 5:14-15 (“Is any among you sick?

Let him call for the presbyters of the Church, and let

them pray over him, anointing him with oil in the

name of the Lord; and the prayer of faith will save the

sick man, and the Lord will raise him up; and if he has

committed sins, he will be forgiven.”)

In short, this case implicates neither just the

personal religious exercise of Mr. Ramirez or others in

his position, nor just the personal religious exercise of

Pastor Moore. Rather, this case implicates a core and

obligatory ministry of the Catholic Church and (at

least) many other Christian churches, as well as

people of other faith traditions. By denying chaplains

the ability to personally and effectively minister to

their death-row church members in their final

moments—including through the laying on of hands

and the vocalization of prayers in the execution

chamber – they impermissibly infringe upon the First

Amendment freedoms of religious organizations and

their ministers.

II. UNDER RLUIPA AND THE FREE

EXERCISE

CLAUSE,

TDCJ

MUST

PROVIDE PETITIONER WITH ACCESS

TO CLERGY IN THE DEATH CHAMBER.

As Mr. Ramirez and other amici have elaborated,

extensive history and case law demonstrate that the

First Amendment and RLUIPA protect the practices

at issue here, and underscore why strict scrutiny

should apply. The TCCB and USCCB add only that

10

just as the rights here are twofold, the substantial

burden is as well.

Here, it is helpful to consider this Court’s

elaboration of substantial burdens in the RLUIPA

context. In Cutter v. Wilkinson, this Court recognized

that, because prisons exercise “control” that is

“severely disabling to private religious exercise,”

denying permission for a practice produces

“government-created burdens on private religious

exercise.” 544 U.S. 709, 720 (2005); see Holt v. Hobbs,

574 U.S. 352, 361-62 (2015) (because exercise was

“grounded in a sincerely held religious belief,” the

enforced prohibition “substantially burden[ed] his

religious exercise”); Yellowbear v. Lampert, 741 F.3d

48, 56 (10th Cir. 2014) (Gorsuch, J.) (“flatly

prohibiting” religious exercise creates a substantial

burden).

This same principle extends to correctional

ministry. If Mr. Ramirez were dying in a home or a

hospital, there would be no impediment to his pastor

praying aloud over him or holding his hand as he dies.

As this Court has previously recognized, “[T]he

‘exercise of religion’ often involves not only belief and

profession but the performance of … physical acts

[such as] assembling with others for a worship service

[or] participating in sacramental use of bread and

wine … .” Wilkinson, 544 U.S., at 720 (citations

omitted). Even apart from liturgical-sacramental acts

in a church or a pastoral care setting, Congress

determined that RLUIPA’s protections applies to

“any” exercise of religion - regardless of whether it is

compelled by, or central to, a system of religious beliefs

and “not just to those … which are shared by all the

members of a religious sect.” §2000cc–5(7)(A); Thomas

11

v. Review Bd. of Indiana Employment Security Div.,

450 U. S. 707, 715–716 (1981). But the “control”

exercised by TDCJ here—including actions to enforce

that control or punish deviations from its rule—is

“severely disabling to [the] private religious exercise”

of the minister and the religious community that

minister represents. Wilkinson, supra, at 721. The

First Amendment protects this corresponding right of

the church to minister to incarcerated persons.

Additionally, even if security and operational

concerns are asserted by the State, that deference is

not determinative. TDCJ’s practice does not satisfy

strict scrutiny, given the lengthy history of chaplains

ministering in the death chamber, including with

audible prayer and touch, without incident or

disruption. Catholic chaplains and other clergy have

contributed honorably to that solace and should be

permitted to continue to do so. RLUIPA still “makes

clear that it is the obligation of the courts to consider

whether exceptions are required under the test set

forth by Congress” and apply its rigorous standard in

order to not impose a substantial burden without

using the least restrictive means. Hobbs, 574 U.S., at

___ (slip op., at 10) (citing Gonzales v. O Centro

Espírita Beneficente União do Vegetal, 546 U. S. 418,

434 (2006)).

Further, even if the Court were to apply the lesser

standard from Turner v. Safley, this same history

would favor the rights of Mr. Ramirez and like

prisoners, and the corresponding rights of the church.

Cf. Holt, 574 U.S. at 361-62 (comparing the “greater

protection” of RLUIPA with the Turner factors for

assessing burdens on “practicing religion”). History

strongly undercuts both the prohibition’s connection to

12

the government’s concerns for safety, and the

likelihood that the requested exercise would have any

negative impact on prison resources or officials. And

unlike in Overton v. Bazzetta, there are no

“alternatives” “of sufficient utility” for addressing the

specific concern here—personal, meaningful spiritual

guidance at the very moment life ends. 539 U.S. 126,

135 (2003).

To be clear, permitting Ramirez’s pastor to provide

the spiritual assistance that Ramirez has requested

would not render his execution a just act. The Bishops

of the United States, including the Texas Bishops,

have long abhorred the practice of state-sanctioned

executions of human beings. 2 Representing a final,

irrevocable termination of a gift from God – human life

– the bishops of the TCCB and USCCB view the death

penalty as a grave violation of human dignity. It

represents a judgment by fallible human beings that a

person is beyond redemption. That is a judgment the

Catholic Church rejects. The state should act with

justice by sparing Ramirez’s life. If it will not, it should

allow him to seek the mercy of God at the moment of

his death.

CONCLUSION

For the foregoing reasons, the decision below

should be reversed, with instructions to grant the stay

of execution, or alternatively, order TDCJ to provide

2 See, e.g., Brief for the United States Conference of Catholic Bishops,

et al. as Amici Curiae Supporting Petitioner, Dailey v. Fla., 141 S. Ct. 689

(2020) (No. 19-7309); Brief for the Texas Catholic Conference of Bishops

as Amicus Curiae Supporting Petitioner, Gutierrez v. Luis V. Saenz, et al.,

590 U.S. _____ (2020) (No. 19-8695/19A1052).

13

Ramirez with personal access to his pastor within the

execution chamber.

Respectfully submitted,

ANTHONY R. PICARELLO, JR.

JEFFREY HUNTER MOON

MICHAEL F. MOSES

DANIEL E. BALSERAK

U.S. CONFERENCE

OF CATHOLIC BISHOPS

3211 Fourth Street, NE

Washington, DC, 20017

RACHANA CHHIN

TEXAS CATHOLIC

CONFERENCE OF BISHOPS

1600 N. Congress Ave., Suite B

Austin, TX 78701

STEVEN LEVATINO

Counsel of Record

LEVATINO | PACE PLLC

1101 S. Capital of Texas Hwy.

Building K, Suite 125

Austin, TX 78746

(512) 637-1581

slevatino@levatinopace.com

Counsel for Amici Curiae