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 H. RAMIREZ,

v.

BRYAN COLLIER, ET AL.,

___________

Petitioner,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

___________

BRIEF OF ALLIANCE DEFENDING FREEDOM

AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

___________

GORDON D. TODD*

WILLIAM R. LEVI

CHRISTOPHER S. ROSS

JOSEPH V. CONIGLIO

MATTHEW H. SIMPSON†

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

Counsel for Amici Curiae

September 27, 2021

* Counsel of Record

[Additional information listed on inside cover.]

† Mr. Simpson is admitted only in Virginia and is

practicing law in the District of Columbia pending

admission to the D.C. bar and under the supervision

of principals of the firm who are members in good

standing of the D.C. bar.

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND ARGUMENT

SUMMARY ........................................................

2

ARGUMENT .........................................................

5

I. THE COURTS BELOW ERRED BY SECONDGUESSING WHETHER TDCJ’S POLICY SUBSTANTIALLY BURDENS MR. RAMIREZ’S

SINCERELY HELD RELIGIOUS BELIEFS .....

5

A. There appears to be no dispute that Mr. Ramirez’s religious beliefs are sincerely held ...

5

B. The substantial burden analysis does not

change when religious exercise occurs in

an execution chamber .................................

6

C. TDCJ’s policy imposes a substantial

burden on Mr. Ramirez’s exercise of his

religious liberty ...........................................

8

II. TEXAS HAS NOT SATISFIED ITS BURDEN

TO DEMONSTRATE THAT ITS BAN ON

MINISTERIAL ACTIVITY IN THE EXECUTION CHAMBER IS THE LEAST RESTRICTIVE MEANS FOR FULFILLING ITS

INTEREST IN PRISON SECURITY ...............

11

A. Texas failed to offer sufficient proof to

meet its burden under RLUIPA’s “exceptionally demanding” standard ....................

11

B. It appears that TDCJ failed to seriously

consider or attempt alternative policies.....

17

CONCLUSION .....................................................

21

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ................................... 8, 9, 10

Chance v. Tex. Dep’t of Crim. Just.,

730 F.3d 404 (5th Cir. 2013) ....................... 13, 14

Couch v. Jabe,

679 F.3d 197 (4th Cir. 2012) ............................. 18

Cutter v. Wilkinson,

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

Dunn v. Smith,

141 S. Ct. 725 (2021) ......................... 8, 11, 13, 15

Emp’t Div., Dep’t of Hum. Res. v. Smith,

494 U.S. 872 (1990) ............................................. 9

Gutierrez v. Saenz,

141 S. Ct. 127 (2020) ........................................... 7

Gutierrez v. Saenz,

818 F. App’x 309 (5th Cir. 2020),

vacated, 141 S. Ct. 1260 (2021) .......................... 7

Haight v. Thompson,

763 F.3d 554 (6th Cir. 2014) ......................... 6, 10

Holt v. Hobbs,

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

McCullen v. Coakley,

573 U.S. 464 (2014) ........................................... 19

Murphy v. Collier,

139 S. Ct. 1475 (2019) ................................... 6, 12

Ray v. Comm’r, Ala. Dep’t of Corr.,

915 F.3d 689 (11th Cir. 2019),

vacated sub nom. Dunn v. Ray, 139

S. Ct. 661 (2019) ................................................ 19

iii

TABLE OF AUTHORITIES—continued

Page

Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) ............................... 17

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) ......................................... 16

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007)............................... 17

Williams v. Annucci,

895 F.3d 180 (2d Cir. 2018)............................... 18

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ................... 9, 15, 18

STATUTES

42 U.S.C. § 2000cc-1 ........................................... 3, 11

Religious Land Use and Institutionalized

Persons Act of 2000, Pub. L. No. 106-274,

114 Stat. 803........................................................ 1

Religious Freedom Restoration Act of 1993,

Pub. L. No. 103-141, 107 Stat. 1488 ................... 1

LEGISLATIVE HISTORY

146 Cong. Rec. S7774 (daily ed. July

27, 2000) ...................................................... 16, 17

OTHER AUTHORITY

2 Timothy 4:2 ............................................................ 5

INTEREST OF AMICUS CURIAE1

Alliance Defending Freedom is a non-profit, public

interest legal organization that provides strategic

planning, training, funding, and direct litigation

services to protect religious civil liberties and family

values.

Since its founding in 1994, Alliance

Defending Freedom has played a role, either directly

or indirectly, in dozens of cases before this Court,

numerous cases before federal courts of appeal, and

hundreds of cases before federal and state courts

across the country, as well as tribunals throughout

the world.

Alliance Defending Freedom regularly litigates to

protect the religious freedoms of individuals and

churches whose religious exercise is burdened by

laws, regulations, and governmental practices.

Alliance Defending Freedom litigates issues arising

under the federal and state constitutions, as well as

statutes such as the Religious Land Use and

Institutionalized Persons Act of 2000, Pub. L. No.

106-274, 114 Stat. 803 (“RLUIPA”) and the Religious

Freedom Restoration Act of 1993, Pub. L. No. 103141, 107 Stat. 1488 (“RFRA”). Alliance Defending

Freedom has strong interests in ensuring that these

laws, which are designed to alleviate governmentimposed burdens on religion, are fully and robustly

applied.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part, and that no entity or person aside from counsel for amicus

curiae made any monetary contribution toward the preparation

and submission of this brief. Pursuant to Supreme Court Rule

37.2, amicus curiae states that counsel for all parties have filed

letters granting blanket consent to the filing of amicus briefs.

2

INTRODUCTION AND ARGUMENT SUMMARY

The potential for conflict between prison

administration and the accommodation of religious

exercise reaches its zenith in capital cases. But

RLUIPA calls for strict scrutiny of governmental

policies that substantially burden religious exercise,

and even the execution chamber is not exempt from

that demanding level of review.

The Texas Department of Criminal Justice

(“TDCJ”) seeks to do here what RLUIPA proscribes.

Petitioner John Henry Ramirez is a Christian who

says that his faith demands that his pastor pray by

his side when the State of Texas executes him.

Assuming he is sincere, TDCJ must accommodate

that practice under RLUIPA. But the courts below

sanctioned a misapplication of RLUIPA that guts its

protections. Because Mr. Ramirez’s appeal to God in

his final moments demands respect, this Court

should reverse the Fifth Circuit and provide guidance

to lower courts on the application of RLUIPA in this

sensitive area.

Congress enacted RLUIPA “to provide very broad

protection for religious liberty.” Holt v. Hobbs, 574

U.S. 352, 356 (2015) (quoting Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 693 (2014)). The law

includes robust protections in the land-use and prison

contexts. The concerns animating the bill’s passage

included evidence presented to Congress over three

years’ worth of hearings, which showed “that

‘frivolous or arbitrary’ barriers” often “impede[]

institutionalized persons’ religious exercise.” Cutter

v. Wilkinson, 544 U.S. 709, 716 (2005). Accordingly,

Congress

enacted

RLUIPA

to

“protect[]

institutionalized persons who are unable freely to

attend to their religious needs and are therefore

dependent on the government’s permission and

3

accommodation for exercise of their religion.” Id. at

721.

RLUIPA provides that “[n]o government shall

impose a substantial burden on the religious exercise

of a person residing in or confined to an institution”

unless “the government demonstrates that imposition

of the burden on that person—(1) is in furtherance of

a compelling governmental interest; and (2) is the

least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1(a). In

other words, Congress enacted a regime calling for

strict scrutiny of governmental policies and practices

that burden religious exercise.

To ensure the

statute’s goals are met, Congress instructed courts to

analyze petitioners’ claims using the stringent leastrestrictive-means standard.

As this Court has explained, RLUIPA offers

“expansive protection for religious liberty.” Holt, 574

U.S. at 358. The statute defines “‘religious exercise’

capaciously to include ‘any exercise of religion,

whether or not compelled by, or central to, a system

of religious belief.’” Id. (quoting § 2000cc-5(7)(A)).

The statue also instructs courts to construe its

provisions broadly to protect religious exercise, and it

provides that successful application of its terms “may

require a government to incur expenses in its own

operations to avoid imposing a substantial burden on

religious exercise.” Id. (quoting § 2000cc-3(c)).

These expansive terms protect Mr. Ramirez.

Assuming the sincerity of his beliefs, the courts below

ignored the foundational principal animating

RLUIPA—to provide “expansive protection for

religious liberty.” Id. As a result, the courts below

gave short shrift to the burden that TDCJ’s policy

imposes on Mr. Ramirez’s beliefs.

4

Compounding that error, the courts below failed to

hold TDCJ to its statutory burden of proof of

demonstrating that its broad ban on ministerial

activity in the execution chamber was the least

restrictive means of advancing its interest in prison

security. Among other things, the lower courts failed

to demand that TDCJ demonstrate that it had

considered or attempted alternative methods that

would advance its interest. Although Congress was

“mindful of the urgency of discipline, order, safety,

and security in penal institutions” when it passed

RLUIPA, Cutter, 544 U.S. at 723, it did not condone

the sort of blind deference the courts below gave to

TDCJ here. See Holt, 574 U.S. at 364.

Amicus respectfully submits this brief to highlight

several aspects of the RLUIPA analysis relevant to

Mr. Ramirez’s claim specifically and religious liberty

cases more generally. While the Court’s analysis of

Mr. Ramirez’s claims may be “context specific,” this

appeal implicates RLUIPA’s mode of application more

broadly.

Requiring governments—whether state,

local, or federal—to satisfy RLUIPA’s strict standard

wherever it applies serves as an important bulwark

against encroachment on religious exercise for

persons of all faiths.

5

ARGUMENT

I. THE

COURTS

BELOW

ERRED

BY

SECOND-GUESSING WHETHER TDCJ’S

POLICY SUBSTANTIALLY BURDENS MR.

RAMIREZ’S SINCERELY HELD RELIGIOUS BELIEFS.

A. There appears to be no dispute that Mr.

Ramirez’s religious beliefs are sincerely

held.

The sincerity of Mr. Ramirez’s religious beliefs as to

the ministry he wishes to receive from his pastor as

he departs from this life does not appear to be in

dispute. See Pet. App. 4 (Owens, C.J., concurring) (“I

do not doubt the sincerity of Ramirez’s religious

beliefs . . . .”). The practices he raises thus come

within RLUIPA’s “expansive protection for religious

liberty.” Holt, 574 U.S. at 358.

Spoken prayer from a pastor to his people is

fundamental to Scripture and Christian practice.

See, e.g., 2 Timothy 4:2 (“Preach the word . . . .”).

Such a practice does not lose its religious

significance in the context of end-of-life pastoral care.

To the contrary, it is ubiquitous in end-of-life rituals

practiced for centuries across various Christian

denominations, ranging from the Catholic spoken

liturgy of the Viaticum, to Protestant traditions

deeply rooted in this nation’s history. See generally

Brief Amicus Curiae of The Becket Fund for Religious

Liberty in Support of Petitioner, Ramirez v. Collier,

No. 21A33 (U.S. Sept. 7, 2021).

6

B. The substantial burden analysis does

not change when religious exercise

occurs in an execution chamber.

Prohibiting Mr. Ramirez’s exercise of these

sincerely held religious beliefs constitutes a

substantial burden under RLUIPA because it forbids

the very religious practice he seeks. As this Court

has made clear, policies substantially burden an

inmate’s religious exercise when they require him “to

‘engage in conduct that seriously violates [his]

religious beliefs.’” Holt, 574 U.S. at 361 (alteration in

original) (quoting Hobby Lobby, 573 U.S. at 720).

Whether a policy forbids religious exercise outright

or requires conduct that violates a religious belief is a

distinction without a difference. “[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 . . . .’” Cutter, 544 U.S. at 720 (alterations and

omissions in original) (quoting Emp’t Div., Dep’t of

Hum. Res. v. Smith, 494 U.S. 872, 877 (1990)). As a

result, “[w]hen prison officials . . . effectively bar [an

adherent’s] sincere faith-based conduct,”—i.e., the

practice of receiving end-of-life ministry—“they

necessarily place a substantial burden on it.” Haight

v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014). And

because prisoners are necessarily “dependent on the

government’s permission and accommodation for

exercise of their religion,” RLUIPA’s capacious terms

apply here. Cutter, 544 U.S. at 721.

Moreover, this Court’s recent actions recognize that

RLUIPA should extend to inmates who desire

support from their spiritual advisors in the execution

chamber. See Murphy v. Collier, 139 S. Ct. 1475

7

(2019) (mem.) (granting application for stay of

execution).

Similarly, in Gutierrez v. Saenz, the Court granted

a stay of execution and ultimately vacated the denial

of a stay in a different case arising out of the Fifth

Circuit. See 141 S. Ct. 127 (2020) (mem.); 141 S. Ct.

1260 (2021) (mem.). There, the Fifth Circuit had held

that Texas’s then-operative policy of prohibiting a

spiritual advisor in the execution chamber entirely

did not rise to the level of a substantial burden.

Gutierrez v. Saenz, 818 F. App’x 309, 314–15 (5th Cir.

2020) (per curiam), vacated, 141 S. Ct. 1260 (2021)

(mem.).

This Court vacated the judgment and

remanded to the district court to “promptly

determine, based on whatever evidence the parties

provide, whether serious security problems would

result if a prisoner facing execution is permitted to

choose the spiritual adviser the prisoner wishes to

have in his immediate presence during the

execution.” Gutierrez, 141 S. Ct. at 128.

By directing the district court to evaluate whether

the policy was the least restrictive alternative to

accomplish the state’s legitimate security interest,

the Court necessarily presumed that the policy at

issue imposed a substantial burden on Gutierrez’s

religious liberty.

Cf. Pet. App. 11 (Dennis, J.,

dissenting) (reasoning that “the grant of a stay and

the scope of the Court’s directive to the district court

strongly suggests that the Court determined that

Gutierrez had satisfied his initial burden of showing

a substantial burden on his religious exercise”).

In Dunn v. Smith, this Court again considered

whether a state could exclude clergy members from

the execution chamber and denied a motion to vacate

an injunction prohibiting an inmate from being

executed without having his minister present in the

8

execution chamber.

Justice Kagan’s concurring

statement emphasized that the inmate understood

that having his minister in the execution chamber

was “integral to [his] faith” and “essential to [his]

spiritual search for redemption.” 141 S. Ct. 725, 725

(2021) (mem.) (Kagan, J., concurring in denial of

application to vacate injunction) (alterations in

original). The concurrence concluded that an inmate

has a right to have a pastor “by his side” during an

execution if he so chooses. Id. at 726.

Taken together, Murphy, Gutierrez, and Smith

recognize that governmental policies do not somehow

cease creating substantial burdens on religious

exercise simply because the policy takes effect within

the execution chamber. Moreover, at no point did the

Court second-guess whether these policies are

burdens on religious exercise at all. The RLUIPA

analysis animating Murphy and other recent cases

applies here too.

C. TDCJ’s policy imposes a substantial

burden on Mr. Ramirez’s exercise of his

religious liberty.

To avoid the conclusion that TDCJ’s policy

substantially burdens Mr. Ramirez, the lower courts

speculate that TDCJ can offer accommodations that

will adequately allow Mr. Ramirez to seek his

pastor’s support before his execution. But their

reasoning impermissibly questions the basis of Mr.

Ramirez’s beliefs and attempts to rewrite those

beliefs for him.

This Court has made clear that courts should avoid

second-guessing a belief’s centrality or essentiality to

the claimant. See Hobby Lobby, 573 U.S. at 725

(holding that “it is not for us to say [whether]

religious beliefs are mistaken or insubstantial”)

9

(emphasis added). In other words, it is not for courts

to “tell [religious adherents] that their beliefs are

flawed.” Id. at 724; see also Smith, 494 U.S. at 887

(“Repeatedly and in many different contexts, we have

warned that courts must not presume to

determine . . . the plausibility of a religious claim.”).

As then-Judge Gorsuch explained, the RLUIPA

inquiry “isn’t into the merit of the plaintiff’s religious

beliefs or the relative importance of the religious

exercise: [the Court] can’t interpret his religion for

him.” Yellowbear v. Lampert, 741 F.3d 48, 55 (10th

Cir. 2014). “Instead,” he explained, “the inquiry

focuses only on the coercive impact of the

government’s actions.” Id. (emphasis added).

Here, however, the courts below would upend these

principles. First, in the decision affirmed by the Fifth

Circuit in a per curiam opinion, the district court

charted a new—but flawed—course to conclude that

TDCJ had offered satisfactory alternatives to Mr.

Ramirez. See Pet. App. 21–22. As an initial matter,

it is improper for a district court to question whether

the activities that are permissible under TDCJ’s

policy “accommodate Ramirez’s religious needs.” Id.

at 22. But even if it were permissible, the district

court committed the fallacy of composition by

reasoning that the whole of Mr. Ramirez’s religious

belief is not substantially burdened by TDCJ’s policy

because both parts of his beliefs can be

accommodated separately—that is, because Mr.

Ramirez may both (1) pray aloud with his pastor

before he enters the execution chamber, and (2) have

his pastor stand in his presence in the execution

chamber.

But that reasoning is no more valid than saying

that a person may (1) pray while he is at home, and

(2) go to church but not pray while there. The district

10

court’s deconstruction and misconstruing of Mr.

Ramirez’s sincerely held religious belief thus fatally

undermines its finding that TDCJ’s policy does not

substantially burden that right, and the Fifth Circuit

erred in affirming that decision.

Second, in opposing certiorari in this Court, TDCJ

characterized Mr. Ramirez’s beliefs as mere

“accommodations believed to enhance [his] blessing.”

BIO at 20. But RLUIPA protects “any exercise of

religion, whether or not compelled by, or central to, a

system of religious belief.” Hobby Lobby, 573 U.S. at

695–96 (emphases added) (quoting 42 U.S.C.

§ 2000cc-5(7)(A)). Any distinction between incidental

and non-incidental infringements of religious liberty

is thus without any legal difference in this context.

Third, TDCJ says that its policy neither “forces

[Ramirez] to do what his religious [tenets] forbid, nor

pressures him to modify his religious behavior.” BIO

at 20. But religious belief is no less worthy of

protection based on the mere accident that Mr.

Ramirez is merely forbearing from, rather than

engaging in, conduct that implicates his religious

beliefs. Cf. Haight, 763 F.3d at 565. And here again,

the distinction is without any difference: the state is

asking Mr. Ramirez to enter the execution chamber

knowing that his pastor will not be praying by his

side as the state puts him to death. At bottom, the

lower courts’ rewriting of Mr. Ramirez’s beliefs

distorts the substantial-burden analysis by ignoring

that TDCJ’s policy will in fact require him to “engage

in conduct that seriously violates [his] religious

beliefs,” Holt, 574 U.S. at 361, simply because he is

“dependent on the government’s permission and

accommodation for [the] exercise of [his] religion,”

Cutter, 544 U.S. at 721.

11

II. TEXAS HAS NOT SATISFIED ITS BURDEN

TO DEMONSTRATE THAT ITS BAN ON

MINISTERIAL ACTIVITY IN THE EXECUTION CHAMBER IS THE LEAST RESTRICTIVE MEANS FOR FULFILLING ITS

INTEREST IN PRISON SECURITY.

A. Texas failed to offer sufficient proof to

meet its burden under RLUIPA’s

“exceptionally demanding” standard.

1. Although Texas’s execution protocol allows a

spiritual advisor in the execution chamber, nothing in

that protocol speaks to whether the spiritual advisor

may or may not speak prayers, sing hymns, or

provide any other form of end-of-life ministry or

comfort. The protocol is simply silent on this point.

Instead, correspondence from TDCJ’s general counsel

bars the religious comfort Mr. Ramirez seeks.

Responding to an inquiry whether Mr. Ramirez’s

pastor must remain silent during the execution, the

general counsel stated that “[a]t this time, the TDCJ

does not allow the spiritual advisor to pray out loud

with the inmate once inside the execution chamber.”

Letter from Kristen Worman, Gen. Counsel, TDCJ, to

Eric Allen (Aug. 21, 2021) (Dkt. 12, Ex. 7, at 66 (PDF

page)).

After Mr. Ramirez challenged that policy under

RLUIPA and established the substantial burden it

placed on his religious exercise, Texas bore the

burden to establish that (1) it had a compelling

interest in that restrictive policy and (2) the

restriction was the least restrictive means of

advancing that policy. See 42 U.S.C. § 2000cc-1(a);

Holt, 574 U.S. at 362. This is an “exceptionally

demanding” standard, Holt, 574 U.S. at 364–65, and

“sets a high bar for [TDCJ] to clear,” Dunn, 141 S. Ct.

at 725 (Kagan, J., concurring in denial of application

12

to vacate injunction).

Under RLUIPA’s strictscrutiny analysis, TDCJ must “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

362–63 (quoting Hobby Lobby, 573 U.S. at 726).

TDCJ falls short of RLUIPA’s high bar because it

cannot justify its policy as the least restrictive means

for advancing prison safety in the context of Mr.

Ramirez’s execution. In the proceedings below, TDCJ

did not argue that it has tried less restrictive

measures and found them inadequate to advance

TDCJ’s purposes. E.g., Pet. App. 22. (TDCJ merely

asserted a compelling interest in “minimizing risk

and maintaining order during the execution

procedure.”). While there is little dispute that “TDCJ

has a compelling interest in maintaining an orderly,

safe, and effective process when carrying out an

irrevocable, and emotionally charged, procedure,” id.

at 6; cf. Murphy, 139 S. Ct. at 1475 (Kavanaugh, J.,

concurring in grant of application for stay), TDCJ has

not proved that it has tried and discarded less

restrictive means in advancing that interest. See

Holt, 574 U.S. at 362–63. It has not.

As Judge Dennis pointed out in dissent below,

TDCJ “has not met [the] demanding and specific

burden” required by RLUIPA. Pet. App. 14 (Dennis,

J., dissenting). Aside from the general counsel’s

email categorically denying Mr. Ramirez’s request for

pastoral care as his sentence is carried out, there is

no record evidence supporting the state’s policy vis-àvis less restrictive policies.

Without such proof, courts cannot “scrutinize the

asserted harm of granting specific exemptions to

particular religious claimants and . . . look to the

13

marginal interest in enforcing the challenged

government action in that particular context.’” Holt,

574 U.S. at 363 (cleaned up) (quoting Hobby Lobby,

573 U.S. at 726–27). In Holt, for example, a Muslim

prisoner challenged a prison’s grooming policy, which

proscribed his growing a beard according to his

religious practice. See id. at 355–56, 359. The prison

asserted a security interest in limiting contraband in

prisons but could not identify any instances where a

prisoner had actually hidden contraband in his beard.

See id. at 359. As a result, this Court found the

state’s argument “hard to take seriously.” Id. at 363.

Here, TDCJ has not explained or even attempted to

explain how audible prayers or Bible reading would

disrupt an execution, much less that such actions

have ever disrupted an execution. As noted in the

Dunn concurrence, there is no evidence to suggest

that “the presence of a clergy member (whether stateappointed or independent) [has] disturbed an

execution.” 141 S. Ct. at 726 (Kagan, J., concurring

in denial of application to vacate injunction). TDCJ’s

arguments to the contrary “simply presume that

every clergy member will be untrustworthy.” Id.

That falls short of RLUIPA’s demand that the

government establish how this inmate’s religious

practices might burden this particular proceeding if

no accommodation is offered.

Indeed, the Fifth Circuit has previously recognized

that “speculative” arguments “without record

support” do not pass RLUIPA muster. Chance v. Tex.

Dep’t of Crim. Just., 730 F.3d 404, 418 (5th Cir. 2013)

(“[W]e have consistently tested the prison’s asserted

interests with regard to the risks and costs of the

specific accommodation being sought.”). That is,

RLUIPA requires a fact-intensive, case-by-case

analysis to ensure that the government meets its

14

narrow-tailoring requirement. See id. at 418 & n.15

(collecting cases). The failure of the courts below to

hold TDCJ to the same standard here requires

reversal.

TDCJ’s references to the district court’s order on

remand from this Court in Gutierrez do not change

the analysis. E.g., BIO at 25–26. In Gutierrez, the

district court concluded “that the extensive evidence

submitted by the Parties does not demonstrate that

serious security concerns would result from allowing

inmates the assistance of a chosen spiritual advisor

in their final moments.” Order at 29, Gutierrez v.

Saenz, No. 1:19-cv-00185 (S.D. Tex. Nov. 24, 2020),

ECF No. 124 (“Gutierrez Order”). Any analysis

beyond that TDCJ cites in its favor runs into the

problem that the court there was analyzing Mr.

Gutierrez’s claims, not Mr. Ramirez’s, and RLUIPA

demands a to-the-person analysis. Holt, 574 U.S. at

362.

Referencing that order does not pass muster for

another reason.

The district court examined a

Federal Bureau of Prisons (“BOP”) memorandum

concerning an outside spiritual advisor who would be

present for an execution. The memo provided that

“[a]ny disruptive physical or verbal behavior will

result in her immediate removal from the room for

the remainder of the procedure.” Gutierrez Order at

13. TDCJ characterizes this memo as explaining “nocontact and verbal restrictions placed on [a] spiritual

advisor during execution” by BOP. BIO at 25–26.

But such a restriction does not follow from the

language quoted in the Gutierrez order.

TDCJ

suggests that BOP in fact bars verbal prayers, rather

than only disruptive verbal prayers. Such a factual

distinction is one that should be raised and resolved

15

by a fact-finder and further counsels in favor of

vacating and remanding to the lower courts.

2. The courts below overlooked this problem by

according excessive deference to TDCJ’s asserted

interests.

As this Court explained in Holt,

“RLUIPA . . . does not permit such unquestioning

deference.” 574 U.S. at 364. There, the lower courts

had concluded “that they were bound to defer to the

Department’s assertion” of its interest. Id. Not so,

this Court explained—the lower courts could respect

the prison officials’ “expertise,” but “that respect does

not justify the abdication of the responsibility,

conferred by Congress, to apply RLUIPA’s rigorous

standard.” Id.

To be sure, RLUIPA “affords prison officials ample

ability to maintain security,” and a court need not

“blind” itself “to the fact that the analysis is

conducted in the prison setting.” Id. at 369; see also

Dunn, 141 S. Ct. at 725 (Kagan, J., concurring in

denial of application to vacate injunction) (“Prison

security is . . . a compelling state interest.”). But, as

then-Judge Gorsuch has explained, the deference

that should be “extend[ed to] the experience and

expertise of prison administrators does not extend so

far that prison officials may declare a compelling

governmental interest by fiat.” Yellowbear, 741 F.3d

at 59; see also Cutter, 544 U.S. at 716–17.

Opposing certiorari, TDCJ suggested that “RLUIPA

defers to the expertise of prison officials who create

intricate and exacting execution protocols to reduce

risks, not to petitioners who disregard the risks they

do not bear.” BIO at 25 (citation omitted). Courts

may rightly take prison officials’ expertise into

account, but they may not simply give blind

deference, as this Court has previously held. TDCJ’s

security interest alone cannot satisfy its burden.

16

Instead, the state must offer sufficient evidence to

show that its policy furthers that compelling interest

in preventing Mr. Ramirez’s pastor from offering

verbal prayer in the execution chamber, and is the

least restrictive way of doing so.

The lower courts’ reasoning departs from the plain

meaning of RLUIPA and the strict scrutiny standard

it demands. Cf. Tanzin v. Tanvir, 141 S. Ct. 486, 490

(2020) (applying the “plain meaning” of RFRA).

Taken to its logical conclusion, their reasoning would

allow a state to simply assert an important—albeit

generalized—interest to prevail. Thus, in Holt, the

prison officials would have prevailed simply by

showing that contraband can be a problem in the

prison context, without the need to show that the

particular

grooming

accommodation

would

exacerbate that problem in any meaningful way.

Such a result would water down the strict-scrutiny

analysis Congress imposed through RLUIPA and

create opportunities for government officials to mask

bias—even unconscious bias—against religious

adherents.

3. This case illustrates the importance of putting

the government to its proofs in the RLUIPA context.

Doing so can help minimize the unconscious bias that

can creep into governmental decision making.

Indeed, this was one of the motivating purposes of

RLUIPA. See 146 Cong. Rec. S7774 (daily ed. July

27, 2000) (joint statement of Sen. Hatch and Sen.

Kennedy) (RLUIPA’s “hearing record compiled

massive evidence that [the First Amendment] right is

frequently violated. Churches in general, and new,

small, or unfamiliar churches in particular, are

frequently discriminated against on the face of zoning

codes and also in the highly individualized and

discretionary processes of land use regulation.”); see

17

also id. at S7775 (“[T]he hearing record reveals a

widespread pattern of . . . discrimination against

small and unfamiliar denominations as compared to

larger and more familiar ones.”).

The Court’s decision and its guidance here should

reiterate RLUIPA’s “exceptionally demanding”

standards and remind lower courts that the

government must be put to its proofs under the

narrow-tailoring test. At a minimum, the Court

should vacate the decision below and remand to the

lower courts for additional fact-finding.

B. It appears that TDCJ failed to seriously

consider or attempt alternative policies.

The lack of record evidence justifying TDCJ’s

apparent ban on execution-chamber ministrations

highlights another reason why its policy would fail to

clear RLUIPA’s high bar.

As part of the least-restrictive-means analysis,

courts require governmental entities to consider

whether other policy options would be less

burdensome on individuals’ religious exercise. That

is, governments seeking to impose restrictions on the

religious practices of individuals cannot satisfy

RLUIPA by merely enacting a policy and

subsequently defending that policy as the least

restrictive possible option. The government must

actually have analyzed—perhaps even attempted—

alternative options. See Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33, 41 (1st Cir. 2007) (“A prison ‘cannot

meet its burden to prove least restrictive means

unless it demonstrates that it has actually considered

and rejected the efficacy of less restrictive measures

before adopting the challenged practice.” (quoting

Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.

2005))); Washington v. Klem, 497 F.3d 272, 284 (3d

18

Cir. 2007) (“[T]he phrase ‘least restrictive means’ is,

by definition, a relative term. It necessarily implies a

comparison with other means.”); Couch v. Jabe, 679

F.3d 197, 203 (4th Cir. 2012) (explaining that the

government must “acknowledge and give some

consideration to less restrictive alternatives”).

One way the government can satisfy its burden is

by “prov[ing] that each of the inmate’s proffered

alternatives is too burdensome.”

Williams v.

Annucci, 895 F.3d 180, 193 (2d Cir. 2018). When the

government does “not show[] that [a petitioner’s]

proposed alternatives are not viable,” the government

has necessarily failed to establish its high burden.

Id. at 193–94; see also Yellowbear, 741 F.3d at 62–63

(“As part of its burden to show that its policy

represents the least restrictive means available to

further its putatively compelling interest, the

government must of course ‘refute . . . alternative

schemes’ suggested by the plaintiff to achieve that

same interest and show why they are inadequate.”

(omission in original) (emphasis added) (quoting

United States v. Wilgus, 638 F.3d 1274, 1289 (10th

Cir. 2011))).

Of course, RLUIPA does not require a government

to consider every possible policy option. See Holt, 574

U.S. at 371–72 (Sotomayor, J. concurring). But at a

minimum, a government should consider any lessrestrictive options that are proposed by a religious

claimant. See id.

Here, the general counsel’s email announcing

TDCJ’s policy for Mr. Ramirez’s pastor offers no

significant reasoning, as noted above. And TDCJ

does not appear to have considered alternatives

19

beyond the complete ban.2 For example, as the

Eleventh Circuit has observed, Alabama’s historical

practice was for the state chaplain to pray for an

inmate during an execution and, if desired, hold the

inmate’s hand as he died. See Ray v. Comm’r, Ala.

Dep’t of Corr., 915 F.3d 689, 696–97 (11th Cir. 2019),

vacated sub nom. Dunn v. Ray, 139 S. Ct. 661 (2019)

(mem.). If chaplains in Alabama could safely offer

verbal prayers, TDCJ should at a minimum show

why ministers in Texas cannot do the same in order

to establish that its policy is the least restrictive

means of advancing its interests. Because it did not

do so here, the policy cannot survive RLUIPA’s strict

scrutiny.

TDCJ’s claim that verbal prayer risks disturbance

and cannot be safely allowed does not satisfy

RLUIPA’s proof burden. This Court has parsed the

distinction between “forms of protest” and “quiet

conversations” in the First Amendment context,

McCullen v. Coakley, 573 U.S. 464, 489, 496 (2014),

and there is no reason to think these same

distinctions do not also obtain in the capital context.

Texas must attempt to distinguish auditory prayer

from disruptive speech within the execution chamber,

and its failure to do so does not satisfy RLUIPA’s

exceedingly high bar.

In his Petition, Mr. Ramirez offered several

proposals that would allow him to satisfy the needs of

his faith as his sentence is carried out. These

proposals include allowing his pastor to speak, sing,

2 As discussed above, TDCJ’s citation to a federal BOP policy

by way of a federal court order does not provide the evidence it

needs to carry its burden on showing alternatives either. Supra

14–15. Even if BOP applies the policy TDCJ claims it does,

TDCJ should offer that evidence here, for Mr. Ramirez should be

able to cross-examine it in his own proceeding.

20

or even whisper scriptures or prayers, either standing

by Mr. Ramirez’s side or farther away. Pet. 14–15.

TDCJ describes these practices as “six different ways

to verbally disrupt the execution process.” BIO at 24.

But the record established neither that a spoken

prayer would verbally disrupt an execution nor how

such a disruption could not be mitigated in other

ways. And there is no record evidence that TDCJ

considered whether these or any other alternative

accommodations are feasible or would somehow

disrupt the execution chamber.

A lack of record evidence means “mere speculation”

about a supposed harm that a government policy is

meant to prevent—the very type of reasoning

RLUIPA was designed to prevent. Holt, 547 U.S. at

371 (Sotomayor, J., concurring) (citing 106 Cong. Rec.

16699 (2000)).

In sum, the lower courts did not treat Mr.

Ramirez’s religious claims with the deference and

flexibility that RLUIPA requires. Through RLUIPA,

Congress struck a delicate balance that protects the

interests of both the state and the individual.

RLUIPA places the burden of demonstrating the

unsuitability of a petitioner’s less-restrictive options

on the government. The lower courts’ willingness to

suspend that burden does not accord with the statue’s

respect for inmates’ religious practices.

21

CONCLUSION

For the foregoing reasons, the judgment of the

Fifth Circuit should be reversed.

Respectfully submitted,

GORDON D. TODD*

WILLIAM R. LEVI

CHRISTOPHER S. ROSS

JOSEPH V. CONIGLIO

MATTHEW H. SIMPSON†

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

Counsel for Amici Curiae

September 27, 2021

* Counsel of Record

† Mr. Simpson is admitted only in Virginia and is practicing

law in the District of Columbia pending admission to the D.C.

bar and under the supervision of principals of the firm who are

members in good standing of the D.C. bar.