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 HENRY RAMIREZ,

Petitioner,

v.

BRYAN COLLIER, EXECUTIVE DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.,

Respondents.

_________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________

BRIEF AMICUS CURIAE OF THE

BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONER

__________

MICHAEL W. MCCONNELL

559 Nathan Abbott Way

Stanford, CA 94305

JOSHUA C. MCDANIEL

JAMES A. SONNE

HARVARD LAW SCHOOL

RELIGIOUS FREEDOM CLINIC

1585 Massachusetts Ave.

Cambridge, MA 02138

ERIC C. RASSBACH

Counsel of Record

LORI H. WINDHAM

CHRIS PAGLIARELLA

DANIEL L. CHEN

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Penn. Ave., NW

Suite 400

Washington, DC 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

QUESTIONS PRESENTED

The Court granted certiorari on the following

questions:

1. Under the Free Exercise Clause and Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. §§ 2000cc–2000cc-5 (2000), does the State’s

decision to allow Ramirez’s pastor to enter the

execution chamber, but forbidding the pastor from

laying his hands on his parishioner as he dies,

substantially burden the exercise of his religion, so as

to require the State to justify the deprivation as the

least restrictive means of advancing a compelling

governmental interest?

2. Under the Free Exercise Clause and Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. §§ 2000cc–2000cc-5 (2000), does the State’s

decision to allow Ramirez’s pastor to enter the

execution chamber, but forbidding the pastor from

singing prayers, saying prayers or scripture, or

whispering prayers or scripture, substantially burden

the exercise of his religion, so as to require the State

to justify the deprivation as the least restrictive means

of advancing a compelling governmental interest?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................ i

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

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

INTRODUCTION AND SUMMARY

OF ARGUMENT......................................................... 2

ARGUMENT ............................................................... 3

I. The Free Exercise Clause protects the right of

condemned prisoners to engage in historical

religious practices like audible clergy prayer

and clergy touch at the time of execution. ........... 3

A. There is a historical religious practice of

audible clergy prayer at the time of

execution. ......................................................... 3

B. There is a historical religious practice of

clergy touch at the time of execution. ........... 15

C. TDCJ’s prohibition of historical religious

practices triggers strict scrutiny under the

Free Exercise Clause. .................................... 20

II. Denying audible clergy prayer and clergy touch

also triggers strict scrutiny under RLUIPA....... 23

III.TDCJ cannot make out a successful strict

scrutiny affirmative defense under either the

Free Exercise Clause or RLUIPA. ...................... 25

IV. The Court can and should grant conditional

relief to Ramirez. ................................................. 30

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agudath Israel of Am. v. Cuomo,

141 S.Ct. 889 (2020) ............................................. 22

Alleyne v. United States,

570 U.S. 99 (2013) ................................................ 20

Benning v. Georgia,

391 F.3d 1299 (11th Cir. 2004) .............................. 1

Betterman v. Montana,

136 S.Ct. 1609 (2016) .......................................... 20

Bucklew v. Precythe,

139 S.Ct. 1112 (2019) ........................................... 21

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .............................................. 23

Caetano v. Massachusetts,

577 U.S. 411 (2016) .............................................. 17

Carpenter v. United States,

138 S.Ct. 2206 (2018) ........................................... 20

Church of the Lukumi Babalu Aye v.

City of Hialeah,

508 U.S. 520 (1993) ........................................ 22, 23

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 20

iv

Dunn v. Smith,

141 S.Ct. 725 (2021) ......................................passim

Employment Division v. Smith,

494 U.S. 872 (1990) .............................................. 23

Financial Oversight & Mgmt. Bd. for

P.R. v. Aurelius Inv., LLC,

140 S.Ct. 1649 (2020) ........................................... 20

Fulton v. City of Philadelphia,

141 S.Ct. 1868 (2021) ........................................... 25

Gonzales v. O Centro Espírita

Beneficente União do Vegetal,

546 U.S. 418 (2006) .............................................. 25

Grupo Mexicano de Desarrollo, S.A. v.

Alliance Bond Fund, Inc.,

527 U.S. 308 (1999) .............................................. 30

Gutierrez v. Saenz,

141 S.Ct. 1260 (2021) ........................................... 24

Hill v. McDonough,

547 U.S. 573 (2006) .............................................. 32

Holt v. Hobbs,

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

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .............................................. 21

Kahler v. Kansas,

140 S.Ct. 1021 (2020) ........................................... 21

v

Kerry v. Din,

576 U.S. 86 (2015) ................................................ 20

Kyllo v. United States,

533 U.S. 27 (2001) ................................................ 17

Lindsey v. Clark,

69 S.E.2d 342 (Va. 1952) ...................................... 31

Liu v. SEC,

140 S.Ct. 1936 (2020) ........................................... 30

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) .............................. 20

Mast v. Fillmore County,

141 S.Ct. 2430 (2021) ........................................... 26

McCullen v. Coakley,

573 U.S. 464 (2014) .............................................. 26

Moussazadeh v. TDCJ,

703 F.3d 781 (5th Cir. 2012) .................................. 1

Murphy v. Collier,

139 S.Ct. 1475 (2019) ....................................passim

Murphy v. Collier,

423 F. Supp. 3d 355 (S.D. Tex. 2019) ............ 13, 18

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ......................................... 22-23

Oregon v. Ice,

555 U.S. 160 (2009) .............................................. 20

vi

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

140 S.Ct. 2049 (2020) ........................................... 22

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) .............................................. 30

Ray v. Commissioner,

915 F.3d 689 (11th Cir. 2019) .............................. 18

Rich v. Secretary,

716 F.3d 525 (11th Cir. 2013) ................................ 1

Roman Catholic Diocese of Brooklyn v.

Cuomo,

141 S.Ct. 63 (2020) ............................................... 22

Smith v. Commissioner,

844 F.App’x 286 (11th Cir. 2021) ......................... 29

Spratt v. Rhode Island Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) .................................. 27

Taggart v. Lorenzen,

139 S.Ct. 1795 (2019) ........................................... 30

Tandon v. Newsom,

141 S.Ct. 1294 (2021) ........................................... 22

Town of Greece v. Galloway,

572 U.S. 565 (2014) .............................. 3, 17, 21, 23

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 22

Wisconsin v. Yoder,

406 U.S. 205 (1972) .............................................. 22

vii

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ................................ 24

Statutes

42 U.S.C. 2000cc-1(a) ................................................ 24

42 U.S.C. 2000cc-5(7)(A) ........................................... 24

Tex. Penal Code § 38.15 ............................................ 29

Other Authorities

Ames, Chafee & Re on Remedies: Cases

and Materials (Emily Sherwin &

Samuel L. Bray, eds., 3d ed. 2019) ...................... 31

An account of the behavior of Mr.

William Talman, Philadelphia

Gazette, Aug. 3, 1791 ............................................. 8

Associated Press, Man executed in

Alabama: “I hope this brings closure”,

CBS News (Jan. 22, 2016)......................... 13, 18-19

Catechism of the Catholic Church .............................. 9

Executions by State and Year, Death

Penalty Information Center................................. 18

Execution of Clark, Salem Gazette, May

11, 1821................................................................... 8

Execution of Colonel Despard, The

Republican, Apr. 11, 1803 ...................................... 9

viii

Execution of Donnelly, Dover Gazette &

Strafford Advertiser, Jan. 23, 1858 ..................... 16

Execution of the Halsted Murderer,

Milwaukee Sentinel, Jan. 29, 1872 ..................... 16

Execution of Joseph Clerk for the Murder

of Policeman Gillespie,Weekly

Herald, Feb. 12, 1853 ........................................... 16

Execution of the Spanish Pirates,

Washington Globe, June 16, 1835 ....................... 16

Execution at the Tombs, Weekly Herald,

Jan. 28, 1854 .......................................................... 9

Execution of Peter Mattocks in

Philadelphia, New York Herald, May

26, 1856................................................................... 9

The Gallows: Execution of a

Philadelphia Murderer, St. Louis

Daily Globe-Democrat, June 13, 1877 ................. 16

Joel Clough—The Execution, National

Intelligencer, Jul. 29, 1833 .................................. 16

Letters and Papers, Foreign & Domestic,

of the Reign of Henry VIII, Part I

(James Gairdner & R.H. Brodie, eds.,

1903) ....................................................................... 4

Shorter Encyclopaedia of Islam (H.A.R.

Gibbs & J.H. Kramers, eds., E.J.

Brill 1961) ............................................................. 10

ix

Shulchan Arukh, Orach Chayim .............................. 10

StoryCorps, Witness to an Execution

(Oct. 20, 2000) ...................................................... 13

U.S. Army, A.R. 633-15, Procedure for

Military Executions (Apr. 7, 1959) ...................... 11

U.S. Army, Pamphlet 27-4, Procedure

for Military Executions (Dec. 9, 1947)................. 11

Stuart Banner, The Death Penalty: An

American History (2009) ................................ 5, 6, 7

John Blume, Killing the Willing:

“Volunteers,” Suicide and

Competency, 103 Mich. L. Rev. 939

(2005) .................................................................... 19

4 Boswell’s Life of Johnson (George

Birkbeck Hill & L. F. Powell eds.,

Oxford 1934) ......................................................... 27

Samuel L. Bray, Remedies, Meet

Economics; Economics, Meet

Remedies, 38 Oxford J. of Legal

Studies 71 (2018) .................................................. 31

Kim Chandler, Alabama: Pastor can

hold inmate’s hand during execution,

Associated Press (Sept. 9, 2021) .......................... 19

Daniel A. Cohen, Pillars of Salt,

Monuments of Grace (2006) ................................ 7-8

x

Pamela Colloff, The Witness, Texas

Monthly (Sept. 2014) ............................................ 18

Davison M. Douglas, God and the

Executioner: The Influence of Western

Religion on the Use of the Death

Penalty, 9 Wm. & Mary Bill Rts. J.

137 (2000) ............................................................... 8

Chaplain Henry F. Gerecke, I Walked to

the Gallows With the Nazi Chiefs,

The Saturday Evening Post, Sept. 1,

1951....................................................................... 11

James Guthrie, Ordinary’s Account

(Nov. 21, 1743)............................................. 4, 15-16

John D. Heydon, Mark J. Leeming &

P.G. Turner, Meagher, Gummow &

Lehane’s Equity: Doctrines &

Remedies (5th ed. 2015) ....................................... 31

Bob Johnson, Inmate in 2005 killing put

to death, Gadsden Times (Jul. 25,

2013) ............................................................... 13, 19

Samuel Johnson, The necessity of

proportioning punishments to crimes,

The Rambler, No. 114, April 20, 1751 ................. 27

Fr. John C. Kasza, Understanding

Sacramental Healing (Anointing and

Viaticum) (2007) ..................................................... 9

Damien Keown, Oxford Dictionary of

Buddhism (2004) .................................................. 10

xi

Walter C. Long, The Constitutionality

and Ethics of Execution-Day Prison

Chaplaincy, 21 Tex. J. C.L. & C.R. 1

(2015) .................................................................... 18

William DeLoss Love, Samson Occom

and the Christian Indians of New

England (1899) ....................................................... 6

Louis P. Masur, Rites of Execution:

Capital Punishment and the

Transformation of American Culture,

1776-1865 (1989) ................................................. 8-9

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 Harv. L.

Rev. 1409 (1990) ................................................... 22

Michael W. McConnell, Reflections on

Hosanna-Tabor, 35 Harv. J.L. & Pub.

Pol’y 821 (2012) .................................................... 23

Randall McGowen, The Body and

Punishment in Eighteenth-Century

England, 59 J. Mod. Hist. 651 (1987).................... 5

Andrea McKenzie, Tyburn’s Martyrs

(2007) .................................................................. 4, 9

Mary Milz, The nun of death row stands

against the death penalty while

providing spiritual companionship to

the condemned, NBC WTHR 13 (Dec.

17, 2020) ............................................................... 14

xii

John Norton Pomeroy, 1 Pomeroy’s

Equity Jurisprudence (3d ed. 1905)..................... 31

Mark Pratt, South Carolina inmate is

nation’s 500th execution since 1977,

Associated Press, Dec. 19, 1998 ........................... 14

Dick Reavis, Charlie Brooks’ Last

Words, Texas Monthly (Feb. 1983) ................ 13, 27

Via Ryckaert et al., Wesley Ira Purkey

executed in Terre Haute, Indianapolis

Star, July 16, 2020 ............................................... 14

Dennis Shere, Warden saw only one

answer for troubled La. Prison:

Christ, Baptist Press (Jan. 3, 2008) .................... 19

Kevin Simpson, In 1997, Colorado’s first

execution in 30 years marked a

watershed moment, Colorado Sun

(Mar. 4, 2019) .................................................. 13-14

Samuel Smith, Ordinary’s Account

(June 16, 1693) ..................................................... 15

Jacqueline I. Stone, By the Power of

One’s Last Nenbutsu: Deathbed

Practices in Early Medieval Japan,

in Approaching the Land of Bliss

(Richard K. Payne & Kenneth K.

Tanaka, eds. 2004) ............................................... 10

xiii

Lynn Waltz, Death Walk Chaplain Russ

Ford Has Accompanied 19

Condemned Murderers to Virginia’s

Electric Chair, The Virginian-Pilot,

Aug. 28, 1994 .................................................. 12, 17

George Washington, General Orders

(June 9, 1777), reproduced in

Founders Online, National Archives .................. 6-7

George Washington, General Orders

(May 1, 1780), reproduced in

Founders Online, National Archives ..................... 7

George Washington, Proclamation of

Pardon (May 26, 1780) reproduced in

Founders Online, National Archives ..................... 7

INTEREST OF THE AMICUS CURIAE 1

The Becket Fund for Religious Liberty is a

nonprofit, nonpartisan law firm dedicated to

protecting the free expression of all religious

traditions. It has represented agnostics, Buddhists,

Christians,

Hindus,

Jews,

Muslims,

Native

Americans, Santeros, Sikhs, and Zoroastrians, among

others, in lawsuits across the country and around the

world.

Becket has often defended prisoners’ exercise of

religion, including against the Respondent here. See,

e.g., Holt v. Hobbs, 574 U.S. 352 (2015) (beard for

Muslim prisoner); Rich v. Secretary, 716 F.3d 525, 534

(11th Cir. 2013) (kosher diet for Jewish prisoner);

Moussazadeh v. TDCJ, 703 F.3d 781, 784 (5th Cir.

2012) (same); Benning v. Georgia, 391 F.3d 1299, 1302

(11th Cir. 2004) (same). It has also filed as amicus in

emergency-docket applications regarding deathchamber clergy access. See Dunn v. Smith, 141 S.Ct.

725 (2021); Murphy v. Collier, 139 S.Ct. 1475 (2019).

As an organization focused solely on religious

liberty, Becket takes no position on the administration

of the death penalty in general or Ramirez’s crime in

particular. Becket instead submits this brief to explain

that the presence of clergy at executions—and their

ability to pray aloud for and touch the condemned—is

an ancient religious practice that our Constitution and

laws protect from arbitrary government interference.

No counsel for a party authored any portion of this brief

or made any monetary contribution intended to fund its

preparation or submission. All parties have consented to

the filing of this brief.

1

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case might be difficult if the religious practices

the Texas Department of Criminal Justice forbids—

audible clergy prayer and clergy touch at the time of

execution—were novel or historically unusual. But

just the opposite is true. Our Nation has an unbroken

history of allowing these very practices before, during,

and after the Founding. Indeed, if an ounce of history

is worth a pound of doctrine, here there are pounds of

history on offer—from the executions of deserters

during the Revolutionary War, to the “execution

sermons” of Cotton Mather, to the Army executions of

Nazi war criminals after the Nuremberg Trials, and

the practice of many states (including Texas) until the

present day.

As we explain below, the religious exercises at

issue—audible clergy prayer and clergy touch—both

stand at the center of the “historical practices and

understandings” that define the Free Exercise right

with respect to clergy access for the condemned. And

just as historical practices and understandings guide

the courts in interpreting most other parts of the Bill

of Rights, including the other Religion Clause, those

historical practices and understandings definitively

show that the religious exercises here lie at the heart

of the Free Exercise protection, triggering strict

scrutiny. That protection is complemented by

RLUIPA, which independently triggers strict scrutiny

under Holt v. Hobbs.

The strict scrutiny analysis is similarly

straightforward. TDCJ offers no reason why other

States—now including Alabama—can accommodate

audible clergy prayer and clergy touch, but it cannot.

3

That means its policy fails strict scrutiny. Indeed,

until recently TDCJ itself allowed both audible clergy

prayer and clergy touch, and TDCJ can give no

convincing reason why it must forbid them now.

Finally, conditional relief—requiring meaningful

clergy access as a condition of carrying out an

execution—lies squarely within the federal courts’

equitable powers. Although not all claims will be

meritorious, here there is no manipulation or delay, so

Petitioner should be granted conditional relief.

ARGUMENT

I. The Free Exercise Clause protects the right

of condemned prisoners to engage in

historical religious practices like audible

clergy prayer and clergy touch at the time of

execution.

In Town of Greece v. Galloway, the Court

recognized that whatever other test might apply, “the

Establishment Clause must be interpreted by

reference to historical practices and understandings.”

572 U.S. 565, 576 (2014) (cleaned up). The same can

be said of the Free Exercise Clause. As we show below,

both religious exercises Ramirez seeks at the time of

death—audible clergy prayer and clergy touch—are

“historical practices” that enjoy protection under the

Free Exercise Clause.

A. There is a historical religious practice of

audible clergy prayer at the time of

execution.

The historic record unequivocally demonstrates

that “historical practices and understandings” of

religious exercise encompass audible clergy prayer—

4

from a minister of the prisoner’s choice—at the time of

execution.

1. In England and her colonies, the practice of

audible spiritual guidance (or other audible rituals) in

the final moments before death long predated and

continued through the Founding. The “Visitor of

Newgate” or “Ordinary of Newgate,” an early prison

chaplain, was first appointed in 1544 and was charged

with ministering to the prisoners in Newgate Prison.

His duties included accompanying the condemned to

Tyburn Gallows, where he would stand in the cart 2

together with the condemned immediately before the

execution took place, and would pray for the

condemned. 19 Letters and Papers, Foreign &

Domestic, of the Reign of Henry VIII, Part I at 501

(James Gairdner & R.H. Brodie, eds., 1903); Andrea

McKenzie, Tyburn’s Martyrs 10-14 (2007). Although

the Ordinary was an Anglican cleric, Nonconformists,

Catholics, Jews, and others were eventually

accommodated, both at Newgate and at Tyburn; the

“policy of religious toleration at Newgate was by the

1740s referred to as a custom of long standing[.]”

McKenzie 179. For example, according to the “custom

of the kingdom,” in 1743 Jewish prisoner Abraham

Pass “was allowed, as is usual in those cases, out of

Charity to such miserable Creatures in their last

Moments, that they may not be put to any Confusion

or Uncertainty, to allow them Clergy of their own

Communion.” James Guthrie, Ordinary’s Account 10

(Nov. 21, 1743), https://perma.cc/9CX4-F39H.

Before 1783, the condemned stood in a cart underneath

the gallows, and died “after the cart upon which they stood

was drawn away.” McKenzie 16.

2

5

“[I]n the seventeenth and eighteenth centuries,”

capital punishment was understood “to facilitate the

criminal’s repentance,” with the theological idea that

“d[ying] in the proper frame of mind” could determine

“one’s eternal fate.” Stuart Banner, The Death Penalty:

An American History 16 (2009). For that reason,

ministers would constantly be “instruct[ing],”

“direct[ing],” and “pray[ing] with” the condemned up

until death. Id. at 18; see, e.g., Randall McGowen, The

Body and Punishment in Eighteenth-Century

England, 59 J. Mod. Hist. 651, 651 (1987) (“The

condemned * * * were accompanied by a clergyman

who shadowed their last moments urging them to

repent or consoling them with the offer of divine

forgiveness.”).

In one of the most famous executions in English

history—the regicide of Charles I in 1649—the King

was ministered to on the scaffold by William Juxon,

the (then-deposed) Bishop of London. The

seventeenth-century depiction of the execution set

forth below prominently features Bishop Juxon in

black, receiving final gifts from a standing Charles I

before he lays his head upon the block:

6

National

Portrait

Gallery

https://perma.cc/P9LV-L8N8.

(London,

UK),

2. American history also manifests a consistent

practice of audible clergy prayer. Colonial press

described clergy “attend[ing] the Criminal to the Place

of Execution” and providing a “well adapted Prayer to

the Occasion.” New London Gazette, Sept. 11, 1772,

reprinted in William DeLoss Love, Samson Occom and

the Christian Indians of New England 173-174 (1899).

William Smith’s 1791 guidebook for ministers, The

Convict’s Visitor, noted in its subtitle that it offered

“suitable devotions before, and at the time of

Execution” in order to provide guidance for this

“routine” ministry. Banner 18 (italics in original).

The founding generation was very familiar with

these practices—including allowing the prisoner to

choose the clergyman—not least due to their

experiences during the Revolution. For example,

General Washington ordered that “prisoners under

sentence of death” “be attended with such Chaplains,

as they choose” at their “execution, to morrow at 12

o’clock.” George Washington, General Orders (June 9,

1777), reproduced in Founders Online, National

7

Archives, https://perma.cc/XU7H-XXUV.

Numerous primary sources describe deserters

sentenced to death under General Washington as

being ministered to by clergy praying aloud at the

execution. See, e.g., George Washington, General

Orders (May 1, 1780), reproduced in Founders Online,

National Archives, https://perma.cc/K6MM-W4NQ

(appending report of Pennsylvania Evening Post

reporting how “the attending chaplain * * * prayed

and recommended [the criminals] severally to God”

before the first “was fixed to the gallows”). In another

case, General Washington approved a sentence of

death against a number of prisoners, and had ordered

the execution to proceed. The chaplain then “attended

them to the gallows, [and] addressed them” on “the

justice of their sentence, and the high importance of a

preparation for death.” George Washington,

Proclamation of Pardon (May 26, 1780) reproduced in

Founders

Online,

National

Archives,

https://perma.cc/Y9U3-WK58 (appendix). “At this

awful moment, while their fervent prayers are

ascending to Heaven, an officer comes forward and

reads a reprieve for seven of them, by the commanderin-chief.” Ibid.

Early American executions by hanging were

typically a public spectacle, and it was common for

ministers to continue to “le[a]d prayers” for the

condemned, and for those assembled to watch, right up

until the condemned person was hanged. Banner 159.

Cotton Mather, Benjamin Colman, and other

“notable[ ] ” Puritan ministers assisted in the early

spread of this practice—the “execution sermon”—

which itself developed from the English “gallows

sermons” before it. Daniel A. Cohen, Pillars of Salt,

8

Monuments of Grace 3-5 (2006). 3 These sermons

delivered “at the gallows” sometimes consisted not

only of telling the prisoner “to put all his trust in the

mercy of God” and delivering public “word[s] of

exhortation,” but even in singing “a few verses” of

hymns at death. An account of the behavior of Mr.

William Talman, Philadelphia Gazette, Aug. 3, 1791

(first-person recollection by New Jersey minister on

“addressing the multitude” and ministering to the

condemned at an execution).

Press reports through the 1800s attest to this

continued public practice. For example, Stephen

Clark—hanged in Massachusetts in 1821 for arson—

was permitted to select two clergymen “for his

spiritual confessors, who continued to the last their

benevolent and pious endeavours to give him a just

view of his deplorable condition.” Execution of Clark,

Salem Gazette, May 11, 1821. The clergymen

“ascended the scaffold” alongside Clark, and both

addressed the crowd in prayer before one prayed “in

most appropriate and affecting terms” with Clark

alone, “and the scene soon closed forever!” Ibid.

Antebellum-era newspapers from Pennsylvania

and New York persistently mention the presence of a

minister alongside the condemned on the gallows,

“offer[ing] a prayer as the prisoner wept” or praying

Increase Mather, Cotton’s father and President of

Harvard College, was notably among those using

“execution sermons” to “urg[e] repentance” of both “the

condemned and * * * the community” and “convey[ ] the

social and religious meaning of the execution.” Davison M.

Douglas, God and the Executioner: The Influence of Western

Religion on the Use of the Death Penalty, 9 Wm. & Mary Bill

Rts. J. 137, 156 & n.96 (2000).

3

9

alongside. Louis P. Masur, Rites of Execution: Capital

Punishment and the Transformation of American

Culture, 1776-1865 93 (1989); see, e.g., Execution at

the Tombs, Weekly Herald, Jan. 28, 1854 (New York

execution where condemned “entered into a fervent

prayer in a low tone with the priest” below “the fatal

beam”); Execution of Peter Mattocks in Philadelphia,

New York Herald, May 26, 1856 (pastor spoke aloud

on scaffold before prisoner’s last words and hanging).

3. While the British Empire’s practices—from

which the American Colonies’ practices derived—

reflected a Protestant tradition, other religious

traditions also incorporated audible prayer at death,

even from before the Founding. For example, Catholic

practices that have accompanied death for over a

millennium are well-known to involve speech and

action. The priest audibly prays “the liturgy of

Viaticum” that “the Lord Jesus Christ protect you and

lead you to eternal life.” Fr. John C. Kasza,

Understanding Sacramental Healing (Anointing and

Viaticum) 223 (2007); see Catechism of the Catholic

Church §§ 1501-1502, 1524-1525 (discussing viaticum

and the effect of expected death on discernment).

These rituals are also performed for those condemned

to die. Remarkably, Catholic prisoners were allowed

these practices even before the Catholic religion

attained full toleration in Britain, showing just how

fundamental this right was. See, e.g., McKenzie 176182; Execution of Colonel Despard, The Republican,

Apr. 11, 1803 (among six prisoners, “Macnamara being

a Roman Catholic, was attended by a Roman Catholic

Priest,” and on the scaffold, “Macnamara prayed

earnestly with the Clergyman of his own persuasion,”

before clergy “shook hands with each of them”).

10

Similarly, the ancient branch of Buddhism called

Pure Land Buddhism—at issue in Murphy v. Collier—

has long emphasized the “vital role” of those

ministering to the dying in “guiding deathbed

reflection and repentance, and chanting the

nenbutsu,” a key oral invocation (also transliterated

nembutsu). Jacqueline I. Stone, By the Power of One’s

Last Nenbutsu: Deathbed Practices in Early Medieval

Japan, in Approaching the Land of Bliss 84 (Richard

K. Payne & Kenneth K. Tanaka, eds. 2004);

see “Namu Abida Butsu,” Damien Keown,

Oxford

Dictionary

of

Buddhism

(2004),

https://perma.cc/C5J3-P2XU

(describing

the

“nembutsu or oral invocation” chanted “in order to

gain rebirth”). This belief in the “radical salvific power

of one’s last nenbutsu” follows the faith’s

understanding that rinju shonen—“right mindfulness

at the last moment”—is essential to salvation. Stone

77; see Murphy, 139 S.Ct. at 1484 (Alito, J., dissenting)

(observing Murphy’s belief “that he will be reborn in

the Pure Land only if he succeeds in remaining focused

on Buddha while dying and that the chants of a

Buddhist priest will help him in this endeavor”).

Similarly, some other non-Christian traditions

have long taught that certain prayers must be audible.

See, e.g., Shulchan Arukh, Orach Chayim 62:3, 101:2

(certain Jewish prayers must be said aloud, though in

a way designed not to disrupt other congregants);

Ṣalāt, Shorter Encyclopaedia of Islam (H.A.R. Gibbs &

J.H. Kramers, eds., E.J. Brill 1961) 493 (some daily

prayers must be said aloud).

4. In the era of modern executions, audible clergy

prayer with and on behalf of the condemned

continued. After World War II, Army procedures

11

directed that “[i]n all executions, a chaplain of the

prisoner’s choice will be provided if practicable” and

would be made available to the prisoner “at all times

after the prisoner [was] notified of the time of

execution.” U.S. Army, Pamphlet 27-4, Procedure for

Military Executions, § I.9. (Dec. 9, 1947); U.S. Army,

A.R. 633-15, Procedure for Military Executions, § I.6

(Apr. 7, 1959). For each type of execution, the chaplain

was to “accompany the prisoner.” 1947 Procedure,

§§ II.13.d., III.16.c.; 1959 Procedure, §§ II.10.d.,

III.13.c., IV.18.c.

For hanging, “the chaplain preced[ed] the prisoner”

onto the gallows and left only upon pronouncement of

death. 1947 Procedure, §§ III.18.e, III.19.b. For

electrocution, the chaplain remained “in[ ] the

execution chamber” through the execution. 1959

Procedure, § IV.20.b. And for “musketry,” the chaplain

would “proceed directly to the prisoner’s post” and only

“retire to the flank” immediately before the shooting.

1947 Procedure, §§ II.14.f., II.15.a. In all of these, the

officer in charge would allow a “reasonable time”

immediately before execution for the chaplain and

prisoner together to exchange “any last statement.”

See 1959 Procedure, §§ II.12.a., III.16.a., IV.20.b.

And in the executions of Nazi war criminals

conducted by the United States Army following World

War II, including the Nuremberg Trials, chaplains

accompanied the condemned to the place of execution

and “spoke” aloud prayers just before they “dropped

through the trap door.” Chaplain Henry F. Gerecke, I

Walked to the Gallows With the Nazi Chiefs, The

Saturday Evening Post, Sept. 1, 1951. Contemporary

photographs depict the scene:

12

National Archives, Office of Chief of Counsel for War

Crimes, Execution at Landsberg Prison.

The United States government thus ensured that

even those who committed crimes against humanity or

war crimes heard audible clergy prayer—not because

of who the war criminals were, but because of who

Americans are.

More recently, in Virginia, the death row chaplain

would stand beside the condemned prisoner as he was

strapped down, offering final prayers and spiritual

guidance. See Lynn Waltz, Death Walk Chaplain Russ

Ford Has Accompanied 19 Condemned Murderers to

Virginia’s Electric Chair, The Virginian-Pilot, Aug. 28,

1994 (minister urged one prisoner “to move ahead into

the next life” and told another “there was a part of him

that would never die,” immediately before the “roar of

electricity”).

13

5. In fact, until the dispute in Murphy, TDCJ

itself—for decades, and from the very start—allowed

audible clergy prayer at lethal injection executions.

See, e.g., Dick Reavis, Charlie Brooks’ Last Words,

Texas Monthly (Feb. 1983), https://perma.cc/KM2N3GUD (describing imam’s and prisoner’s audible

prayer in execution chamber during Texas’s first

lethal injection); StoryCorps, Witness to an Execution

(Oct. 20, 2000), https://perma.cc/4XFJ-3L8X, at 16:00

(audio of Rev. Carroll Pickett discussing prayer,

counseling, and other “conversations” provided in the

last “probably forty-five seconds” for various inmates

in the Texas execution chamber by the chaplain). In

the parallel Murphy litigation, TDCJ chaplains have

echoed these press reports and first-hand accounts.

See 6/24/19 Brouwer Tr. at 30:25-31:6, Murphy v.

Collier, 423 F. Supp. 3d 355 (S.D. Tex. 2019) (No. 191106), ECF 38-6 (chaplain Thomas Brouwer stating

that TDCJ chaplains could “pray with” and “read

passages from the Bible” aloud to prisoners in the

chamber); 6/24/19 Jones Tr. at 24:15-20, Murphy v.

Collier, (No. 19-1106), ECF 38-4 (chaplain Timothy

Jones confirming prayer with prisoners was

permitted).

Other states have also long allowed audible clergy

prayer. Bob Johnson, Inmate in 2005 killing put to

death,

Gadsden

Times

(Jul.

25,

2013),

https://perma.cc/WY6R-2FXR (chaplain “knelt beside

Lackey and prayed quietly” as the drugs ran);

Associated Press, Man executed in Alabama: “I hope

this brings closure”, CBS News (Jan. 22, 2016),

https://perma.cc/Z24D-ZC5X (“A prison chaplain held

Brooks’ hand and appeared to pray with him as the

first drug, a sedative, began flowing.”); Kevin

14

Simpson, In 1997, Colorado’s first execution in 30 years

marked a watershed moment, The Colorado Sun (Mar.

4, 2019), https://perma.cc/CAR2-QBNQ (recording the

“priest pray[ing] beside [Gary Lee] Davis” as the

chemicals entered his body). Cf. Mark Pratt, South

Carolina inmate is nation’s 500th execution since 1977,

Associated Press, Dec. 19, 1998 (“Before the curtain

was drawn on the death chamber, witnesses could

hear Smith, his lawyer and two chaplains singing

‘Amazing Grace’ as they walked through the

corridor.”).

And contrary to TDCJ’s insistence that its flat

prohibition on speaking is analogous to federal

practice, multiple federal executions that took place

last year (after a long moratorium) featured audible

prayer. See, e.g., Mary Milz, The nun of death row

stands against the death penalty while providing

spiritual companionship to the condemned, NBC

WTHR 13 (Dec. 17, 2020), https://perma.cc/P8YTL4XB (Catholic nun “softly recit[ed] the Divine Mercy

Chaplet” in execution chamber in response to

prisoner’s request “to pray it out loud with him”); Via

Ryckaert et al., Wesley Ira Purkey executed in Terre

Haute,

Indianapolis

Star,

July

16,

2020,

https://perma.cc/Q467-T7EU (describing chaplain

“with his hands before his face in prayer” within the

chamber in federal execution).

In short, audible clergy prayer at the time of

execution follows a centuries-long tradition predating

the Founding, and is supported by millennia-old

religious practices of many faiths across the world.

Those historical practices and understandings confirm

that audible clergy prayer at the time of execution falls

15

well within the protective ambit of the Free Exercise

Clause.

B. There is a historical religious practice of

clergy touch at the time of execution.

Clergy touch at the time of execution is also a

historical religious practice and thus protected by the

Free Exercise Clause. 4

1. Physical touch stands within a tradition of

historical practice that has evolved in light of new

technological developments. For most of AngloAmerican legal history, the methods of execution

employed made it physically impossible for the clergy

member to touch the condemned person at the exact

moment of death. Hanging, firing squad, electrocution,

and the gas chamber all made touch at the exact

moment of death infeasible. Yet even with respect to

these methods of execution, clergy typically engaged

in physical touch up to the last moment. The Ordinary

of Newgate’s Accounts contain numerous examples. In

1693, at the execution of William Anderton, “Anderton

desired that his Brother, and a Minister, his Friend,

might come into the Cart, which was granted.” Samuel

Smith, Ordinary’s Account 2 (June 16, 1693),

https://perma.cc/T9FN-NU8K. Similarly, at the

execution of Abraham Pass, fellow Jews crowded so

closely around him at Tyburn that the Ordinary could

not make his way into the cart: “At the Place of

Execution, he appeared very Serious and concerned, I

Amicus employs the word “touch” rather than “laying on

of hands” to avoid confusion with other religious practices,

such as Catholic or Protestant ordination, or Jewish

semicha, that involve the placing of hands on someone else.

4

16

prayed for him, and was willing to have read either

some suitable Chapters or Psalms, but he was

invested with so many Jews, that there could be no

Ground gained upon him.” Guthrie 11.

American reports are likewise filled with examples

of touching. See, e.g., Joel Clough—The Execution,

National Intelligencer, Jul. 29, 1833 (condemned

“ascended the scaffold * * * arm in arm with the

Bishop” and clergy continued “[r]eligious exercises”

before “embrac[ing] him” prior to his “launch[ ] into

eternity”); Execution of the Spanish Pirates,

Washington Globe, June 16, 1835 (“As the cap was

about to be drawn over [the prisoner’s] face, the

Spanish priest fervently embraced him * * * .”);

Execution of Joseph Clerk for the Murder of Policeman

Gillespie, Weekly Herald, Feb. 12, 1853 (“The

attendant priest embraced and kissed the unfortunate

man most affectionately[,]” after “read[ing] aloud a

fervent prayer” on the gallows); Execution of Donnelly,

Dover Gazette & Strafford Advertiser, Jan. 23, 1858

(New Jersey murderer “embraced” two priests “about

the scaffold,” and prayed aloud and “kiss[ed]

reverently the crucifix” on priests’ prompting);

Execution of the Halsted Murderer, Milwaukee

Sentinel, Jan. 29, 1872 (“Up to the last moment he

held his hand in that of Mr. Week, the Prison

Chaplain” who had just finished his pronouncements

from the scaffold); The Gallows: Execution of a

Philadelphia Murderer, St. Louis Daily GlobeDemocrat, June 13, 1877 (chaplain “partially

embraced the doomed man” on “the scaffold,” “grasped

his hand warmly, and said, ‘Good-by, George; you are

going home to God’”).

17

Indeed, accounts show that clergy attempted touch

even at some potential danger to themselves. See, e.g.,

Waltz, Death Walk Chaplain (describing how chaplain

in 1990 execution “put his hand on the back of [the

prisoner’s] head” and held his hand while speaking to

him, but pulled back immediately before electricity

was applied).

This tradition shows that while the methods of

execution have evolved over time, the clergy’s role has

remained constant—they seek to perform a faith’s

traditional acts of spiritual practice as close in time to

the moment of death as the method of execution will

allow. Such practices “comport[ ] with [the] tradition”

of prior executions, Town of Greece, 572 U.S. at 591592, and are likewise granted protection by the Free

Exercise Clause.

Indeed, this Court has frequently extended Bill of

Rights protections to account for “advancing

technology.” Kyllo v. United States, 533 U.S. 27, 35

(2001) (new thermal imaging technology constituted

search under the Fourth Amendment); Caetano v.

Massachusetts, 577 U.S. 411, 412 (2016) (per curiam)

(“the Second Amendment extends to arms that were

not in existence at the time of the founding”) (cleaned

up). Here, the adoption of lethal injection as a new

execution method has allowed clergy touch even at the

moment of death. Permitting clergy touch is thus a

logical extension of historical practices and

understandings that date to the Founding and before.

2. This conclusion is reinforced by the fact that

government procedures since the advent of lethal

injection

evince

a

consistent

practice

of

accommodating clergy touch.

18

First and foremost, clergy touch was common in

Texas until recently. Prior to removing spiritual

advisors in 2019 and then adopting a new policy in

2021, “[t]he Texas execution-day chaplain’s routine”

involved the chaplain in the chamber “plac[ing] his

hand on the inmate until he or she is dead.” Walter C.

Long, The Constitutionality and Ethics of ExecutionDay Prison Chaplaincy, 21 Tex. J. C.L. & C.R. 1, 11-12

(2015); see also Pamela Colloff, The Witness, Texas

Monthly (Sept. 2014), https://perma.cc/4FZS-PLBX

(recounting typical experience of Texas “prison

chaplain” keeping “one hand resting on the

condemned’s leg” at death); 6/24/19 Moss Tr. at 19:310, Murphy v. Collier, (No. 19-1106), ECF 38-8

(chaplains “would always ask [the prisoners] if they

wanted us to” “put our hand” on them as they died). 5

Alabama’s longstanding chaplaincy practice made

similar accommodations. Ray v. Commissioner, 915

F.3d 689, 696-697 (11th Cir.) (“Chaplain may pray

with and touch the inmate’s hand as a lethal cocktail

of drugs is administered”), stay vacated on other

grounds, 139 S.Ct. 661, 661 (2019); Associated Press,

Man executed in Alabama (“A prison chaplain held

Brooks’ hand and appeared to pray with him as the

TDCJ’s practices regarding clergy touch are particularly

relevant not just because it is the Respondent, but also

because over the last decade TDCJ has accounted for

anywhere from 29% to 46% of all state executions carried

out each year. Executions by State and Year, Death Penalty

Information Center, https://perma.cc/C2ZA-PLFN. Only

eleven states have carried out any execution in the last five

years, and one of those (Virginia) subsequently abolished

the penalty. Ibid. How TDCJ specifically carries out

executions is thus of great importance.

5

19

first drug, a sedative, began flowing.”); Johnson,

Inmate in 2005 killing (“Once the injection was begun,

Holman chaplain Chris Summers walked to Lackey’s

side and held his hand.”). In the wake of Ray and

Murphy, Alabama attempted to bar all chaplain

access. But after Dunn v. Smith was decided, Alabama

agreed to allow audible prayer, handholding, and

anointing with oil by an outside spiritual adviser in

the upcoming execution of Willie Smith, the

respondent in Dunn v. Smith. See Kim Chandler,

Alabama: Pastor can hold inmate’s hand during

execution, Associated Press (Sept. 9, 2021),

https://bit.ly/3uhJ8IN.

Similarly, other states permit touch as part of

religious ministry in the chamber. See Dennis Shere,

Warden saw only one answer for troubled La. Prison:

Christ,

Baptist

Press

(Jan.

3,

2008),

https://perma.cc/PRA5-5YTL (Angola Warden Burl

Cain “held [prisoner’s] hand and told him to get ready

to see Jesus’ face” “as he lay strapped down on the

execution gurney”). South Carolina has permitted

touch even where the attending visitor was not

fulfilling a religious role. John Blume, Killing the

Willing: “Volunteers,” Suicide and Competency, 103

Mich. L. Rev. 939, 939 (2005) (Robert South’s lawyer

“held his hand while the state took his life by means of

lethal injection”).

Given the historical record, clergy touch during an

execution is both a logical extension of historical

practices and understandings of ministry to the

condemned, and a consistent practice in its own right.

Clergy touch therefore comes within the protection of

the Free Exercise Clause.

20

C. TDCJ’s prohibition of historical religious

practices triggers strict scrutiny under

the Free Exercise Clause.

TDCJ’s prohibitions on audible clergy prayer and

clergy touch are prohibitions on long-accepted and

long-protected historical religious practices and thus

must be subjected to strict scrutiny under the Free

Exercise Clause.

This Court has long recognized “the utility of

historical practice in interpreting constitutional

provisions.” Financial Oversight & Mgmt. Bd. for P.R.

v. Aurelius Inv., LLC, 140 S.Ct. 1649, 1659 (2020)

(citing M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316,

401 (1819)). And in the last few decades, this Court has

repeatedly invoked “historical practices” and

“historical understandings” as guideposts for deciding

what modern-day practices are protected by the

Constitution. 6

See, e.g., District of Columbia v. Heller, 554 U.S. 570, 625

(2008) (interpretation “accords with the historical

understanding of the scope of the [Second Amendment]

right”); Oregon v. Ice, 555 U.S. 160, 164 (2009) (interpreting

Sixth Amendment jury-trial right in light of “historical

practice”); Alleyne v. United States, 570 U.S. 99, 112 (2013)

(using “historical practice” to determine scope of Sixth

Amendment’s Confrontation Clause); Kerry v. Din, 576 U.S.

86, 92 (2015) (Due Process Clause of the Fifth Amendment

analyzed in accordance with “historical understanding”);

Betterman v. Montana, 136 S.Ct. 1609, 1614 (2016) (“Our

reading [of the Sixth Amendment speedy trial right]

comports with the historical understanding.”); Carpenter v.

United States, 138 S.Ct. 2206, 2214 (2018) (Fourth

Amendment “analysis is informed by historical

6

21

With respect to the Religion Clauses, the Court has

declared that the Establishment Clause “must be

interpreted by reference to historical practices and

understandings.” Town of Greece, 572 U.S. at 576

(cleaned up; emphasis added).

The same is true of the Free Exercise Clause. The

Court has frequently used historical practices to

determine the scope of Free Exercise Clause

protections. In Hosanna-Tabor, the Court looked first

to the historical background against which “the First

Amendment was adopted,” focusing on the particular

issue in that case—preventing government from

“filling

ecclesiastical

offices.”

Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565

U.S. 171, 182-184 (2012). It then examined the

understanding of early presidential administrations

that the First Amendment forbade “rendering an

opinion on the ‘selection of ecclesiastical individuals.’”

Id. at 184-185 (discussing Jefferson and Madison

administrations). Against that historical backdrop,

the Court interpreted the scope of both the Free

Exercise Clause and the Establishment Clause,

concluding that “[t]he church must be free to choose

those who will guide it on its way,” free from state

interference. Id. at 196.

Similarly, in Our Lady, the Court examined the

historical practices surrounding religious education in

understandings”); Bucklew v. Precythe, 139 S.Ct. 1112,

1122 (2019) (“examin[ing] the original and historical

understanding of the Eighth Amendment”); Kahler v.

Kansas, 140 S.Ct. 1021, 1027 (2020) (“Our primary guide in

applying [the Due Process Clause of the Fourteenth

Amendment] standard is ‘historical practice.’”).

22

deciding whether the Free Exercise Clause (and the

Establishment Clause) prevented interference with

religious schools’ employment decisions regarding

teachers who taught religion. See Our Lady of

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

2061-2062 (2020).

This Court has therefore already interpreted the

protections of the Free Exercise Clause, like the

protections of the Establishment Clause, by using

historical practices and understandings to determine

what modern-day practices are protected. That

reflects the simple reality that “[t]he free exercise

clause cannot be understood or appreciated without

knowing what happened before.” Michael W.

McConnell, The Origins and Historical Understanding

of Free Exercise of Religion, 103 Harv. L. Rev. 1409,

1421 (1990).

Here, TDCJ has imposed a flat ban on historical

religious practices known to the Founders and

practiced in one form or another ever since. And just

as restrictions on the ability to engage in religious

rituals, to direct the religious upbringing of one’s

children, or to gather for communal worship must

undergo strict scrutiny, so too must a restriction on a

free exercise protection honored by the Founders

themselves. See Church of the Lukumi Babalu Aye v.

City of Hialeah, 508 U.S. 520 (1993); Wisconsin v.

Yoder, 406 U.S. 205 (1972); Agudath Israel of Am. v.

Cuomo, 141 S.Ct. 889 (2020); Roman Catholic Diocese

of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020); Tandon v.

Newsom, 141 S.Ct. 1294 (2021).

This outcome does not disturb cases like Turner v.

Safley, 482 U.S. 78 (1987) (inmate marriages and

inmate-to-inmate correspondence) or O’Lone v. Estate

23

of Shabazz, 482 U.S. 342 (1987) (return from offsite

work location at midday for communal inmate

worship). As in Town of Greece, “[a]ny test the Court

adopts must acknowledge a practice that was accepted

by the Framers and has withstood the critical scrutiny

of time and political change.” Town of Greece, 572 U.S.

at 577. And to the extent that “formal doctrine seems

to have strayed from the fundamental values of the

constitutional provision” “[h]istory plays an especially

important role in constitutional interpretation[.]”

Michael W. McConnell, Reflections on Hosanna-Tabor,

35 Harv. J.L. & Pub. Pol’y 821, 827 (2012). Thus, if a

particular test suggests that ancient practices wellknown to the Framers—such as audible clergy prayer

and clergy touch—would be unprotected, “it is time to

look back and seek guidance from history.” Id. at 827828.

Employment Division v. Smith, 494 U.S. 872 (1990)

is also not at issue. The rule of Smith does not apply

to restrictions that “target[ ] religious conduct for

distinctive treatment.” Lukumi, 508 U.S. at 534, 546.

Here, TDCJ’s bans on audible clergy prayer and clergy

touch at the time of execution are directed solely at

religious practices, and thus by definition do not come

within the rule of Smith.

II. Denying audible clergy prayer and clergy

touch also triggers strict scrutiny under

RLUIPA.

There is an independent reason that TDCJ must

allow both audible clergy prayer and clergy touch:

RLUIPA. RLUIPA “provide[s] very broad protection

for religious liberty.” Holt, 574 U.S. at 356 (quoting

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693

(2014)). It safeguards “any exercise of religion,

24

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

religious belief.” 42 U.S.C. 2000cc-5(7)(A). To that end,

RLUIPA requires strict scrutiny here. See 42 U.S.C.

2000cc-1(a).

Indeed, this Court’s past emergency-docket cases

on death-chamber clergy access have already

considered this question under RLUIPA. See Dunn,

141 S.Ct. 725; Gutierrez v. Saenz, 141 S.Ct. 1260

(2021); Murphy, 139 S.Ct. at 1475. In each of those

cases, the Court ruled for the prisoner. It should be no

different here.

Here there can be little question that TDCJ’s policy

substantially burdens Ramirez’s religious exercise of

preparing to meet his Maker by receiving audible

clergy prayer and clergy touch. Ramirez requests

Pastor Moore to be present at his execution “to pray

with him and provide spiritual comfort and guidance

in [his] final moments.” 2d Am. Compl., ECF 12 ¶ 22

(Aug. 22, 2021). Consistent with Christian tradition,

Ramirez believes that the presence of his pastor in

those moments “will help him” prepare for life after

death. Murphy, 139 S.Ct. at 1484 (Alito, J.,

dissenting). The district court acknowledged that

“Ramirez’s pleadings do not give any reason to doubt

his sincerely held religious beliefs.” Pet.App.23. So

flatly prohibiting Ramirez from these forms of access

to his pastor in the execution chamber is, by definition,

a substantial burden under RLUIPA. See Yellowbear

v. Lampert, 741 F.3d 48, 56 (10th Cir. 2014) (Gorsuch,

J.) (noting that “flatly prohibiting Mr. Yellowbear from

participating in an activity motivated by a sincerely

held religious belief” imposes substantial burden).

Strict scrutiny

RLUIPA as well.

is therefore triggered

under

25

III. TDCJ cannot make out a successful strict

scrutiny affirmative defense under either

the Free Exercise Clause or RLUIPA.

Because Ramirez has made out his case with

respect to both the Free Exercise Clause and RLUIPA,

the burden of proof shifts to TDCJ to prove, as an

affirmative defense, that its bans on audible clergy

prayer and clergy touch withstand strict scrutiny.

1. TDCJ cannot satisfy that “exceptionally

demanding” standard here. Holt, 574 U.S. at 364.

Where strict scrutiny applies, “so long as the

government can achieve its interests in a manner that

does not burden religion, it must do so.” Fulton v. City

of Philadelphia, 141 S.Ct. 1868, 1881 (2021). And that

burden is measured with reference to the plaintiff

alone; rather than rely on “broadly formulated

interests,” courts must “‘scrutinize[ ] the asserted

harm of granting specific exemptions to particular

religious claimants.’” Ibid. (quoting Gonzales v. O

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

418, 431 (2006)). And where other “well-run

institutions” are achieving the relevant interest while

burdening religion to a lesser degree, TDCJ must “at

a minimum, offer persuasive reasons why it believes

that it must take a different course.” Holt, 574 U.S. at

368-369; see also Dunn, 141 S.Ct. at 725 (Kagan, J.,

concurring) (“past practice, in Alabama and

elsewhere,” demonstrated that religious practice could

be accommodated safely).

As a result, this Court has explained, “if a less

restrictive means is available for the Government to

achieve its goals, the Government must use it,” or

otherwise “prove that it could not adopt the less

restrictive alternative.” Holt, 574 U.S. at 365 (cleaned

26

up). And in making that showing, “[i]t is the

government’s burden to show [other jurisdictions’]

alternative[s] won’t work.” Mast v. Fillmore County,

141 S.Ct. 2430, 2433 (2021) (Gorsuch, J., concurring)

(“lower courts failed to give sufficient weight to rules

in other jurisdictions”). In other contexts, the Court

has observed that a failure to address other

jurisdictions’ tailored practices fails even intermediate

scrutiny, see McCullen v. Coakley, 573 U.S. 464, 490

(2014), let alone strict scrutiny. Indeed, an indication

that “many” accommodations have been safely granted

by other jurisdictions “suggests that [a prison system]

could satisfy its security concerns through a means

less restrictive than denying petitioner the exemption

he seeks.” Holt, 574 U.S. at 368-369. The government

defendant must, “at a minimum, offer persuasive

reasons why it believes that it must take a different

course” from other “well-run institutions.” Id. at 369.

By the same logic, TDCJ must offer persuasive

reasons why it must differ from a practice with a long

historical foundation. When a practice has a wellestablished history of workability, the onus is on the

state to demonstrate that circumstances have changed

and that there is a meaningful difference between the

religious accommodation sought today and similar

historical accommodations.

2. Here, TDCJ swims against an overwhelming

tide: it must affirmatively distinguish other

jurisdictions’ past and present practices, which have

safely allowed audible prayer and clergy touch as part

of spiritual guidance in the execution chamber. This it

cannot do. Indeed, Alabama—the other State that

recently sought to ban clergy from the death

chamber—has now agreed to allow audible clergy

27

prayer, clergy touch, and even anointing with oil in the

death chamber. If the Alabama Department of

Corrections can do it, then TDCJ must explain why it

can’t. See Holt, 574 U.S. at 364.

Moreover, under Holt, TDCJ must also

affirmatively distinguish its own pre-Murphy policies

and practices, which for decades allowed audible

prayer and physical touch by in-chamber clergy—

including at times “outsiders”—without incident. See

Reavis, Charlie Brooks’ Last Words. And courts

applying RLUIPA have found that prisons lack a

compelling interest in banning practices they

previously permitted. See, e.g., Spratt v. Rhode Island

Dep’t of Corr., 482 F.3d 33, 39 (1st Cir. 2007) (prison

lacked compelling interest in banning preaching that

it previously allowed).

If anything, changes in circumstances from

historical practices make accommodation easier, not

harder. Lethal injection in the tightly-controlled

Huntsville death chamber is far less likely to be

disrupted than were, say, hangings at the Tyburn

Gallows by those who “crowd[ed] in thousands to the

legal massacre.” Samuel Johnson, The necessity of

proportioning punishments to crimes, The Rambler,

No. 114, April 20, 1751, reprinted in 4 Boswell’s Life of

Johnson 188 n.3 (George Birkbeck Hill & L. F. Powell

eds., Oxford 1934). Yet clergy had full access across a

wide variety of historic scenarios that were far less

secure than Huntsville.

3. TDCJ says Pastor Moore, a Southern Baptist

minister, “poses a greater risk” than other prison staff

because he “is an outside spiritual advisor.” TDCJ

C.A. Br. 26. This argument is wrong on both the law

and the facts. With respect to the law, TDCJ made the

28

same argument in Murphy, but the Court nevertheless

ordered that TDCJ provide access to what TDCJ

would call an “outside” Buddhist spiritual advisor. 139

S.Ct. at 1475. The argument also proves too much:

because the number of religions represented by TDCJemployed chaplains is necessarily limited, excluding

“outside” clergy would discriminate against prisoners

of minority religions. The answer therefore is not to

“level down” by excluding all clergy, but to “level up”

by including properly-vetted spiritual advisors, even if

they are from the “outside.”

The “outsider” argument also has a faulty factual

premise. Pastor Moore has visited Ramirez since 2016

to provide counseling and spiritual advice. TDCJ has

thus known and interacted with Pastor Moore for over

five years. Yet TDCJ has not explained why a

Southern Baptist pastor, who has served inmates

within TDCJ facilities for half a decade, poses a risk

and undermines its goal to ensure “that the execution

occurs without any complications, distractions, or

disruptions.” Murphy, 139 S.Ct. at 1475-1476. TDCJ’s

late-breaking concern that Pastor Moore is from the

“outside” “does not justify [TDCJ’s] categorical bar.

[TDCJ] can take any number of measures to ensure

that a clergy member will act responsibly during an

execution. * * * What [TDCJ] cannot do, consistent

with strict scrutiny, is simply presume that every

clergy member will be untrustworthy—or otherwise

said, that only the harshest restriction can work.”

Dunn, 141 S.Ct. at 726 (Kagan, J., concurring) (citing

29

Holt, 574 U.S. at 369). 7

Moreover, other jurisdictions under the same

constraints allow “outside” ministers. Alabama is

allowing Willie Smith’s minister to be with him for the

execution, and the Bureau of Prisons has done the

same. See Smith v. Commissioner, 844 F.App’x 286,

292 (11th Cir. 2021) (noting BOP “has allowed the

spiritual advisor of the prisoner’s choice to be present

in the execution chamber” without “disruption or

disturbance” following a “background check”), motion

to vacate denied, Dunn, 141 S.Ct. 725. Allowing

“outside” clergy is therefore feasible.

On the long view, Ramirez is not requesting

anything unusual. Prior to 2019, TDCJ would

normally have provided audible clergy prayer and

clergy touch from a Christian pastor, or from a Muslim

chaplain. But now that TDCJ—beginning with

Murphy’s request for Buddhist prayer—has ventured

down the path of trying to restrict these ancient

religious practices, the First Amendment and RLUIPA

come to bear. And it could not be clearer from a

historical point of view that the Free Exercise Clause

protects those religious exercises—even, and in fact

especially, for the condemned.

TDCJ never explains why someone on TDCJ’s payroll—

as opposed to a contract chaplain or a volunteer spiritual

advisor—would be more concerned about the penalties for

disruption. Surely the paycheck cannot be the difference,

especially where interference would be a crime. See Tex.

Penal Code § 38.15 (crime to “interrupt[ ] , disrupt[ ] ,

impede[ ] , or otherwise interfere[ ] with” peace officer

carrying out duties).

7

30

IV. The Court can and should grant conditional

relief to Ramirez.

The Court has asked the parties to address “the

type of equitable relief petitioner is seeking, the

appropriate standard for this relief, and whether that

standard has been met here.” Order, No. 21-5592

(Sept. 10, 2021). Amicus suggests that the Court

consider these questions in light of the historical

bounds of equitable relief, and specifically the ancient

equitable remedy of conditional injunctive relief. In

particular, historical understandings of equity

indicate that this Court—and the lower courts—have

the power to grant conditional relief to Ramirez. That

history demonstrates that the Court can prohibit

TDCJ from conducting the execution unless it affords

Ramirez audible clergy prayer and clergy touch at the

time of execution.

“The Judiciary Act of 1789 conferred on the federal

courts jurisdiction over all suits in equity.” Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318 (1999) (cleaned up). Although

“equity is flexible,” “that flexibility is confined within

the broad boundaries of traditional equitable relief.”

Id. at 322. Accordingly, across many domains this

Court routinely looks to “traditional principles of

equity practice” to determine the scope of its equitable

powers. Taggart v. Lorenzen, 139 S.Ct. 1795, 1801

(2019) (contempt); see also, e.g., Liu v. SEC, 140 S.Ct.

1936, 1942 (2020) (traditional equity determines scope

of equitable remedy); Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 678 (2014) (traditional

equity determines scope of equitable defense).

Conditional decrees fall squarely within the federal

courts’ jurisdiction. They are a centuries-old feature of

31

equity and provide a useful way for the courts to

fashion relief that balances competing equities. See

John Norton Pomeroy, 1 Pomeroy’s Equity

Jurisprudence § 385 at 636-638 (3d ed. 1905); Samuel

L. Bray, Remedies, Meet Economics; Economics, Meet

Remedies, 38 Oxford J. of Legal Studies 71, 77-78 &

nn.47-49 (2018).

Conditional relief is rooted in the maxim of equity

that “[t]hose who seek equity must do equity.” John D.

Heydon, Mark J. Leeming & P.G. Turner, Meagher,

Gummow & Lehane’s Equity: Doctrines & Remedies

§ 3-050, at 74 (5th ed. 2015). It is a commonplace of

equity that conditions may be imposed upon a plaintiff

in equity: “The general principle is stated this way by

the leading equity treatise: ‘If the decree is to be final,

equity may impose any condition on the plaintiff that

will protect the legal or equitable rights of the

defendant as the price of granting relief.’” Bray, 38

Oxford J. of Legal Studies at 77-78 (quoting Heydon et

al., § 3-050–§ 3-070 at 74-77). Importantly, however,

courts of equity may also impose conditions on

defendants in equity who seek to defeat an equitable

claim. See, e.g., Lindsey v. Clark, 69 S.E.2d 342, 345

(Va. 1952), discussed in Ames, Chafee & Re on

Remedies: Cases and Materials 609-611 (Emily

Sherwin & Samuel L. Bray, eds., 3d ed. 2019)

(upholding decree imposing conditions on both

plaintiff and defendant).

The Court has already issued such an order in a

prior prisoner clergy access case involving TDCJ,

ruling that “The State may not carry out Murphy’s

execution pending the timely filing and disposition of

a petition for a writ of certiorari unless the State

permits Murphy’s Buddhist spiritual advisor or

32

another Buddhist reverend of the State’s choosing to

accompany Murphy in the execution chamber during

the execution.” Murphy, 139 S.Ct. at 1475 (emphasis

added). It is thus entirely appropriate for the Court (or

a lower court) to issue a similar order in this case.

That said, it is worth reemphasizing that the

principle of “do[ing] equity” operates on both plaintiffs

and defendants. That means that plaintiffs under a

sentence of death who seek equitable relief with

respect to clergy access must do so with clean hands,

and not for the purpose of delay or manipulation. See

Hill v. McDonough, 547 U.S. 573, 584-585 (2006). A

court can therefore deny conditional relief with respect

to clergy access if it finds that the timing of the motion

seeking relief was designed to delay or manipulate. Id.

at 584.

Here, however, it is TDCJ that is unable to say that

it has done equity. In particular, the August 19 letter

announcing the no-audible-prayer rule just 19 days

before the scheduled execution date is itself a form of

manipulation that constitutes unclean hands. TDCJ’s

equitable defenses should be rejected on that ground

alone. For his part, Ramirez has sought relief with

respect to both audible clergy prayer and clergy touch

in a timely fashion, particularly given TDCJ’s actions.

Having done equity to seek equity, he should be

granted conditional relief.

CONCLUSION

The decision below should be reversed.

33

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

LORI H. WINDHAM

CHRIS PAGLIARELLA

DANIEL L. CHEN

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Penn. Ave., NW

Suite 400

Washington, DC 20006

(202) 955-0095

erassbach@becketlaw.org

MICHAEL W. MCCONNELL

559 Nathan Abbott Way

Stanford, CA 94305

JOSHUA C. MCDANIEL

JAMES A. SONNE

HARVARD LAW SCHOOL

RELIGIOUS FREEDOM CLINIC

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Cambridge, MA 02138