Bench Memos

Law & the Courts

This Dog Won’t Hunt: Texas’s Wrong-headed Argument against Clergy for the Condemned

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The state of Texas is a firm friend of religious liberty, as it has demonstrated over and over again on issues ranging from preserving Native-American religious practices to protecting the ability of Catholic schools to choose their religion teachers without government interference, to ensuring the ability to worship during the time of pandemic. Few states have as proud a record.

But Texas’s otherwise stellar religious-liberty record suffers from one black mark: prisons. Over the years, our firm, The Becket Fund for Religious Liberty, has been opposed to Texas in prisoner religious-liberty cases involving access to communion for a Greek Orthodox prisoner, access to kosher food for observant Jewish prisoners, and, most recently, access to clergy for prisoners condemned to death.

That last issue is back before the Supreme Court this week in Gutierrez v. Saenz. The case is a follow-on to Murphy v. Collier, which Texas lost at the Supreme Court in 2019, when the Court held that where Texas allowed Christian and Muslim chaplains to accompany a condemned prisoner in his final moments, a condemned Buddhist prisoner had to be allowed access to clergy, too. Our firm filed an amicus brief urging the Supreme Court to recognize the ancient tradition — one well-known to the Framers of our Constitution — of giving access to clergy in the final moments before the State puts a man to death.

In response to its loss in Murphy, the Texas prison system — the Texas Department of Criminal Justice (TDCJ) — doubled down, eliminating clergy access for condemned prisoners of all religions. Texas then said that a condemned Catholic prisoner, Ruben Gutierrez, could not be accompanied by a spiritual adviser in the death chamber. Gutierrez challenged this ruling, arguing that the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA) required TDCJ to allow him access to clergy in his final moments. In June 2020, the Gutierrez case resulted in another loss for TDCJ, with the Supreme Court staying Gutierrez’s execution and sending the case back to the district court for factfinding about “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.”

After taking evidence, in November the district court made its findings, concluding that Texas had no compelling interest in preventing access to clergy, particularly since it had long allowed clergy in the execution chamber and there was no real reason to categorically exclude them now (other than having lost Murphy v. Collier).

The case is now set to be discussed again by the justices at this Friday’s conference. There are two reasons the Supreme Court should order Texas to allow chaplains in the death chamber.

The first is that Texas has already demonstrated that it can allow chaplains in the death chamber because it did so for decades before the loss in Murphy v. Collier. That is proof enough that Texas knows how to safely accommodate religion at the hour of death.

In response to this long history, Texas argues that accommodating future, entirely hypothetical chaplain requests, particularly relating to spiritual advisers not employed by the State, could be difficult. But when it comes to religious-freedom claims, speculation about the future cannot defeat a clear and unambiguous history of workable accommodation. For example, courts have rejected deference to state estimates of kosher-food-program costs that bore no relationship to real-world results (also a Becket case), or assertions that Native American sweat-lodge practices long supported without “a hint of trouble” (in the words of then-Judge Gorsuch) suddenly posed a danger.

The second reason the Court should rule in favor of allowing access to clergy is that Texas has not shown that accommodating Gutierrez specifically would cause it any problems. Indeed, Gutierrez is asking for Texas’s existing Christian chaplains to accompany him into the death chamber, just as they did for many prisoners in the past.

Texas ignores Gutierrez’s specific accommodation request, arguing that accommodating other potential prisoners might require it to train spiritual advisers who are not TDCJ employees, and that one of those advisers — even if vetted, trained, and supervised — might disrupt the execution. But this runs counter to the fundamental rule in religious-liberty litigation that accommodations are made on a case-by-case basis, not dispensed in gross. In Gonzales v. O Centro Beneficente Uniao do Vegetal, the Supreme Court dismissed this argument as “echo[ing] the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” This it contrasted with the “case-by-case consideration” required by statutes like RLUIPA. Indeed, just a few years after O Centro, the Court reiterated the point in its main RLUIPA prisoner case to date, Holt v. Hobbs, where the Becket Fund represented the Muslim prisoner plaintiff. As Justice Alito explained for a unanimous Court, RLUIPA looks to the “marginal interest in enforcing” the policy against the specific claimant.

Put more generally, our civil-rights laws — and the Free Exercise Clause — treat religious claimants not as mere examples of a policy, but as unique persons vindicating their individual rights. The case-by-case protection these laws afford is thus narrow but deep. The Court should take the opportunity presented by Gutierrez to reiterate that point and rule for clergy access for the condemned.

If the Court rules in favor of clergy in the death chamber, one also hopes that TDCJ will take the hint and stop fighting. Our experience is that litigation over seemingly simple religious accommodations is driven by TDCJ’s unwillingness to accommodate religion, even when the law says it must do so. Should the Court rule for Gutierrez, it would send a message to TDCJ and other government bodies that religious accommodations should be a first, not a last, resort.


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