US Supreme Court orders review of Texas ban on clergy at executions

The U.S. Supreme Court on Monday ordered a federal judge in Brownsville to determine the legality of a Texas policy change that bars clergy from accompanying death row inmates into the execution chamber.

The 2019 policy was challenged by inmate Ruben Gutierrez, a Roman Catholic who argues that the clergy ban violates his right to the free exercise of religion and a federal law that protects the religious practice of inmates.

In a one-paragraph order, the Supreme Court directed U.S. District Judge Hilda Tagle to analyze and rule on the claims raised by Gutierrez, who was sentenced to death in the 1998 murder of Brownsville's Escolastica Harrison, 85.

Gutierrez's case continues a high-stakes legal fight over the Texas policy on spiritual advisers in the Huntsville prison chamber where lethal injections are carried out.

The state had long allowed prison chaplains, all of whom were Christian or Muslim, to accompany death row inmates into the execution chamber. That changed in 2019 when inmate Patrick Murphy, a Buddhist, complained that the practice discriminated against prisoners of other faiths, and the Supreme Court halted Murphy's execution to consider his arguments.

At the time, Justice Brett Kavanaugh wrote that the state could fix the "denominational

discrimination" problem by letting inmates be accompanied by a clergy member of their choice, or by allowing spiritual advisers into the nearby viewing room but not the execution chamber.

Days later, Texas prison officials adopted the second choice, barring all clergy from the chamber.

Murphy remains on death row.

Under the policy announced in April 2019, clerics may visit an inmate between 3 and 4 p.m. on execution day, a time also set aside for visits with defense lawyers. The visits are conducted "through multiple layers of wire mesh that make it difficult to see the condemned," and at least four guards stand no more than 10 or 15 feet away, Gutierrez told the Supreme Court in a legal brief.

Gutierrez, 43, argued that the policy was changed for the convenience of prison administration in violation of federal law and the Constitution's First Amendment.

Defense lawyer Shawn Nolen said Gutierrez is a devout Catholic who needs the presence of clergy "to help him pass from life into afterlife."

"A condemned prisoner’s access to the comfort and guidance of a spiritual adviser at the time of his death is not a matter of convenience; it is a fundamental right," said Nolen, who added that Gutierrez maintains his innocence and will continue a separate legal fight for DNA testing of crime-scene evidence.

Lawyers for Texas Attorney General Ken Paxton argued that the need for security was the primary reason to ban outside clerics, allowing only Texas Department of Criminal Justice personnel into the execution chamber. 

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"There is no circumstance in which it would be safe for a non-TDCJ employee to be present in the execution room," state lawyers told the Supreme Court, adding that the high-pressure circumstances surrounding executions required the presence of only experienced security officers who had earned the "trust and confidence" of prison officials.

Conducting background checks, interviewing proposed spiritual advisers and confirming a prior relationship between inmate and outside clergy member also were considered and rejected as inadequate, state lawyers said.

Gutierrez, however, countered that although he would prefer an outside adviser, he would be fine with a Christian chaplain who is already on the prison staff.

Gutierrez had been scheduled to die June 16, but Tagle halted his execution June 9 in part over questions he had raised about the state's clergy ban.

Three days later, the 5th U.S. Circuit Court of Appeals overturned Tagle's stay of execution, and Gutierrez was hours from lethal injection before the Supreme Court stepped in, launching a review that prompted Tagle to submit initial findings in November that questioned the state's security concerns.

On Monday, the Supreme Court directed the judge to conduct a more thorough review of the state clergy ban, giving Tagle no deadline beyond ordering "prompt consideration" of Gutierrez's arguments.