Sometimes, the sequel is markedly better than the original.
You may remember the hue and cry barely two months ago when the Supreme Court of the United States, in a 5-4 decision, denied an application from Domineque Ray, a Muslim inmate who was set for execution in Texas Alabama, to have his prison imam present with him in the death chamber in his final moments—just as Christian inmates could always be accompanied by a chaplain. Excoriating the majority, which relied on the alleged last-minute nature of the inmate’s prayer for relief, Justice Kagan wrote:
“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.
To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.
Which brings us to today. With his claims denied by the United States Court of Appeals for the 5th Circuit yesterday on the grounds of having been brought too late, Texas death row inmate Patrick Murphy sought a stay of his execution scheduled for tonight on similar grounds. He’s a practicing Buddhist; his priest would not be allowed to join him in his final moments.
And crucially, perhaps, the conservative Becket Fund for Religious Liberty also weighed in on his behalf, arguing that “The right of a condemned person to the comfort of clergy—and the rights of clergy to comfort the condemned—are among the longest-standing and most well-recognized forms of religious exercise known to civilization,” and that “The Founders would not have recognized a Free Exercise Clause that did not ensure a man’s last moments included the opportunity to make peace with his faith.”
The Supreme Court tonight sided with Murphy, 7-2, with Justices Thomas and Gorsuch dissenting. The Court’s order simply states:
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 another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.
In a concurring opinion, Justice Brett Kavanaugh—yeah, he’s still there—talked about the equality concerns guiding his vote:
As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution. The government may not discriminate against religion generally or against particular religious denominations….
In an equal-treatment case of this kind, the government ordinarily has its choice of remedy, so long as the remedy ensures equal treatment going forward. For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room. A State may choose a remedy in which it would allow religious advisers only into the viewing room and not the execution room because there are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.
In any event, the choice of remedy going forward is up to the State. What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.
In a footnote, he perhaps explains why this case was, for him, different than the Muslim case last month: “Under all the circumstances of this case, I conclude that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution.”
Whether the timing was the key difference, or the three conservatives who flipped (Kavanaugh, Roberts, Alito) just felt sufficiently shamed by Justice Kagan the last time, at least the Court reached the proper resolution this time.
