The Supreme Court on Thursday granted a death row inmate a stay of execution because he had been denied access to a Buddhist chaplain, changing course from its denial of a Muslim man who requested an imam in his execution chamber in February.
In an order late Thursday night, the court stayed the execution of Patrick Henry Murphy, convicted of shooting and killing a police officer while attempting escape from prison in Karnes County, Texas. Justices Clarence Thomas and Neil Gorsuch dissented from the order, saying they would have allowed the execution to proceed.
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Justice Brett Kavanaugh, however, joined Justices Roberts, Alito, and the court's liberal wing to block Murphy's execution.
"In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room," Kavanaugh wrote in a concurrence to the stay. "But inmates of other religious denominations—for example, Buddhist inmates such as Murphy—who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions. In my view, the Constitution prohibits such denominational discrimination."
He wrote that Texas could choose to deny any faith adviser access to the execution chamber—compelling them to wait outside in the viewing room—or it could allow all in, but it could not allow representatives of only some religions access to the chamber proper.
This concurrence marks yet another public statement in which Kavanaugh has gone out of his way to write explicitly in strong support of religious liberty under the First Amendment, making clear the newest justice's priorities. Kavanaugh's concurrence will likely garner praise from groups like the Becket Fund for Religious Liberty, a public interest law firm that filed an amicus curiae brief on behalf of Murphy.
But the stay for Murphy may also reflect the court responding to the uproar which surrounded its decision in February to permit the execution of Domineque Ray, a Muslim who was denied the attendance of an imam in the execution chamber. Ray, who was convicted of raping and killing a 15-year-old girl, was held at Alabama's Holman Correctional Facility prior to execution. The prison routinely permitted the presence of a Christian chaplain at executions, but denied Ray's request for similar religious accommodation.
Kavanaugh and his conservative colleagues concurred in the denial of relief to Ray because of the last-minute nature of his appeal for relief, which was filed less than a day before he was scheduled to be executed. But the court's left-wing dissented from the denial, with Justice Elena Kagan writing on behalf of her colleagues that the court was engaged in "an abuse of discretion," especially because Ray's final appeal had been filed just days after his initial request to have an imam was denied.
"‘The clearest command of the Establishment Clause,' this Court has held, ‘is that one religious denomination cannot be officially preferred over another,'" Kagan wrote. "But the State's policy does just that."
Ray's execution provoked outrage not just from those who usually oppose the decisions of the right wing of the court, but also from ideological allies. The Volokh Conspiracy's Ilya Somin described it as a "terrible decision," while National Review‘s David French called the denial "a grave violation of the First Amendment."
As French noted in his discussion, because the denial of Ray's appeal was reached on procedural grounds rather than the merits of the appeal itself, "the case doesn't negatively impact substantive constitutional law." Somin indicated in his writing on the Murphy decision that while it was also not technically on the merits, it "sends a strong signal to lower courts about how such religious discrimination cases should be resolved."
But, Somin noted, the idea that Murphy was spared because he filed his request in a timely fashion does not quite hold up, as he waited 15 days after denial compared to Ray's five. Some have interpreted this discrepancy as evidence of anti-Muslim bias on the part of the court's conservative wing (although, as Becket Fund attorney Eric Rassbach argued, the group has consistently ruled in favor of Muslims' religious liberty claims).
"A more likely reason, in my view," Somin wrote, "is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court's reputations. Presented with a chance to ‘correct' their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away."