The State of Texas had planned to put Patrick Murphy to death at 6 p.m. CST on Thursday night, but that deadline came and went while the Supreme Court considered a last-minute appeal.
First one hour, then two. Finally, two and half hours after the scheduled start time, the Supreme Court stopped the execution altogether. Why? Because the Supreme Court said that Texas had to let Murphy’s priest, Buddhist minister Rev. Hui-Yong Shih, accompany him in his final moments in the execution chamber.
This was a remarkable result. Almost every execution in this country is preceded by last-minute appeals to the Supreme Court, which denies them routinely. But the result was even more remarkable because it seemed to be a reversal from a decision last month in Dunn v. Ray, where a Muslim prisoner sought to have an imam beside him in the execution chamber.
How can we make sense of these seemingly opposite results?
The ACLU says the Court is demonstrating anti-Muslim bias. But that explanation doesn’t wash. The Supreme Court has a strong record of protecting Muslim religious liberty, and Muslim prisoners specifically. Just four years ago, my law firm, the Becket Fund for Religious Liberty, won a major religious freedom case before the Court, Holt v. Hobbs, a unanimous decision for a Muslim prisoner who wanted to grow a beard. And shortly after that, the Supreme Court ruled for a Muslim woman denied a job by Abercrombie & Fitch because she wore a hijab.
Others say it’s timing. The court cited delay as a reason for not addressing the actual rights and wrongs in the Muslim prisoner’s case. Justice Brett Kavanaugh specifically said he viewed the Buddhist’s request as timely. But as law professor Ilya Somin noted, Murphy waited 15 days to file for relief after his initial request for his reverend was denied. Ray, the Muslim inmate, waited only 5 days. So it’s hard to credit that reason either.
Others propose shame, or at least regret. Because the court was criticized after ruling against the Muslim prisoner in Alabama, it supposedly decided to flip under pressure. Indeed, we at Becket were among those who criticized the ruling as contrary to the basic religious rights of the condemned. But the Supreme Court is used to scathing criticism, that’s part of the job, and the ruling got relatively little attention in the frenetic Trump-era news cycle.
The best answer? Legal arguments still matter, and lawyers have to give the justices the facts and arguments they needed to make the right decisions. Unfortunately, the Ray case was briefed the wrong way by his attorneys.
First, Ray’s attorneys argued the religious liberty issues as a question of separation of church and state. If that sounds odd, that’s because it is. The most natural way to think about the right of a condemned man to walk the last mile with his priest is as an exercise of that man’s religion, not as separation of church and state. In Murphy, the court had that argument before them. In Ray, they didn’t.
Second, Ray’s attorneys were engaged in what might have looked like last-minute death penalty gamesmanship, seeking a stay by any means necessary. By contrast, in Murphy’s case, the court had arguments before it that disentangled the death penalty issues from the core principle of religious freedom.
The proof is in the Supreme Court’s own decision. First, following our arguments, the Supreme Court said the execution could still go forward, but only if “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.” Second, in his concurring opinion, Justice Kavanaugh relied on Free Exercise Clause cases, not the separation of church and state.
This result is good news, and not just for Murphy. It is good news for religious liberty. And it is good news for our courts. The truth is that we still have a judiciary that is persuaded first and foremost by arguments and principles. And when the issues are fraught and the law is murky, presenting the right arguments can make all the difference.
Eric Rassbach is vice president at the Becket Fund for Religious Liberty.
