The Supreme Court on Thursday stayed the execution of a Texas inmate who had been a practicing Buddhist for about 10 years and whose request to have his Buddhist spiritual adviser accompany him inside the execution chamber had been denied.
The court ruled that Texas may not proceed with the execution of Patrick Murphy, convicted and sentenced to death for the murder of police officer Aubrey Hawkins nearly 20 years ago, “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.”
While I applaud this decision purely on the grounds of religious liberty, not all recent Supreme Court decisions have followed the same path.
The court made the decision to stay this execution and yet also opposed staying the execution of a Muslim man 5-4, with Justice Brett Kavanaugh aligning with the majority in lifting the request for the stay, in February.
In his concurring opinion posted Thursday, Kavanaugh wrote, “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.”
It’s interesting, in light of Kavanaugh’s opinion, to note the court’s decision when a Muslim inmate in Alabama asked for his imam at his side a mere 10 days before his execution. The court denied that stay. Justice Sonia Sotomayor vehemently dissented from that majority opinion, and I don’t see how her dissent is all that different from Kavanaugh’s majority opinion posted Thursday.
She called the court out for looking like it preferred one religion over another. She cited a previous case which said, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” and went on to write, “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.”
Granted, the Alabama inmate was cutting it close, and the issue of timing is certainly relevant and provides an element of complexity: The Supreme Court granted Murphy a stay 30 days out from his execution. Is that the magic number? If 10 days was too close to have any requests granted, is three days definitely too close? This seems unnecessarily arbitrary.
The First Amendment should retain its authority in all situations, but practically speaking, there are always procedures, particularly with something like an execution, already in place. In Alabama, only a Christian chaplain the prison employs can accompany a death row inmate to his last moments — likely because it’s simply the predominant faith there. This makes sense, but it doesn’t allow for rare exceptions such as the Muslim inmate who wanted an imam at his side. However, inmates are typically on death row for a long time and would feasibly have months, if not years, to attempt to change these policies at the state level.
Similarly, Murphy was denied a stay because the 5th Circuit said the prison already had established rules about which spiritual advisers could accompany someone inside the execution chamber, and Murphy, a Buddhist for the last 10 years, knew this. In Texas, Christians or Muslims can have a state-employed Christian or Muslim religious adviser present, but inmates of other religious denominations can only have the adviser in the viewing room and not in the execution room. Texas officials said their policy was a matter of security: Random visitors can wreak all kinds of havoc, watching a live execution take place. This too makes sense and doesn’t seem like a guise for discrimination but rather a preference for order.
Both Murphy’s plea for a stay and the Muslim inmate’s plea in February appear to be a bit contrived — a last-ditch effort to make a statement about the Supreme Court’s complex relationship with religious liberty matters. That said, religious liberty for all in this country is the foundational building block upon which this country set its ideas about freedom.
In a poignant amicus brief, filed on behalf of Murphy, the Becket Fund for Religious Liberty referenced Les Miserables:
I don’t personally practice Islam or Buddhism, but I don’t entirely align with the Puritans who came here hundreds of years ago either. The value of the establishment clause specifically, and religious freedom generally, is that it applies to all Americans, regardless of belief or lack of belief.
There should be law and order and consistency, and cases like these last two executions make that difficult, but once we start cherry-picking faiths, we spit on the face of the ideas upon which this country was founded. So long as it does not interfere with the other freedoms of onlookers, I’d rather the Supreme Court, and the rest of us, err on the side of more religious freedom.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner‘s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
