The 5th Circuit Court of Appeals has upheld a stay of execution for death row inmate Patrick Murphy. Not because he is an innocent man, but because Murphy believes it’s his First Amendment right to have a Buddhist priest preside over his impending execution — and the court agrees.
The emergency ruling came just in time: Murphy’s execution was scheduled for Nov. 13. The state of Texas has refused Murphy’s request for a Buddhist spiritual adviser, citing their new policy that restricts all spiritual aides from all faiths from entering the death chamber to accompany an inmate (they are only allowed in the viewing room).
There are often pleas for stays of execution, typically on the charge of innocence. But the request to have a certain type of religious counselor at one’s side at the moment of death does happen too.
Last year, a Muslim man named Domineque Ray made a similar request at the last minute to have his Imam accompany him. The Supreme Court, in a five to four split, denied his request citing the fact that he had waited too long. This decision caused some outrage, and opponents claimed the decision was an example of racial and religious discrimination.
While the lower courts originally ruled that Murphy’s motion for a stay of execution was also made too late, the Supreme Court disagreed and Justice Kavanaugh granted the stay. Several justices, including Justice Alito, made the case Murphy’s claim was too late.
In Kavanaugh’s opinion back in March, he offered “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.”
In his dissent, Justice Alito wrote, “I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong.”
He explained why Murphy was sentenced to death to begin with, and the details are graphic and appalling:
Alito also essentially agreed with the lower court’s decision that Murphy’s request for a Buddhist spiritual adviser is “inexcusably dilatory litigation tactics.” A footnote read, “In my judgment, the tactics in this case are just as unjustified as those that led the Court to vacate a stay of execution a few weeks ago in Dunn v. Ray.”
To the average person, this all just seems like a dispute over how much religious freedom a person sentenced to death is entitled to, and what that looks like in a person’s final moments. Is every human being on death row allowed the right to have a spiritual adviser of his faith present in the room at the time of his execution and if not, is that a violation of his religious liberty?
Law professor and former federal prosecutor Arthur Rizer expressed his opinion on this to the Washington Examiner via email, noting his practical concerns:
On the other hand, religious liberty advocates vehemently believe this is Murphy’s right — and that it was Ray’s right as well, though the Supreme Court failed to grant his stay of execution.
Becket filed an amicus brief with the 5th Circuit, arguing that to execute Murphy without a Buddhist spiritual adviser present in the room would be a violation of his First Amendment rights. In an email, Eric Rassbach, legal counsel at Becket said, “Texas has doubled down on a misguided policy of banning clergy from the place they are needed most — the death chamber. Texas should repent of its decision and do what is right and what the Constitution demands.”
Though both cases are nuanced, I tend toward Alito’s dissent in the opinion granting Murphy the stay in March. Both Murphy and Ray seem to have waited until the last possible moment to request an adviser of their respective faiths, even though they were not recent converts.
Even though I am a staunch supporter of the principle that one religion or denomination not have preference over the other, it’s hard to understand how the original meaning of the Constitution could be interpreted to burden every single death row in every single state to accommodate every single religion.
Is the presence of a Christian spiritual adviser on death row but not an Imam the preference of one faith over another? Or is it simply a reflection of the fact that Christianity remains the predominant religion in America since its origin? For now, it remains to be seen when Murphy will be executed, and whether he will get his final wish to die with a Buddhist adviser present.
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.
