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March 28, 2019

SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber

As reported in this local article, "hours after he was to be executed for his role in a notorious 19-year-old crime, Texas death row prisoner Patrick Murphy won a rare stay from the U.S. Supreme Court based on his request to have a Buddhist spiritual adviser next to him in the death chamber."  Here is more:

The condemned man, one of the last surviving members of the so-called 'Texas 7' crew of prison escapees, lobbed a long-shot bid for reprieve earlier this week when his attorneys raised religious discrimination claims, arguing that the converted Buddhist couldn't make it to the Pure Land for rebirth without a spiritual adviser present as he prepared to die.

But the regular prison chaplain is a Christian and, in light of that, the Texas prison system's refusal to accommodate Murphy's request could be a constitutional violation. "As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech— violates the Constitution," Justice Brett Kavanaugh wrote.

"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."

Two justices — Clarence Thomas and Neil Gorsuch — dissented, while Murphy's legal team celebrated the rare win.

"We are pleased the Supreme Court acknowledged both that Mr. Murphy, as a Buddhist, is entitled to be accompanied in the execution chamber during the execution by a minister of his own faith just as a Christian would be," Houston-based attorneys David Dow and Jeff Newberry said in a statement late Thursday.

But the late-breaking decision doesn't mean that Murphy can't be executed — it just means that he gets more time to argue his appeal, unless the Texas prison system instead chooses to resolve the issue by changing their protocols to allow Buddhists the same execution chamber religious rights as Christians.

Prison spokesman Jeremy Desel said the Texas Department of Criminal Justice legal team will "be reviewing the ruling" to figure out "what, if any, impact it will have."

The Supreme Court's ruling is available at this link, and here is the official statement from the Court:

The application for a stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is granted.  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.

Justice Kavanaugh decided to write a few paragraphs to explain his vote, and here is are a few sentences therefrom:

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.  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.

UPDATE: A number of commentors below and elsewhere have been discussing the notable difference in outcome between this case, where a dividied SCOTUS imposed a stay after the Fifth Circuit refused a stay, and Dunn v. Ray last month, where a divided SCOTUS lifted a lower court stay to allow an execution to go forward. Ilya Somin at The Volokh Conspiracy speaks to the parallels in this post, which concludes with these observations:

In my view, ... 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.

And, whatever can be said about the procedural question, it's a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one. Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.

March 28, 2019 at 11:57 PM | Permalink


hard to see what, other than bias, let this guy win but the muslim with the identical claim lose.

Posted by: hgd | Mar 29, 2019 9:13:18 AM

Difference appears to be timing of raising the claim. Which I guess begs the question of when is it appropriate for a death row inmate to raise the claim.

I am not sure that the inmate needs to request his spiritual adviser be permitted in the execution room prior to the appropriate entity scheduling the execution. After all, the inmate might win an appeal and never have an execution date set or he might change his religious beliefs while his appeals are pending. But I think that a state could reasonably establish a deadline for making any request that certain persons be permitted as witnesses or finalizing what denomination (if any) spiritual counsel the inmate wished to receive just prior to his execution.

More significant is Justice Kavanaugh's explanation of the remedy in these cases. His position -- which would probably have majority support -- would allow a state to simply restrict all spiritual advisers in the same manner. Given the security concerns present in these cases, I could see most states deciding to adopt that remedy.

Posted by: tmm | Mar 29, 2019 11:08:42 AM

The official difference is the timing of the request. I think the timing of the request in the previous case was reasonable, but I also think the court was upset about last minute requests in general and decided to set an example in that specific case. Either way, the specific timing here is better, which explains the difference.

There's also a clearer First Amendment violation here. The exemption for specific religions but not others is apparent discrimination on its face. The previous case seemed to be more of a RLUIPA case.

Posted by: Erik M | Mar 29, 2019 12:58:26 PM

It is precisely issues like this that make the system "expensive and dysfunctional" as highlighted in the post immediately above.

Posted by: William Jockusch | Mar 29, 2019 6:58:22 PM

Ilya Somin clearly has it right when she says:

"In my view, ... 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."

Discrimination, whether racial or religious should never be tolerated in the justice system.

As important an issue, though not raised by this appeal success, is the fact that this inmate has NOT committed murder, but was an escapee. He is trapped by the infamous Law of Parties with no question of direct involvement or intention to kill. If you can justify the death penalty for murder at all, and I of course think not, there is no way it can be justified for less.

Posted by: peter | Mar 30, 2019 8:19:27 AM

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