Just about one month after the U.S. Supreme Court permitted Domineque Ray, a Muslim prisoner, to be executed without his minister being present, the Court stopped another execution where a prisoner was denied the presence of his spiritual advisor.
In Murphy v. Collier, 587 U. S. ____ (2019), the Court stayed the execution of Patrick Murphy by the state of Texas, declaring that the state “may not carry out Murphy’s execution” unless the state “permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the [s]tate’s choosing to accompany Murphy in the execution chamber during the execution.”
Under current Texas policy, a Christian or Muslim inmate may 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.
The Court was troubled by that policy and issued the stay. (Justices Thomas and Gorsuch said that they would deny Murphy’s application for a stay.)
Interestingly, Justice Kavanaugh concurred in the grant of Murphy’s application for a stay and wrote a short opinion. He explained that “governmental discrimination against religion – in particular, discrimination against religious persons, religious organizations, and religious speech – violates the Constitution.” The government, Justice Kavanaugh continued, “may not discriminate against religion generally or against particular religious denominations.”
Justice Kavanaugh declared that the Texas policy amounted to “denominational discrimination” and violated the Constitution. What Texas “may not do,” Justice Kavanaugh said, “is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”
It’s worth noting that Justice Kavanaugh found that Murphy made his request for his minister to be present with him in the execution room “in a sufficiently timely manner” for it to be considered by the state and the courts, unlike what the Court concluded last month in Ray’s case.