The Supreme Court agreed Thursday night to halt the execution of a Texas inmate, Patrick Henry Murphy, after he argued that the state was refusing to allow his Buddhist spiritual adviser to accompany him into the chamber.
“The State may not carry out Murphy’s execution,” the court said in an unsigned order, “unless the State permits Murphy’s Buddhist spiritual adviser or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”
Justices Clarence Thomas and Neil Gorsuch would have denied the stay.
Justice Brett Kavanaugh wrote to explain why he voted to grant the application.
“The government may not discriminate against religion generally or against particular religious denominations,” Kavanaugh wrote.
The case marks the second time in recent weeks that the justices have been asked to put an execution on hold because a prison policy allows Christian or Muslim chaplains who are prison employees to be present, but not advisers of other religions. The prison forbids advisers of other denominations who are not prison employees into the chamber out of security concerns.
The cases pit an inmate’s claims of religious liberty against prison officials who say the requests are meritless and simply last-ditch attempts to avoid execution.
Murphy, on death row for the murder of police officer Aubrey Hawkins in 2000, was scheduled to die at 7 p.m. ET on Thursday, but the court stayed the execution after 9 p.m. In a flurry of last-minute petitions, lawyers for Murphy said the state violated his religious liberty because it blocked the Rev. Hui-Yong Shih from being present in the execution chamber.
Back in February, in a strikingly similar case out of Alabama, a deeply divided Supreme Court split 5-4 and allowed the execution of an inmate, Domineque Ray, go forward despite the fact that Ray argued that his religious freedom rights were violated when the prison barred his imam from being present at the execution.
The Alabama prison only employed a Christian chaplain. The conservatives on the court said they acted because Ray had waited too long to seek review.
But Justice Elena Kagan wrote a scathing dissent, joined by the three other liberal justices on the bench, calling the majority’s move “profoundly wrong.”
“Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death,” Kagan wrote, saying that the treatment “goes against the Establishment Clause’s core principle of denominational neutrality.” She said her colleagues in the majority should have allowed the lower court to hear the claim in full.
Supporters of religious liberty also heavily criticized the Conservatives’ vote. Writing for the National Review, David French called it a “grave injustice.”
In explaining his vote in the Texas case Thursday night, Kavanaugh offered one reason – in a footnote – that might explain why he voted in favor of Murphy after he had cleared the way for Ray’s execution.
“I conclude that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution,” Kavanaugh wrote.
Kavanaugh also said that states had two options going forward: allow all inmates to have a religious adviser of their religion in the execution room or allow inmates to have a religious adviser, including a state-employed chaplain, only in the viewing room, not the execution room.
“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,” he said.
Texas Attorney General Ken Paxton had argued in briefs that the court should rule against the inmate because “he is dilatory, he fails to show likely success on the merits for a variety of reasons, he fails to show irreparable harm” and that the prison’s execution protocol that prohibits chaplains who are not employees from the execution chamber has been in place since July 2012. Paxton said the policy is meant to ensure the “safety and security” of the execution process.
The case prompted a friend of the court brief filed by the Becket Fund for Religious Liberty, a nonprofit law firm. Lead lawyer Eric Rassbach said he was filing the brief to “clarify the law” because he was concerned that the “time-compressed nature” of the appeal could “obscure” important religious liberty issues at stake, and that the justices were sure to face similar petitions in the future.
“The right of a condemned person to the comfort of clergy – and the rights of clergy to comfort the condemned – are among the longest-standing and most well-recognized forms of religious exercise known to civilization,” he wrote.
“Texas is no doubt capable of making this accommodation if required to do so,” Rassbach added.
After the court acted, Rassbach issued a statement. “Religious liberty won today,” he said. “The Supreme Court made it clear that the First Amendment applies to every American, no matter their faith.”