“Journalists really need to follow up on this crucial religious-liberty case,” our own tmatt wrote in February after the U.S. Supreme Court allowed the execution of a Muslim inmate. The big issue in that case was Alabama inmate Domineque Ray’s execution without a spiritual leader from his own faith at his side.
But last week, the high court granted a rare stay of execution for a Texas inmate as he was waiting in the death chamber. Justices ruled that the refusal of Texas to allow a Buddhist spiritual adviser to be present violated Patrick Murphy’s freedom of religion.
Wait, what gives?
Why let one inmate die and another live in such similar cases?
Such questions sound like perfect pegs for inquisitive journalists.
Speaking of which …
Robert Barnes, the Washington Post’s veteran Supreme Court reporter, points to the court’s newest justice:
It’s difficult to say with certainty why the Supreme Court on Thursday night stopped the execution of a Buddhist inmate in Texas because he was not allowed a spiritual adviser by his side, when last month it approved the execution of a Muslim inmate in Alabama under almost the exact circumstances.
But the obvious place to start is new Justice Brett M. Kavanaugh, who seemed to have a change of heart.
Kavanaugh on Thursday was the only justice to spell out his reasoning: Texas could not execute Patrick Murphy without his Buddhist adviser in the room because it allows Christian and Muslim inmates to have religious leaders by their sides.
“In my view, the Constitution prohibits such denominational discrimination,” Kavanaugh wrote.
But Kavanaugh was on the other side last month when Justice Elena Kagan and three other justices declared “profoundly wrong” Alabama’s decision to turn down Muslim Domineque Ray’s request for an imam to be at his execution, making available only a Christian chaplain.
“That treatment goes against the Establishment Clause’s core principle of denominational neutrality,” Kagan wrote then.
Keep reading, and the Post notes differences in how the inmates’ attorneys made their arguments:
The Becket Fund for Religious Liberty, which filed a brief on Murphy’s behalf, said it attempted to disentangle the religious liberty issue from the last-minute attempts to stop executions that irritate the court’s conservative majority.
“This particular appeal does not present a challenge to the constitutionality of the death penalty, nor is it a challenge to Texas’ execution of Murphy,” the brief argues. “This is instead a challenge to the conditions of Murphy’s confinement immediately prior to his execution.”
Becket’s First Amendment argument hinged on a point that often separates the court’s liberals and conservatives.
Ray’s lawyers, and the appeals court that at first held up his execution, said Alabama’s policy of employing only a Christian chaplain and making him the only cleric available at executions violates the prohibition on government endorsement of one religion over another.
Becket and Murphy’s lawyers argued that the constitutional right at issue was the inmate’s ability to practice his religion.
“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,” Becket’s brief said.
For more analysis, I recommend this Twitter thread by Eric Rassbach, a Becket attorney:
Click the link to see the entire thread. It’s certainly thought-provoking.
Meanwhile, The Associated Press also notes the timing question:
Kavanaugh said the state has two options going forward: allow all inmates to have a religious adviser of their religion in the execution room, or allow religious advisers only in the viewing room, not the execution room.
Robert Dunham, the head of the Death Penalty Information Center, said it’s possible something besides timing was considered by the justices.
“The more centrist conservatives on the court may have been stung by the overwhelming criticism they received from people across the political and religious and ideological spectrum” following Ray’s execution, he said.
It was not clear how many other inmates might find themselves in a similar situation. Only eight states, including Texas and Alabama, carried out executions last year.
But law professor James A. Sonne, whose Stanford clinic has studied the issue of chaplains’ presence at executions, said most of the 30 states with the death penalty allow a chaplain of the inmate’s choice to be present at the execution, though that doesn’t necessarily mean in the death chamber. He called Thursday’s ruling a “sea-change.”
Others speculate that perhaps negative publicity after the previous ruling influenced the latest decision, as Religion News Service’s Aysha Khan reports:
In a blog post last week, George Mason University law professor Ilya Somin suggested that the justices had likely heard the public outcry after they lifted the stay on Ray’s execution and sought to rectify their mistake.
The justices “belatedly realized they had made a mistake … that inflicted real damage on their and the Court’s reputations,” Somin wrote on Reason’s Volokh Conspiracy blog. “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.”
Georgetown University law professor Marty Lederman, who focuses on constitutional law, and lawyer Deepak Gupta, who has represented several plaintiffs before the court, agreed that public opinion likely had some sway.
“The wholly justified, across-the-board condemnation of the SCOTUS’s indifference to religious discrimination in the execution chamber last month obviously had an impact,” Lederman wrote in a tweet.
“This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error,” Gupta wrote in another. “Is the Alabama case materially different? They don’t say.”
Kudos to the journalists who are asking crucial questions and delving into the seeming conflict in the courts’ decisions.
It would be interesting to see a national story outline the policies of all 30 states that have the death penalty: How, if at all, does the most recent ruling affect their approaches? Are religious liberty advocates comfortable with their policies?
Here’s betting that there’s an interesting story there.