Early last month, the Supreme Court permitted the state of Alabama to execute a Muslim inmate without his spiritual adviser present, even though the state permits Christian inmates to be accompanied by a Christian chaplain. The court’s 5-4 decision was widely derided across ideological lines. The National Review’s David French called it a “grave violation of the First Amendment.”
On Thursday evening, the court appears to have reversed course. Over the objections of Justice Clarence Thomas and Neil Gorsuch, the Court stayed Texas’ pending execution of a Buddhist inmate “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.” Texas permits Christian or Muslim inmates to have a spiritual adviser present, but not Buddhists.
The Supreme Court’s order in Murphy v. Collier is only a paragraph long. It is also temporary, lasting only until the court fully considers a petition asking it to give the case a full hearing. Often, the Supreme Court issues such stays when they intend to hear a case, and wish to maintain the status quo until the case can be brief, argued, and decided.
The full court also did not explain why it took a different approach to this case than it took very recently in Dunn v. Ray, the Muslim inmate case. As Justice Elena Kagan explained in her dissenting opinion in Ray, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
The court’s newest member, Brett Kavanaugh, did attach a brief concurring opinion which explains some of his thinking, although that opinion raises as many questions as it answers. In a footnote to his opinion, Kavanaugh writes that “under all the circumstances of this case, I conclude that Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution.”
It’s an odd footnote because, in Ray, the majority claimed that it denied relief to the Muslim inmate because “Ray waited until January 28, 2019 to seek relief” — just 10 days before the Supreme Court ultimately denied Ray the relief he sought. Kavanaugh apparently believes that the difference between 10 days and 30 is a big deal.
Yet, as Kagan noted in her dissent in Ray, the prison warden did not deny Ray’s request to have an imam present at his execution until January 23. Ray sought judicial relief as soon as he realistically could have.
So the question of why the inmate in Ray was denied relief and the inmate in Murphy was granted a stay remains unanswered. Perhaps the court’s conservative majority really does care that much about a matter of a few days. Perhaps the most cynical explanation is correct, and they just weren’t sympathetic to a Muslim inmate. Perhaps Kavanaugh realized that denying very basic relief to religious minorities while the court is tripping over itself to grant special rights to conservative Christians is a bad look. Or perhaps the backlash to the Ray decision had an impact on the consciences of several of the court’s conservative members, and they had a change in heart.
Whatever the explanation, Thursday’s order means that the Supreme Court will very likely give this case a full hearing. We will know soon why at least one man who denied relief to Mr. Ray suddenly got religion.