If there were any lingering doubts about the Supreme Court’s anti-blackness and Islamophobia, the recent decision to stay the execution of a Texas man who was denied a Buddhist spiritual adviser should put them to rest.
The Supreme Court ruled on Thursday to grant a stay on the execution of Patrick Henry Murphy unless the state permits his Buddhist spiritual adviser to be in the execution room with him.
In contrast, last month, when Alabama death row prisoner Domineque Ray, a black Muslim, appealed for a stay on his execution because the Alabama Department of Corrections would not allow him to have an Imam present in the death chamber, the Supreme Court vacated his appeal. Ray was later executed with his Imam viewing his death from an adjacent room.
Ray’s appeal was denied on a technicality. His initial petition to the warden was denied on January 23, 2019. Five days later, he filed a lawsuit in federal court. The Supreme Court said he waited too long.
When it came to Patrick Henry Murphy, a white death row prisoner who converted to Buddhism, Justice Brett Kavanaugh stated in part that, “As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution. The government may not discriminate against religion generally or against particular religious denominations.”
Kavanaugh goes on to say, “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.”
However, as Ray’s case reveals, this reading of the Constitution is selectively applied. For example, SCOTUS stated in Ray’s case that the plaintiff “has not made any showing that the State’s provisions for religious accommodations to death row inmates, which permit a prisoner to commune with his advisor up until the moment that he enters the execution chamber, amount to a ‘substantial burden.’”
This orientation toward Ray reveals something more blatantly sinister – namely that religious freedom in his case was determined by whether or not he had sufficiently articulated the lack of it as a burden, not whether or not he was entitled to religious freedom in the first place without qualification.
Moreover, what the two cases in contrast reveal, is that the issue of “process” and “procedure” used to deny Ray of a spiritual adviser in the death chamber was nothing more than a thinly-veiled disguise to the overt anti-blackness and Islamophobia at play. That’s why SCOTUS could unabashedly state in Murphy’s case that, “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.”
But the failure on the Court’s part to define “timely” raises serious doubts. What counts as “timely” when there appear to be no standard processes in place and no time periods designated to notify death row prisoners of what their final moments will look like and who will be there?
Furthermore, Ray’s case cannot be viewed in isolation. It must be considered in the context of other Islamophobic decisions – most recently, the Muslim Ban. Together, the two cases illustrate the question SCOTUS repeatedly seeks to answer when it comes to Muslims: that of how to restrict or deny religious freedom, rather than that of whether their religious freedom has been violated.
Moreover, what the Murphy case so poignantly reveals is the Court’s decided lack of concern over accusations of hypocrisy and bias against Muslims. The lesson here is that SCOTUS will likely continue granting religious freedom selectively – with scarcely any attempt to hide it.
Though Domineque Ray was executed with the knowledge that his religious freedom was conditional, many Muslims — including Ray’s Imam, Yusef Maisonet, who viewed the execution from a room adjacent to the death chamber — will continue to bear witness to this injustice. Preserving the notion that the United States upholds religious freedom means extending it to all, not some. But like other values the U.S. claims to hold, this one remains unfulfilled.
And in Ray’s case, it’s buried in a grave.
Dr. Maha Hilal is co-director of Justice for Muslims Collective, an organizer with Witness Against Torture, and a council member of School of the Americas Watch.