Last week, the Supreme Court stayed the execution of Buddhist inmate Patrick Henry Murphy, “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.” At the time, Texas’ prison policy allowed Christian or Muslim inmates to have a spiritual adviser present in the chamber, but did not afford the same treatment to Buddhists.
Rather than comply with the order, however, Texas announced on Wednesday that it would no longer permit spiritual advisers of any kind to be present during an execution.
#BREAKING After the recent stay granted to a death row inmate who wanted his Buddhist spiritual advisor in the execution chamber, Texas prisons have retooled their policy – to remove ALL chaplains from the execution chamber. h/t @TCADPdotORG pic.twitter.com/jIGjLaW0Ux
— Keri Blakinger (@keribla) April 3, 2019
As a matter of constitutional law, this swipe at Christians and Muslims is allowed. As Justice Elena Kagan explained in her dissenting opinion in a similar case, where the court’s conservative majority permitted a Muslim inmate to be executed without his imam present, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
Texas must treat people of all faiths the same. That permits them to treat people of all religions with equal cruelty.
But even if Texas has complied with the Constitution, they still must comply with the Supreme Court’s order, and that order clearly states that it may not execute Murphy, at least for now, unless they permit Murphy to have a spiritual adviser present.
In fairness, the court’s order in Murphy v. Collier does include a concurring opinion by Brett Kavanaugh arguing that the state complies with the Constitution if it only allows spiritual advisers in the viewing room near the execution chamber, so long as the state offers equal treatment to people of all faiths. And Kavanaugh is correct that, as a matter of law, equal treatment is all that the Constitution requires.
At the very least, however, Texas should have to petition the Supreme Court to lift its order if the state wishes to execute Murphy before that order expires. Kavanaugh’s opinion represents Brett Kavanaugh’s understanding of the law. It is not the view of the court itself.
Or, alternatively, Texas could decide not to punish Christians and Muslims just to spite this one Buddhist inmate.