The Supreme Court grants a Buddhist’s plea for a spiritual adviser at his execution

By S.M. | NEW YORK

ON MARCH 28th, hours before Texas was set to kill Patrick Murphy, a Buddhist murder convict, by lethal injection, the Supreme Court called off the execution. In a brief order, the court barred Texas from carrying out the punishment “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”. Justices Neil Gorsuch and Clarence Thomas voted against halting the execution, as they did in a strikingly similar case last month when a Muslim inmate in Alabama had requested an imam at his execution. But with little explanation, three conservative justices—Samuel Alito, Brett Kavanaugh and John Roberts, the chief—switched sides and voted with their liberal colleagues to grant the death-row inmate’s wish.

Mr Murphy’s path to the Supreme Court began five weeks ago, when he told his lawyer he wanted his spiritual adviser by his side to guide his recitation of a Buddhist chant during his execution. Rev. Hui-Yong Shih, the adviser, had ministered to Mr Murphy for six years and would help him find rebirth in “a place where he could work towards enlightenment”. But after the Texas Department of Criminal Justice (TDJC) was informed of the request on February 28th, Mr Murphy was rebuffed. Only the prison’s Christian chaplain could accompany him, the TDJC’s lawyer replied on March 5th. If Mr Murphy would prefer, he could pass on the Christian chaplain, but his Buddhist minister would not be permitted in the execution chamber. On March 7th, Mr Murphy’s lawyer responded to prison officials in an email. Any Buddhist minister will do, he told the TDJC, but Mr Murphy has a right to Buddhist clergy if Christian inmates are provided with clerics of their faith at their executions. He closed by noting his hope that “there is a solution to this issue short of litigation”.

This final missive went unanswered and litigation proceeded. Initially, Mr Murphy’s legal challenge went nowhere: his claim was rejected by two lower courts and by the Fifth Circuit Court of Appeals. The Texas rule regarding chaplains at executions, the Fifth Circuit held on March 27th, “has been in place since at least 2012 and is not ambiguous”. Mr Murphy’s lawyer is an “experienced death penalty litigator”, the ruling noted, “who knew, or should have known, about the policy well before the weeks immediately preceding the scheduled execution”. Then, referring to the fresh precedent of the Supreme Court’s order in Dunn v Ray, the Muslim inmate case from February, the Fifth Circuit denied Mr Murphy’s request as untimely.

Given the justices’ recent decision, it was something of a surprise when, on March 28th, the Supreme Court stepped to halt Mr Murphy's execution. In Murphy v Collier, the justices made no mention of their decision less than seven weeks ago to let Mr Ray die without an imam at his side. Six of the seven justices were silent on the reasoning for upending the Fifth Circuit’s ruling. Only Justice Kavanaugh, in a two-page concurring opinion signed by no other justice, laid out a case. “[G]overnmental discrimination against religion”, he wrote, “violates the constitution”. Citing several Supreme Court precedents, Justice Kavanaugh explained that, in his view, the First Amendment “prohibits such denominational discrimination” and requires Texas to handle all religious death-row inmates’ claims on an even-handed basis. The prison could bar all clergy from the execution room, he wrote, but it could not exclude clergy of some faiths while inviting others to kneel by the gurney.

Why did Justice Kavanaugh see Mr Murphy’s plea differently from that of Mr Ray? A brief footnote gestures toward a possible distinction. “Under all the circumstances of this case”, he wrote, “I conclude that Murphy made his request to the state in a sufficiently timely manner, one month before the scheduled execution”. But Justice Kavanaugh made no mention of his vote in Ray and did not explain why the lower courts were wrong to see Mr Murphy’s claim as belated. Even more mysterious was the silence of Justice Alito and Chief Justice Roberts, the other two jurists who snubbed Mr Ray while siding with Mr Murphy. They said nothing to justify their votes.

Four more voices could be heard in the background of the late-evening order on March 28th: those of the liberal justices who, in the Ray case, excoriated the five conservatives for their “profoundly wrong” decision. But Justice Elena Kagan, who wrote that blistering dissent, may have influenced her colleagues. Her contention last month that the court wrongly rejected Mr Ray’s claim “just so the state can meet its preferred execution date”—along with near-universal condemnation from commentators from left to right—may have changed enough minds to win Mr Murphy an equal right to spiritual guidance.