Death Penalty

Supreme Court Stays Execution in Death Penalty/Religious Liberty Case

The facts of this case are very similar to those of Dunn v. Ray, a recent ruling in which the Justice let the execution proceed, and thereby attracted a firestorm of criticism.

|The Volokh Conspiracy |

Earlier tonight, the Supreme Court stayed an execution in a Texas case in which the defendant, a Buddhist, was denied the right to have a Buddhist priest join him in the execution chamber, even though Christian and Muslim prisoners were allowed the company of spiritual advisers of the same faith, in like circumstances. The facts of Murphy v. Collier are very similar to those of Dunn v. Ray, a recent ruling in which the Court allowed an Alabama execution to go forward, even though the prisoner, a Muslim, was not allowed to have a Muslim imam in the execution chamber with him, while Christian prisoners were allowed to have a Christian minister present.

In Dunn, a 5-4 majority split along ideological lines allowed the execution to proceed on the grounds that Ray had filed his appeal too late, despite strong arguments in Justice Kagan's dissent, and in the lower court opinion by the US Court of Appeals for the Eleventh Circuit, that he had filed as fast as he could (arguments that the conservative majority did not even bother to try to rebut).

Dunn attracted harsh, widespread criticism from commentators across the political spectrum,both right and leftmyself included. The main point of contention was not over whether the majority got the case wrong, but whether they were motivated by anti-Muslim bigotry, or "merely" by frustration with what they considered to be excessive delays in death penalty cases (a common complaint of conservative jurists suspicious of anti-death penalty activists).

In Murphy, as in Ray, the state argued that the prisoner had filed his claim too late. And in this case the court of appeals (the Fifth Circuit), actually agreed with the state on that point. Nonetheless, in a 7-2 decision (with Justices Gorsuch and Thomas dissenting), the Supreme Court decided to stay the execution unless the state allows Patrick Murphy to have a Buddhist priest present in the execution chamber with him. Here is the majority opinion in full:

The application for a stay of execution of sentence of death presented to JUSTICE [SAMUEL] ALITO and by him referred to the Court is granted. 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 inthe execution chamber during the execution.

This is not, formally, a ruling on the merits. But it is probable the Court would not have stayed the execution unless the majority believed it likely that Murphy would in fact prevail on the merits if the case were fully litigated. In a concurring opinion, Justice Brett Kavanaugh addressed the merits directly:

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….

In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room. But inmates of other religious denominations—for example, 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.

Kavanaugh is pretty obviously right about this. Indeed, his argument is very similar to that which Justice Elena Kagan made in her dissent in Ray. Unlike Ray, this case—while not yet officially a precedent on the merits—sends a strong signal to lower courts about how such religious discrimination cases should be resolved. Lower-court judges will surely recognize that the Supreme Court does not want them to uphold such policies.

The question remains, however, why three conservative justices (Roberts, Alito, and Kavanaugh) chose to issue a stay in Murphy, but not in Ray. The mystery is deepened by the fact that, in the current case, the court of appeals ruled against the prisoner and provided a very plausible rationale for why the delay here was less excusable than in Ray. Here is the relevant excerpt from the Fifth Circuit opinion:

Unlike the situation described by the dissenting Justices in Ray, the policy of only permitting [Texas Department of Criminal Justice]-employed chaplains into the execution chamber at issue in this case has been in place since at least 2012 and is not ambiguous about pre[sence in the execution chamber as distinct from in the adjacent viewing area. The district court determined that the policy is not confidential and that Murphy's counsel is an experienced death penalty litigator who knew, or should have known, about the policy well before the weeks immediately preceding the scheduled execution. However, even if we were to accept Murphy's current representation that he and his counsel did not have access to the text of that policy, his counsel was definitively notified of that provision by an email from the TDCJ's general counsel on March 5. Nonetheless, Murphy waited until March 20 to raise any related claims before the Texas Court of Criminal Appeals, and until March 26 to raise any such claims before the federal courts. Such delays are unacceptable under the circumstances.

In Ray, by contrast, the prisoner filed his claim on January 28, within just five days of having his request to have his imam join him in the execution chamber rejected (up until which time the nature of the state's policy was not clear to him). Reasonable people could still conclude that, if Murphy's lawyer really didn't know until March 5, the three week delay in filing his federal claim was defensible (though the trial court concluded that he had every reason to have known earlier). Regardless, the procedural ruling against Murphy was at least far better justified than that against Ray.

Why then, did Alito, Kavanaugh, and Roberts rule in favor of Murphy despite previously ruling against Ray? We cannot know for sure. But it is possible to make some educated guesses.

The most cynical explanation is that Murphy is a Buddhist, not a Muslim like Ray was. On this view, the three conservative justices have nothing against Buddhists, but are prejudiced against Muslims. But this theory seems unlikely, given that the justices surely realize that this case is going to set a precedent for lower courts in cases involving Muslim defendants, as well. And, as I pointed out in my post on Ray, the justices in question have ruled in favor of a number of other religious-liberty claims filed by Muslims. The Court's ruling in the Trump travel ban case is often cited as a counterexample. I am no fan of that awful decision. But the double standard there is one between discrimination in immigration policy and domestic discrimination, not between discrimination against Muslims and discrimination against other groups.

A more likely reason, in my view, is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court's reputations. 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.

And, whatever can be said about the procedural question, it's a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one. Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.

NOTE: I clerked for Judge Jerry E. Smith, one of the three judges on the Fifth Circuit panel that ruled against Murphy on procedural grounds. My clerkship was many years ago (2001-2002) and I had no role in the current case, nor have I discussed it with Judge Smith.

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  1. I see that the Becket Fund filed an emergency amicus brief:

    https://bit.ly/2V8HAyF

    The brief suggests that the lower court was suspicious of the motives of Murphy and his lawyer – but added that this was no reason to deny Murphy his religious rights. After all, as the brief points out, an injunction requiring a Buddhist minister in the death chamber can be complied with and the execution can go forward as soon as the needed arrangements are made. In short, no need to stay the execution until the case grinds on to a final decision, simply respect religious equality and they can go ahead and kill the guy.

    Maybe assurances like these eased the mind of the Justices? That they’re not simply giving another indefinite stay of execution but are willing to let the execution go forward as soon as this can be done in a religiously-nondiscriminatory way.

    1. I’m pretty sure people made the same point in Ray. (Although IIRC in that case the state made a lot of noise about how difficult it was to certify someone for being present in the death chamber.)

      1. Conversely, I think they can moot the issue by requiring all ministers to officiate from behind the glass.

        As I understand, there is no free-standing right to have your religious figure of choice in a specific location during the execution.

      2. I don’t know – they were willing to rule for that Muslim prisoner with the beard, so why they didn’t rule for Ray I can’t say – the post’s explanation seems most plausible, that the Court heard the religious-freedom backlash from the Ray decision and decided to make up for it.

        1. I suspect it boils down to the “frame” in which the Supremes see a case – “here’s another last-minute death penalty appeal” vs. “here’s another religious-freedom case.”

          The backlash against their first denial could have prompted them to reframe these disputes as religious-freedom cases rather than dilatory capital appeals.

  2. Kavanaugh: The government may not discriminate against religion generally or against particular religious denominations….

    Both halves of that seen okay, especially the second half. But maybe we should be a bit wary that the first part, about religion generally, is meant by this famously religious justice as a qualification against separation of church and state.

    1. I’d argue differently, that discrimination against religion generally is one of the largest infringements the government makes these days, and in particular it needs to be paid attention to.

      “Separation of church and state” is shorthand for “Congress shall make no law respecting an establishment of religion”. It’s the part after that “or prohibiting the free exercise thereof” which is more critical these days, as more and more intrusive federal laws begin to impact that religion and free exercise.

      1. I’ll add one other religious-oriented piece in the constitution. “no religious test shall ever be required as a qualification to any office or public trust under the United States” as that is coming under increasing threat these days.

        1. Officials may not require it, officially or secretly. You are free to vote for or against someone because of their religion, and complain about it, as people do with Pence.

          1. In your person as a citizen, sure.

            If you’re a Senator in the US Congress, questioning the “dogma” in an individual, and claiming that religious “dogma” makes them unworthy of a judgeship…well…

        2. Officials may not require it, officially or secretly. You are free to vote for or against someone because of their religion, and complain about it, as people do with Pence.

      2. Indeed, the prohibition against laws relating to establishments of religion was intended to shelter them against federal interference, not leave them defenseless against it. But it’s worth remembering that “establishments of religion” meant state churches, not churches in general: Several of the states had “established” religions at the time, and the concern was that the federal government would either legislate against them, or go and establish it’s own official federal church. The 1st amendment was intended to prohibit Congress from getting into the topic at all, positive or negative.

        It’s the free exercise clause that’s more relevant today, as no state has anymore a state church, and there’s very little prospect of the federal government establishing one itself. (Unless you consider atheism a religion, which isn’t totally unreasonable.)

        1. Or unless you consider the “civic religion” of government-worship, as taught in public schools, to be a religion. That’s not totally unreasonable either.

        2. The Establishment Clause was imported by the Bill of Rights, and prohibits any law respecting an Establishment, not simply official churches.

          1. Incorporated with, not imported by

          2. That’s the way the left has “interpreted” it, but that’s not what it means.

          3. An “establishment” IS an official church. That’s what an establishment of religion meant at the time the 1st amendment was adopted. Not churches, state churches.

            As originally adopted, the establishment clause both prohibited the federal government from establishing its own state church, and prohibited it from enacting legislation regarding the states’ established churches.

            As incorporated by the 14th amendment, the prohibition on establishing a state church was extended to the states. (None had established churches by then.)

            The free exercise clause is what protects non-established churches.

      3. Ah yes, the famous Happy Holidays Act of 2012…

  3. ” if Murphy’s lawyer really didn’t know until March 5″

    I suspect the Justices had some serious doubts about this.

    1. Is there no faith in Murphy’s Law(yer)?

  4. Has there ever been a study to compare costs with executing someone versus life without parole ? I used to be very pro death penalty, but with all the cases related to race, and people cleared, false evidence, etc..etc, I am now anti death penalty. I actually work in corrections now, and wonder if there is something I can point to to try and sway people away who believe an eye for an eye and all that.

    1. Yes, it is supposedly cheaper to keep them alive because millions are spent on court issues for an execution.

      But what if the opposite were true? That it was cheaper to execute. Would that be a good reason to execute? No, that would not enter into it, compared to the serious nature of the issue.

    2. Part of the problem with that is that you can’t really count on “life without parole” remaining life without parole. While you can count on death remaining death. If you really could count on life sentences being such short of proof of innocence, the death penalty would lose a lot of its appeal.

      1. What is it, exactly, that you have in mind? (Other than proof of innocence.)

        1. I think that, once somebody has been convicted, it’s reasonable to treat them as though they were guilty, until evidence comes along that they shouldn’t have been convicted.

          What I have in mind is that we have some sort of legal standard that makes life without parole actually binding barring a new trial that results in an acquittal. Maybe a constitutional amendment.

          Barring that, I don’t see public sentiment in favor of the death penalty going away. People want assurance that somebody who’s convicted of a heinous murder isn’t going to benefit from some momentary brain fart a decade or two later.

          1. Has there been a rash of guilty people with life sentences being released somewhere?

            1. Google Cyntoia Brown. Also, google the 2015 Clinton prison escape.

      2. BB: “While you can count on death remaining death.”

        And that’s the rub. It’s the thing that turned me against the death penalty, not a philosophical objection but the practical finality of a mistake.

    3. “compare costs with executing someone versus life without parole”

      Death costs are inflated by the ridiclious amount of lawfare the courts permit. If they were executed promptly after the appeals regular convicts get, it would be far cheaper.

      But we absorb the cost because most of us want justice for the dead victims.

      1. Yes, how unreasonable of “us”…

        1. To be fair to Bob (god knows why, he doesn’t deserve it), we wouldn’t need all those appeals if we didn’t have god-awful trials in the first instance.

          Pulling the rope sideways here might involve a proposal to do more things right the first time rather than trying to fix them through appeals.

          1. Yes.

            It’s worth noting that some of the same people who want an express bus to the death chamber resent having to provide defense counsel to defendants, and don’t care if that counsel is hopelessly inept.

            I am not in principle opposed to the death penalty, but I do oppose it as practiced in the US, until defendants are given access to the same resources – legal, investigatory, etc. – that the state has available to it, and until prosecutors face severe sanctions for misconduct.

            1. “and until prosecutors face severe sanctions for misconduct.”

              Prosecutors should face such sanctions even in misdemeanor cases. For misconduct in a death penalty case, prosecutors ought to face career ending sanctions.

              1. If by “sanctions” you mean long prison sentences, I agree. And if their misconduct results in an innocent person being executed, execute them too.

        2. The majority of people in the US support the death penalty.

          54% in 2018 per Pew versus 39% against.

          So when I say most of us, I am correct.

          What Europeans think is of no importance.

          1. It’s not even of importance in Europe, which is why they don’t have the death penalty there anymore.

      2. “If they were executed promptly after the appeals regular convicts get, it would be far cheaper”

        And as an added bonus, we’d get to execute more actually innocent people as well. Yay, us!!!!

        1. Not a single innocent person has ever been executed in the history of the United States.

          1. Bullshit.

            That’s simply not a defensible statement, whether made by you or Scalia.

            1. Prove it.

              1. Just in Texas – Carlos de Luna (the Corpus Christi cops even admit he was innocent). Rueben Cantu (in light of subsequent information, the DA that prosecuted him admits he made a mistake).
                David Spence. And (probably) Willingham. Willingham is impossible to prove conclusively because the initial investigation was so horribly botched.

                Based on your screen name, you do your thinking through your political filter rather than with objectivity. Not worth arguing with, but you’re totally full of crap.

                1. None of those are cases where it’s been PROVEN through incontrovertible evidence, that the executed was innocent.

                  1. Those are some ugly new goal posts there. Your original statement has the burden of proof.

                  2. “None of those are cases where it’s been PROVEN through incontrovertible evidence, that the executed was innocent.”

                    LOL. And none of those guys was proven guilty through incontrovertible evidence, but the state still killed them. You recognize of course that courts aren’t going to have trials to PROVE something once one of the parties is, you know, dead. You’re (intentionally) setting up an impossible standard because doing otherwise would cause you the pain of having to try to be objective.

                    And just to pick one case – Cantu – the friggin’ victim has said on camera that he lied when he said that Cantu was the shooter because the police threatened to send him out of the country if he wouldn’t. Because the police were pissed at Cantu for something unrelated. So the damn victim says somebody else shot him. I know that doesn’t PROVE anything to you because you don’t want anything to be PROVEN, but the same person’s word was enough to PROVE that Cantu was guilty in the first place.

                    1. “You’re (intentionally) setting up an impossible standard because doing otherwise would cause you the pain of having to try to be objective.”

                      Sounds like your team’s standard for voter fraud.

                    2. Just the number of exonerations we’ve seen is sufficient evidence, IMO, to make it absurdly unlikely that no innocent person has been executed.

                      We know there have been many wrongful convictions. It is impossible to believe that all have been caught. Well, impossible for any rational individual.

      3. If they were executed promptly after the appeals regular convicts get […]

        We would have even more innocent folks murdered by the state for crimes they didn’t actually commit.

        There’s a reason we give death penalty convicts more appeals.

        1. “There’s a reason we give death penalty convicts more appeals.”

          No good reason.

          1. Bob, if you’re so high on the death penalty that you’re fine with executing the innocent, why don’t you go first and preserve the death penalty for society?

            1. “why don’t you go first ”

              Oh, a stupid comeback.

              1. Fuck off. You’re fine with innocents being executed to preserve the death penalty as long as it’s not you. Put your fucking money where your fucking mouth is, dude.

                1. I think one has to murder someone first, dude.

                  1. “I think one has to murder someone first, dude.”

                    As several of us on here have noted, you’re arguing for a limit on the thing that keeps people who didn’t murder someone first from being executed. So, no, that’s not really a requirement you have.

                    1. No, he’s not. Most of the appeals that lengthen the process have nothing to do with actual innocence, but are ridiculous claims that the punishment violates the 8th Amendment, that their counsel didn’t properly make claims that they were mentally diminished, and so forth.

          2. Let it be noted: Bob from Ohio is on-board with murdering innocent people.

            1. Who cares? Bob will be replaced, soon enough.

              The more important issue is the number of malcontents who favor tariffs, walls, statist womb management, government killings (of varied kinds, from the death penalty to military belligerence), white nationalism, government gay-bashing, bloated military spending, and other forms of bigotry, yet claim to be libertarian.

              1. Well I don’t necessarily favor all tariffs. Can’t opine on “government gay-bashing” because I don’t know what you mean (I doubt you do either). Also not sure what you mean by walls”? ‘Walls” like the 6ft barrier around mark zuckerberg’s Hawaiian estate or the barrier around Pelosi’s multi-million dollar Napa Valley property? I guess they really like the security that such “walls” provide. Do you disagree?

          3. The number of people exonerated who were on death row argues otherwise.

            1. Get rid of the misconduct then that leads to that, not the death penalty.

              1. A decent person would insist on avoiding the death penalty until the system were moral and reliable.

                1. Reliable? I guess it depends on the skill of the executioner. Lots of amateurs out there.

              2. “Get rid of the misconduct then that leads to that, not the death penalty.”

                *slaps forehead with palm*. Well, shit. Why didn’t I think of that?

                Let us know when you figure out a way to accomplish getting rid of the misconduct. You won’t of course, because you don’t give a shit about it, not really. As long as people are being executed you don’t give a shit whether they’re innocent or not. You just want ’em dead.

                1. Yes, there’s an easy way. Get rid of qualified immunity, get rid of prosecutor immunity, and get rid of judicial immunity. Give people extremely harsh sentences for misconduct. Right now, it happens because we allow it to. Period.

                  1. That would require prioritizing the integrity of the legal process above the interests of those who execute it. Which has not by any means proven easy.

                  2. “Get rid of qualified immunity, get rid of prosecutor immunity, and get rid of judicial immunity. Give people extremely harsh sentences for misconduct. Right now, it happens because we allow it to.”

                    Yeah, man, I’ll just waive my magic Get Rid of Advantages to Government Employees Wand and it’ll happen, right?

                    People have been trying to get rid of that stuff for decades, but ,amazingly, the people that those things protect and who also make the decisions as to whether they exist or not aren’t willing to get rid of them. Go figure.

                    1. That means that we, the people, collectively let it happen. If most Americans weren’t pussies, we’d have had 2nd Amendment remedies long ago.

      4. If there weren’t so many convicted and sentenced to death and later exonerated, perhaps I’d support cutting legal corners. But, as we can’t seem to get it right even with lots of legal process, I’m not thrilled with getting rid of that process and executing a bunch of innocents.

      5. +1. A disproportionate amount of resources are devoted to prevent killing an innocent person in the context of criminal justice than just about any other area of government action that results in the death of innocent people. So spare us the sanctimonious grandstanding.

      6. Death costs are inflated by the ridiclious amount of lawfare the courts permit.

        That’s a common belief. I used to believe this myself. Then I learned a few things. I learned, for instance, about the details of Ted Bundy’s case. Bundy was sentenced to death in July of 1979. His lawyers did not engage in any of the delaying tactics decried by the likes of Justice Scalia. At last some of the appellate courts that heard his case gave it expedited processing–e.g., by moving the case up on their calendar, ahead of cases that had been on the docket longer. It still took nearly a decade before his execution in January of 1989.

        It simply takes a long time for the courts to process capital cases with even a minimal amount of procedural fairness.

    4. >But of all Justice Stevens’ criticisms of the death penalty, the hardest to take is his bemoaning of “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for victim’s families.” Those costs, those burdens, and that lack of finality are in large measure the creation of Justice Stevens and other Justices opposed to the death penalty, who have “encumber[ed] [it] ? with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it”?the product of their policy views “not shared by the vast majority of the American people.”

      Baze v Rees, Scalia concurring

      1. +1000

        Death penalty opponents are like the guy who kills his parents and asks for mercy because he is an orphan. They create the delay problem and then use the delay they caused to say we should abolish the death penalty.

        1. Not just delay. They fought mandatory death penalty statutes on the grounds that a jury had to have discretion and then use the fact that juries exercise that discretion in a way that may be racially biased as grounds to abolish the death penalty.

          1. I wrote a couple of papers on McClesky v. Kemp. It’s got some of the best statistical analysis you can find.

            Controlling for loads of other factors including aggrivating circumstances, specific crime, jurisdiction, class, etc. black men are vastly more likely to be given the death penalty after conviction for killing a white woman than a similarly situated white woman for killing a black man.

            A racially biased death penalty is pretty ugly, regardless of how organically it arises from our biased institutions.

            1. But the point stands. The supposed racial differences in imposing the death penalty is not a slam dunk argument against the death penalty that too many of its opponents seem to think, just that juries should have less discretion. The fact that women are “privileged” (where is the loud chorus of feminists complaining about that?) in sentencing for violent crimes doesn’t mean that we should automatically abolish or pick the lowest penalty for the crime.

              1. I don’t agree, but I allow that it is a reasonable argument that such disparity may not be a Constitutional issue.

                The fact that it legitimately reflects our racism/sexism as a society could just mean we should change our policy, but to Justice Sarcastr0 such evidence of fundamental unfairness, human though it may be, makes it a manifestly unjust system that fails to provide due process.

            2. That just proves my point. If the juries can’t be trusted to exercise discretion fairly, the solution is to get rid of the discretion. Make the death penalty mandatory for first degree murder with aggravating circumstances and that won’t be an issue. But you liberals fought that too.

              1. Anyone who says they will cure unfairness by making the death penalty much more common is not providing a solution to anyone who thinks the death penalty is both evil and unfair.

                1. Then the people who claim their problem is the unfair application are lying, and that they wouldn’t support it in any case.

            3. You found enough cases of white women killing black men to make a statistically valid comparison?

              1. Not me. Read the case, KHP.

      2. They are not the creation of Justices, but of the ridiculously unjust procedures used to convict and sentence capital defendants.

        1. “procedures used to convict and sentence”

          I think they are called trials.

          1. I know what they’re called.

    5. The primary difference between costs in a capital case and a LWOP case is primarily in the trial and appeals. Attorneys in capital cases tend to spend more time preparing for a capital case, there are more witnesses involved, investigation into the defendant’s background and also the appeals. I have little doubt that if the United States ever did away with capital punishment that we would start to see those same costs shift over to LWOP cases.

  5. I really wonder what a Buddhist “priest” is supposed to do at an execution.

    1. So does the convict. He just picked a non Christian religion so to get the most sympathy.

      1. And to take advantage to delay the end of his miserable life.

        1. If that were the case it would have been better to choose Shintoism or any number of folks religions. It’s probably more correct to assume that he’s just not a good Buddhist.

          1. folk* religions

          2. It’s probably more correct to assume that he’s just not a good Buddhist.

            Possible, but I suspect it’s just as likely to guess he converted in prison. Folks “finding God” (or Gods in this case) in prison is pretty common, and there’s a lot of evangelism and conversion, both from outside chaplains and the like working with prisoners, and prisoners among themselves.

            That said, I think this falls under the general “it’s not for us to judge religious sincerity” heading. Whether he’s a “good” or “bad” Buddhist, whether he’s sincere or just faking it to stall for time, is not something the government, or the rest of us, should consider while evaluating the merit of the request.

            1. Absolutely agreed, I just find it really amusing when people are bad versions of what they think they are. Goes for religious people, politicians, academics, and whoever else you might think of.

              He can be a bad Buddhist and still keep the blessings of liberty.

        2. Bob:

          It always is based upon a legal strategy to prolong the life of the murderer. In this case, it was valid and Texas was plain dumb.

          Now, Texas will end all religious programs within corrections.

          1. “It always is based upon a legal strategy to prolong the life of the murderer.”

            Or to prolong the life of the innocent guy long enough for somebody to get a court to notice that the police and prosecutors fucked up.

            1. Was there any allegation of that here?

      2. You always seem a particularly bitter clinger, Bob. Is awareness that you are to be replaced getting to you?

        1. White people being replaced is equivalent to taxpayers being replaced. Who is going to pay the bills when we’re gone? Certainly not semi-retarded immigrants from Honduras and Somalia.

          1. Not all white people will be replaced — just the stale-thinking, intolerant ones. The ones who inhabit the desolate rural and southern stretches of America that do not contribute much and instead are a drain on our society.

            So . . . no problem paying the bills.

            1. Do you think liberal white men in cities who do nothing but write code and sell financial “products” are going to continue to pay all of the bills when taxes increase to 90% to pay for all the third worlders?

            2. I don’t live in the south. Am I OK?

    2. The exact same thing a Christian “priest” is supposed to do at an execution – provide spiritual comfort and guidance to the condemned.

      Don’t display your ignorance more than you have to, gormadoc.

      1. In the case of a Buddhist and a murderer, it would be something like, “Be the very best rotifer you can in your next life!”

        1. I’m betting routinely cut lawn grass for this dude.

      2. Buddhist monks that aren’t Buddhas and Bodhisattvas aren’t supposed to do that. Even then they don’t provide comfort. Being a Buddhist monk is about personal enlightenment; you can’t teach about what you don’t know.

        It’s rather telling that you assume religious officials in other religions have the same job as a mainstream Christian official. Buddhism doesn’t have priests. Preaching isn’t a thing and you don’t do prayer on behalf of others.

        1. Even then they don’t provide comfort.

          I think the “comfort” would be something like “This is your fate, you earned it.”

          1. Well, you wouldn’t get a lot more than that from most Catholic clergy, either. They might assure you that if your repentance was real you were going to purgatory, not Hell, but accepting your execution would likely be part of proving that you sincerely repented of the murder.

            1. The Catholic Church appears to have enthusiastically embraced — and in many cases assisted — plenty of child abusers for decades if not centuries, and seems to have had — and benefited from — a close relationship with plenty of criminals and other enthusiastic sinners.

              1. So, they just ignored the unenthusiastic sinners?

            2. A Catholic priest could at least act as an intermediary at least or remind the doomed that God still loves them.

      3. “Don’t display your ignorance more than you have to”

        Take your own advice.

        Buddhists do not share the “spiritual comfort and guidance” by a third party [priest, rabbi] concept.

    3. Something similar to what a Catholic priest or a rabbi does, I imagine.

      Just because you don’t know is no reason to mock Buddhism.

      1. “Something similar to what a Catholic priest or a rabbi does, I imagine.”

        You imagine wrong.

        Gormadoc seemingly knows a lot more about Buddhism than you do. Its not an intercession religion like Christianity.

      2. You’re an idiot, but that’s okay, it’s treatable.

    4. I must confess I also wondered what role a Buddhist spiritual advisor would play at an execution. Have any Buddhist spiritual advisors ever attended the execution of any Buddhists anywhere else, anywhere in this country or the world?

      1. WTF difference does it make what he does?

        A rabbi is not going to administer last rites either.

        It really is not the state’s business to decide whether this makes sense from the point of view of the doctrine of the religion in question.

        After all, we apparently have a rule that a “substantial burden” on religious belief is whatever the individual says, up to and including filling out a brief form. But suddenly we’re engaged in theological disputes here.

        1. Well, just curious but, to the extent RFRA applies, might this not bear on whether there was a sincerely held belief?

  6. You can always count on certain conspiracy bloggers to always assume bad faith from their political opponents.

    1. In science, address the argument rather than the arguer.

      In politics, presume there are hidden motivations behind every surface, professed reason.

      For example, Republicans want the wall to stop the Democrats from growing their mass of voters. Democrats don’t want it for the same reason.

      Neither side admits it for obvious reasons.

      1. Wow, so not only do we have to live in an era of toxic political polarization, but now we have someone actively exhorting both sides never to assume good faith or try to come to a reasoned understanding of another position.

        Yikes.

      2. For example, Republicans want the wall to stop the Democrats from growing their mass of voters

        Discounting or dismissing the role of bigotry in Republican thinking and conduct is a severe, and telling, error.

        1. No, moron, “Republicans” (meaning the RNC) want open borders to continue so that wages stay low.
          Leave it to you to equate someone who wants the same immigration policy as Australia has a “bigot”.
          Either enforce the law or repeal it.

        2. Well, the wall is a good start but a lot more is needed.

  7. A more likely reason, in my view, is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court’s reputations.

    Maybe part of the explanation is also that SCOTUS thought that the state should’ve known better after the Ray case. Forget about the details of when this new guy brought his case, and realize that Texas should’ve proactively changed its policy without waiting for an application from him.

    1. That is a fine point. In a better world, the Court would have avoided confusion by stating its reasoning.

  8. Texas will end all religious counseling.

    Death row inmates, as all inmates, will have to arrange their own religious counselors, if they wish.

    1. That’s not the issue. The issue is that the state won’t let certain religious counselors into the death chamber, where the actual execution happens.

      1. More accurately, the State only has certified & vetted – to be in direct contact with prisoners – religious counselors of a few faiths, and not all faiths.

        1. Why, and what’s the big deal?

          How long does it take to check a counselor out, and what is the great risk, anyway?

          1. They are afraid that some prisoner will list Bob the Bruiser as his religious adviser and that Bob will try to stage a prison break in the middle of the execution in front of a dozen witnesses.

            1. Or Betty the reporter, from the Church Of Filming The Execution.

        2. So if I am a Follower of Kahless, is the State obligated to certify a high cleric to usher me into Sto’Vo’Kor?

          1. Reasonable accommodations.

            If your accommodation is impossible because there are no high clerics of your made-up religion, the government is under no burden to provide one.

  9. No disagreement, but having lawful, secure borders should be an obvious, reasonable standard for all countries.

  10. No Bull Cow, the facts aren’t at all “similar” to the Dunn case. As is typical of communist filth, you feel it good to lie whenever it suits your purposes. In Dunn, the Court was worried that the Mohammedan sprung the request for an imam at the last minute in hopes of delaying the execution. In this case, the request was made much much sooner, which means it was more likely to be sincere, and less likely to be a ploy to delay the execution.

    Hence, the two cases are quite different. Of course, you knew that, and want to lie. (Or perhaps you didn’t know that, since you can’t tell a Bull from a Cow, and you really are quite ignorant.)

    1. Wait, so you are arguing that Dunn was correctly decided? “Mohammedan”? never saw that used before, at least by any sane author in this century.

    2. Thank goodness Bigoted Wingnut Mini-Me in back. Prof. Volokh missed her.

      1. Like I said, never saw that used in this century by any sane author.

    3. Noting parody accounts probably don’t spend much time on research, will fill in a couple of details.

      As detailed in the decision and described in the article, the Mohammedan appeal came five days after first learning of the condition. The Buddhist appeal was made three weeks after (with strong evidence that the Buddhist’s attorney probably knew much earlier, while the Mohammedan’s almost certainly did not).

      So, RAIK, has his main point exactly backward. I don’t think RAIK’s lying though?he simply is just that ignorant.

  11. Nice to see Strict Constructionists can find new history to evaluate so quickly! Bart must be a really top notch historic-forensic researcher.

  12. The Justices may have developed their thinking on theses issues in the aftermath of Dunn v. Ray. Which would be totally reasonable and good.

    Additionally, the two cases have somewhat different fact patterns. In Dunn v. Ray there was a single minister the prison made available (who, arguendo, happened to be Christian). The result was discriminatory, to be sure, but the objection looks a little different. In the present case, different ministerial options were provided for select religions. That’s discriminatory on its face. Consider an imperfect analogy of the difference between a case where the Court decides whether a religious-themed monument is constitutional (eg Van Orden v. Perry) and a case where a state permits some, but not all, religious monuments. Many consider both situations equally problematic, as Establishing and/or discriminating against religions, but the Court has drawn lines distinguishing the two. Prison security is the “historical value” of the present case. It is less dispositive where some, but not all, religious are permitted.

    At least where an 11th hour objection is raised, I can see how the present case would inspire more Justices to intervene.

    1. “In the present case, different ministerial options were provided for select religions. That’s discriminatory on its face.”

      Not really, it’s just that the Texas prison system is big enough to employ both Christian and Muslim chaplains. And I suspect that the answer will follow Alabama’s lead.

      1. I’m not saying there is a discriminatory intent. In both cases I wager there are administrative reasons. With a full consideration of the merits all that would be sussed out. I also wager the difference would evaporate upon closer inspection. But the Court did not rule on the merits of these cases.

  13. I have a suspicion that before the Supreme Court can give a full ruling on this case, Murphy will have been executed – in the presence of a Buddhist priest of course.

    Maybe some Buddhist priests, pagan sorcerers, and other nonconventional clerics could take the initiative and file their own suit, seeking the right of access to death chambers on the same terms as government-recognized religions.

    1. “Maybe some Buddhist priests, pagan sorcerers, and other nonconventional clerics could take the initiative and file their own suit, seeking the right of access to death chambers on the same terms as government-recognized religions.”

      I suspect they’d have a standing issue.

    2. Buddhist priests, pagan sorcerers, and other nonconventional clerics

      According to Pew there are about two million Buddhists in the US. Other sources say there are about 500 million worldwide.

      “Nonconventional?”

      1. You seem a tad hypersensitive.

        I was simply trying to find a term to describe those faiths to whom the states hadn’t yet extended First Amendment rights, and suggesting a means by which they can vindicate those rights, but by all means don’t let that stop you from being offended on their behalf.

  14. Thanks for this insightful commentary. It was really nice to have a recognized expert validate my confusion about these decisions. You articulated my thoughts on the Court’s motivations very compellingly. So much so I quoted you in my blog.

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