The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.


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 presence 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.