Updated April 11, 2019​ 

Sri Lanka Express

Latest on the SCOTUS ruling (April 4, 2019)

Texas would deny Christians and Muslims than
allow a Buddhist chaplain in the death chamber!
Following the Supreme Court ruling on Texas inmate Patrick Henry Murphy’s request for a Buddhist chaplain to accompany him to the death chamber, the state last Wednesday (4/3) retooled its execution policy to ban all chaplains.

Texas law had previously allowed only a Muslim or Christian religious leader to be present in the death chamber when an inmate is put to death (by lethal injection).  Prisoners of other faiths had to die alone. Murphy sued, alleging a violation of his religious liberty, and the Supreme Court agreed that Texas would be violating the First Amendment.

The state was given 2 options: "allow all inmates to have a religious adviser of their religion in the execution room" or "allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room."

With its latest rewrite of death-row protocol taking the second option, Texas has signaled that it would rather condemn all death row inmates to die without a spiritual adviser than allow a Buddhist inmate to bring his reverend into the death chamber.

Did SCOTUS  favor Buddhist death-row inmate, discriminate against Muslim?

Hassina Leelarathna
The US Supreme Court last week ruled against the State of Texas and granted a last- minute stay to death- row inmate Patrick Murphy in order to accommodate his request to have a Buddhist priest accompany him to the execution chamber. 

The decision was reported without comment in Buddhist magazines and immediately drew praise from other religious leaders.

The Texas Catholic Conference of Bishops, which represents the state’s 32 bishops, issued a statement on Friday praising the decision:

“The Catholic bishops of Texas applaud the decision of the U.S. Supreme Court to stay the execution of Patrick Henry Murphy since he did not have access to a spiritual director of his faith.”
But the ruling is also raising eyebrows because just last month the same court ruled against a death-row Muslim who had made a similar plea requesting that an imam be at his side at his execution. 

 Patrick Murphy, a member of the “Texas 7” gang of escaped prisoners, was sentenced to death by lethal injection in 2003 for killing 29-year-old Irving Police Officer Aubrey Hawkins.

Murphy was said to have practiced Buddhism (Pure Land Buddhism) for over a decade and wanted his spiritual adviser Rev. Hui-Yong Shih to be present with him in the execution chamber.  Texas refused, on grounds that it only allows Christian and Muslim spiritual advisors to enter the chamber.

Murphy’s sentence which was to be carried out March 28 was postponed with a last-minute stay granted by the Supreme Court which voted 7-2 against Texas’ policy. A short statement, accompanied the Court’s order:
Patrick Murphy, via Texas Dept. of Criminal Justice
"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."
Domineque Hakim Ray, via Alabama Dept. of Corrections
Justice Brett Kavanaugh (Trump appointee) calling out Texas for “denominational discrimination” wrote:
"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."
Justices Clarence Thomas and Neil Gorsuch (Trump appointee) dissented.

While righting blatant discrimination, the ruling is yet totally at odds with how SCOTUS treated a last-minute appeal from Alabama death row inmate Domineque Hakim Ray,  a Muslim who had requested to have his imam by his side during his execution.  The state refused on the basis that only religious figures of its choosing would be permitted. Ray would only be permitted to have the state’s Protestant chaplain by his side.

Ray sued, demanding that the imam who had been visiting him in prison for several years be permitted to remain in the execution chamber. The Eleventh Circuit stayed Ray’s execution ruling against the State of Alabama but  SCOTUS vacated the stay and rejected Ray’s appeal on the grounds that the request for the imam had been made too late.   The condemned man waited until 10 days before his execution date to file the appeal the court said.
"Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit."
Ray’s lawyer, John Anthony Palombi, a federal public defender, revealed the condemned man had believed that the imam who had been visiting him regularly in his cell would be permitted to be with him in the death chamber. The warden informed him otherwise only two weeks before the execution date.

Associate Justice Elena Kagan called the decision "profoundly wrong," asserting that "his religious rights will be violated at the moment the state puts him to death.” 

Ray a convicted child-rapist and murderer  was executed February 7 by lethal injection without his imam by his side. 

What could account for the two divergent rulings on two similar cases within a matter of weeks?

Islamophobia? Standard discrimination?

The SCOTUS decision in the Ray appeal has angered leaders from all sides of the political and identity divide.

“Ray’s execution was just. The circumstances were not. The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death,” wrote David French in the conservative magazine National Review (“The Supreme Court Upholds a Grave Violation of the First Amendment,” NR, Feb. 8, 2019).

Yale Law and Bloomberg columnist professor Stephen Carter, who has been writing about religious freedom for 30 years, found the SCOTUS decision “outrageous.”

“To deny that person his chosen spiritual counselor at such a moment is the ultimate cruel triumph of our current wave of secularization. The authorities are in effect saying, “What difference does it make who’s with you at the end? You’ll be dead soon, and none of this will matter to you.” No matter how outrageous the crime, Alabama should not be taking sides in the greatest metaphysical question before us.”
(“One of the most outrageous Supreme Court decisions in decades,” The Spokesman Review, February 13, 2019).

Amanda Tyler, Executive Director, Baptist Joint Committee for Religious Liberty in an opinion piece title “A decision that will live in infamy,” said the SCOTUS decision in the Ray case damages religious freedom of minorities.

“The case is another that can be cited by those who rightly observe two rules for religious liberty in this country – one for Christians, and one for everyone else. Unless the Court returns to enforcing Establishment Clause principles ensuring government neutrality in matters of religion, we will continue to see these unjust results, which directly harm religious freedom for religious minorities and indirectly for us all.”

The disparity between the two SCOTUS rulings will likely reverberate with accusations of prejudice against one religious minority.  The American Civil Liberties Union questioned the court’s apparent inconsistency in tweets on March 28:

“This is good news, but we can’t forget this is the same court that denied a Muslim man the same right just last month,” the ACLU said. “People of all faiths are entitled to religious freedom.”

“The only real difference between Domineque Ray's and Patrick Murphy's requests to have clergy members of their own faiths at their executions is that Ray is a Muslim and Murphy is not. The Supreme Court's divergent rulings once again suggest that Muslims are not treated equally.”

But not everyone is approaching the issue with cynicism.  

Ilya Somin, Professor of Law at George Mason University, with a more pragmatic explanation:

“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,” Somin said writing in the Volokh Conspiracy blog.

That sounds reasonable, but not enough to bury niggling doubts.