Justice Brett Kavanaugh (Photo: Diego M. Radzinschi/ ALM)

In a late-hour 7-2 decision Thursday night, the U.S. Supreme Court halted the execution of Texas death row inmate Patrick Murphy because the state did not permit a Buddhist spiritual adviser to accompany him in the execution chamber.

Justices Clarence Thomas and Neil Gorsuch indicated they would have denied the stay.

Murphy is one of the so-called Texas 7, a group of escaped prisoners who killed a Texas police officer in 2000.

The stay for Murphy is in contrast to a 5-4 February ruling by the high court to deny a stay requested by Alabama inmate Domineque Ray, who wanted his Muslim imam to attend his execution.

The difference in the two rulings appeared to be a matter of timing.

In the Murphy ruling Thursday night, Justice Brett Kavanaugh, in a footnote, said, “I conclude that Murphy made his request to the state in a sufficiently timely manner, one month before the scheduled execution.”

In the Ray case, the high 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.” The execution was set for February 7.

In a solo concurrence, Kavanaugh Thursday night wrote that Texas, by denying Murphy access to a Buddhist reverend, amounted to “governmental discrimination against religion” in violation of the Constitution.

“In this case,” Kavanaugh wrote, “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 said that, in his opinion, Texas had two options to go forward with the execution: “(1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.”

Kavanaugh concluded, “The choice of remedy going forward is up to the state. What the state may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”

 

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