Religious Rights on Death Row

Henry Murphy, a practicing Buddhist inmate in the Texas criminal justice system was sentenced to death for the murder of a police officer. The date of execution had finally been set, and days before his execution was to occur, Murphy’s attorney filed a claim to delay the execution. This claim alleged that Murphy was being discriminated against due to his religious beliefs and the execution could not proceed because of this. It was Texas policy that state approved religious advisors could be in the room for the execution of the inmate, but all these advisors were either Christian or Muslim. These Christian and Muslim advisors could be present in the room, while approved advisors of other sects could only be present in the viewing area. Murphy argued on the grounds that preferential allowance of advisors constituted an establishment of religion by the state.

When this case reached the Supreme Court in March 2019, they decided to grant the requested stay of execution. Justice Kavanaugh wrote in the concurring opinion, “As this Court has repeatedly held, governmental discrimination against religion … violates the Constitution. The government may not discriminate against religion generally or against particular religious denominations.” Kavanaugh then goes on to outline the details of the stay of execution, including whether the official will be allowed in the execution room, or into the adjacent viewing room according to the security related discretion of the state. Texas responded by adjusting their law to mandate all religious advisors could only be present at the execution from the adjacent viewing rooms.

Writing in the dissent, saying Murphy should not have been granted a stay of execution, is Justices Alito joined by Thomas and Gorsuch. They argue that the last minute nature of the application made the claim indefensible, citing the evidence that Murphy and his legal counsel knew about this law for years, and had been in conversation with the state for months about Murphy’s specific case. It was clear, in their opinion, that this application was a last-ditch effort, and the allowance of a stay was not in accordance with the courts previous decisions in these kinds of last-minute petitions.

The primary question in this case is whether the state's different treatment of religious sects constitutes an establishment of those preferentially treated religions. Considering the late application, and whether Murphy should have been pressing this issue earlier, should the concern over establishment of religion override the perhaps imperfect beginnings of the request for a stay of execution.

In my opinion, I agree with the majority of the court, the state of Texas was clearly breaching the Establishment Clause with their unequal treatment of religious sects in this case. Regardless of how heinous Murphy’s crimes were, or if his claim was filed correctly, the state of Texas was still establishing the Christian and Muslim faiths over all others. The battle to defend religious freedoms must be fought on all battlefields, regardless of whether the victim of religious persecution is morally agreeable to you personally. Murphy’s status as an inmate on death row also is not an overriding factor to me in this case, although it is well established the First Amendment rights of inmates are reduced. So long as his request can be completed without violating the four factors Justice Alito raised in the dissent, “(1) whether a prison rule bears a “valid, rational connection to a legitimate governmental interest”; (2) “whether alternative means are open to inmates to exercise the asserted right”; (3) “what impact an accommodation of the right would have on guards, inmates, and prison resources”; and (4) “whether there are ready alternatives to the regulation.” In the remainder of his dissent, Alito raises concerns over a slippery slope of allowing anyone who claims to be a religious advisor to witness the execution and whether these are legitimate advisors. This strengthens my agreement with the majority, as I believe that neither of these complaints Alito raises are complaints he should be able to raise. The court should not be in the position to judge who are legitimate representatives of the religion.

The court's decision in this case stands as another shining example of the protection of religious freedom, and the striking down of dangerous establishments thereof. It also reaffirms that even inmates are to retain a degree of the rights to religious expression free citizens hold in the First Amendment. Not only did the law constitute an establishment of religion, in doing so it actively discriminated against other religions, including Buddhism, as practiced by Murphy. Justice Kavanaugh wrote in his concurrence that, “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.” The nature of the law not allowing Murphy to have a religious council of his choice present in some capacity at his execution, when some inmates may,  is wholly repugnant to the ideas of equal treatment of religions and the Establishment Clause of the First Amendment. 

Post by Seth P.