Supreme Court Stays Execution of Buddhist Inmate

https://www.nytimes.com/2019/03/28/us/politics/texas-execution-buddhist-inmate.html

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WASHINGTON — The Supreme Court on Thursday stayed the execution of a Buddhist inmate in Texas whose request that his spiritual adviser be present in the execution chamber had been denied.

In a brief, unsigned order, the court said that Texas may not execute the inmate, Patrick H. Murphy, “unless the state permits Murphy’s Buddhist spiritual adviser or another Buddhist reverend of the state’s choosing to accompany Murphy in the execution chamber during the execution.”

Justices Clarence Thomas and Neil M. Gorsuch said they would have allowed the execution to proceed.

In a concurring opinion, Justice Brett M. Kavanaugh wrote that the state’s policy of allowing only Christian and Muslim chaplains to attend executions amounted to unconstitutional religious discrimination. “The government may not discriminate against religion generally or against particular religious denominations,” he wrote.

“In this case,” he 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.”

Justice Kavanaugh wrote that Texas may exclude advisers of all denominations from the execution chamber but may not allow only some to be present.

Mr. Murphy’s case was similar to one in February in which the court, by a 5-to-4 vote, allowed the execution of a Muslim inmate in Alabama who had asked that his imam be present. In Alabama, only a Christian chaplain employed by the prison was allowed in the execution chamber.

Mr. Murphy was sentenced to death for the 2000 murder of a police officer, Aubrey Hawkins. Mr. Murphy has been a Buddhist for about a decade, according to court papers, and his spiritual adviser, the Rev. Hui-Yong Shih, has ministered to him for the last six years.

In late February, Mr. Murphy’s lawyer asked prison officials to allow Mr. Shih to be present at the execution.

“Murphy’s faith teaches that, in order to enter into what he understands to be the ‘Pure Land,’ he must focus on the Buddha at the time of death, and Rev. Shih’s presence in the chamber would make that possible,” the lawyer, David R. Dow, wrote.

A prison official responded that only prison employees are allowed in the execution chamber, “which precludes Mr. Murphy’s spiritual adviser from being present.”

On Wednesday, a three-judge panel of the United States Court of Appeals for the Fifth Circuit ruled that Mr. Murphy had waited too long to file suit. The prison policy was long established and public, the panel said in an unsigned opinion, making delays in challenging it “unacceptable under the circumstances.”

Texas officials said the state’s policy was based on security considerations. An untrained visitor to the execution chamber, they wrote, could succumb to “irrational and uncontrollable behavior or fainting” or start “pulling intravenous lines out of the inmate, taunting witnesses observing on behalf of the victim, causing disruption within the execution chamber or attempting to gain access to the execution team.”

The Becket Fund for Religious Liberty filed a supporting brief urging the justices to require prison officials to let Mr. Shih into the execution chamber. “The guidance of the soul at the moment of execution — the moment at which the knife falls — has for centuries been well recognized as a crucial moment of religious exercise calling for a minister’s guidance,” the brief said. “This court should recognize that our Constitution and civil rights laws support a right to that guidance.”

In the Alabama case, Dunn v. Ray, the majority, in an unsigned opinion, said that the inmate, Domineque Ray, had waited too long to object. Justice Elena Kagan, writing for the four-member liberal wing, said the majority was “profoundly wrong.”

Under Alabama’s policy, she wrote, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites.”

“But if an inmate practices a different religion — whether Islam, Judaism or any other — he may not die with a minister of his own faith by his side,” Justice Kagan wrote.