Jurisprudence

Why Did Brett Kavanaugh Change His Mind About the Rights of Religious Minorities in the Execution Chamber?

Brett Kavanaugh looks off-camera at the U.S. Capitol on Feb. 5.
Brett Kavanaugh at the U.S. Capitol on Feb. 5.
Mandel Ngan/AFP/Getty Images

Why did the Supreme Court halt Patrick Henry Murphy’s execution and not Domineque Ray’s? On Thursday night, the justices barred Texas from killing Murphy, a Buddhist, because the state refused to let a Buddhist spiritual adviser accompany him in the execution chamber. Yet just last month, a majority of the court let Alabama kill Ray, a Muslim, even though the state would not let his imam accompany him during the lethal injection. At least one conservative justice, Brett Kavanaugh, intervened to help Murphy but let Ray die alone. Why?

Kavanaugh’s explanation for his change of heart—that Murphy brought his claim earlier than Ray—is dubious if not outright wrong. Perhaps, in truth, they feel duly shamed by the bipartisan public backlash to their callous treatment of Ray. Maybe they were stung by Justice Elena Kagan’s fierce dissent in the Ray case. Or maybe a white Buddhist inmate like Murphy is simply more sympathetic to the conservative justices than a black Muslim inmate like Ray. Whatever the reason, Thursday’s decision marked an overdue embrace of the basic respect for religious liberty that the Constitution affords religious minorities.

Murphy and Ray’s cases are, legally, nearly indistinguishable. Both men wanted a spiritual adviser present when the state was due to execute them. But Alabama would not allow an imam to accompany Ray, and Texas would not allow a Buddhist adviser to accompany Murphy. Both states, however, were willing to provide a Christian chaplain to death row inmates at execution. (Texas, unlike Alabama, also allows a Muslim spiritual adviser to attend executions, which would be of no benefit to Murphy.) Ray and Murphy sued, noting that this discriminatory treatment of religious minorities clearly violates the First Amendment’s Establishment Clause by favoring one religion over another.

In February, by a 5–4 vote, the Supreme Court turned Ray away and let Alabama kill him, over Kagan’s scathing dissent. The majority claimed that Ray made his request too late. On Thursday, the court blocked Texas from killing Murphy. The majority believed that Murphy, unlike Ray, made his request in what Kavanaugh called “a sufficiently timely manner.” And so it forbade the execution unless Texas “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.”

On the surface, the court’s belief that Murphy’s request was timelier than Ray’s might seem plausible. Murphy asked for a spiritual adviser one month before his execution date, while Ray asked for one less than two weeks prior to his execution on Feb. 7. But Ray did not discover that he could not have his imam present until Jan. 23. That’s because Alabama statute states that an inmate’s spiritual adviser of choice “may be present at an execution,” and Ray understandably assumed that law authorized his imam to “be present” at his execution. It wasn’t until Jan. 23 that the state provided Ray with confidential regulations that only allow a Christian chaplain in the execution chamber. After Ray discovered this secret rule, he filed his federal lawsuit in five days, seeking a stay of execution until he could secure his imam’s presence. As Cassy Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, told Slate, “there is no evidence that Ray sat on the claim or was dilatory in any way.”

Murphy, by contrast, has had notice of Texas’ death chamber regulations for years. Since 2012, the state’s official policy has excluded all but prison employees from the chamber during executions. And there are no Buddhist spiritual advisers who work for the prison. This rule, unlike Alabama’s, is public. Moreover, when the state confirmed that it would not allow a Buddhist spiritual adviser to attend his execution, Murphy waited more than two weeks to file a lawsuit. In all pertinent details, Murphy’s claim was less timely than Ray’s—as both the federal district and appeals court explained in denying his suit. And when the Texas Court of Criminal Appeals rejected Murphy’s claim, one justice wrote separately to chastise his longtime attorney, David Dow, for his alleged history of attempting to thwart executions through frivolous last-minute suits.

So why did the Supreme Court spare Murphy but not Ray? In his brief concurring opinion, Kavanaugh wrote cryptically that “under all the circumstances of this case, I conclude that Murphy made his request to the State in a sufficiently timely manner”—which, again, is highly debatable. Chief Justice John Roberts and Justice Samuel Alito did not note their votes, so it is unclear if they agreed to halt the execution or dissented silently. (Only Justices Clarence Thomas and Neil Gorsuch publicly dissented.) Thus, we know with certainty only that Kavanaugh flipped.

The most generous explanation of Kavanaugh’s vote is that Kagan persuaded him that he failed to honor Ray’s constitutional rights. Her dissent in that case was so devastating, so comprehensive and meticulous, that it may have opened Kavanaugh’s eyes to the bigotry on display. Kagan described the court’s treatment of Ray as “profoundly wrong,” a direct affront to the Constitution’s “core principle of denominational neutrality.” Alabama’s justification for its flagrant “religious discrimination” was laughably pretextual. Perhaps Kavanaugh absorbed this dissent, along with widespread, bipartisan public backlash, and changed his mind. He may have also realized the horrible optics of the court’s insensitivity to the religious liberty of Muslims as it bends over backward to appease conservative Christians. Or he might just be more solicitous to the religious freedom of a white Buddhist than to that of a black Muslim.

Whatever the reason Kavanaugh flipped, it is gratifying that a majority of the court finally grasps the grave constitutional harms inflicted by discriminatory execution policies. Texas and Alabama seek to favor compel religious minorities to die without spiritual comfort. The Constitution obviously forbids such intentional religious inequality. And despite the best efforts of Texas, Alabama, and several conservative justices, executioners cannot suspend the First Amendment in their death chambers.