Texas 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.
On Wednesday, the Houston Chronicle’s Keri Blakinger reported that the state has retooled its policy after the Supreme Court blocked the execution of Buddhist inmate Patrick Henry Murphy. Previously, Texas provided either a chaplain or an imam to Christian and Muslim inmates as they receive lethal injections—but prisoners of any other faith had to die alone. Murphy sued, alleging a violation of his religious liberty, and the Supreme Court agreed. In a concurring opinion, Justice Brett Kavanaugh explained that, under the First Amendment, Texas could not provide the benefit of a spiritual adviser to some inmates while denying it to religious minorities like Murphy.
But Kavanaugh’s opinion in Murphy v. Collier helpfully laid out some options for the state to speed along Murphy’s eventual demise. “In an equal-treatment case of this kind,” the justice wrote, the government has “at least two possible equal treatment remedies available”: Texas can either “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 [emphasis mine].”
It now appears that Texas has implemented Kavanaugh’s second proffered remedy. The new prison guidelines—implemented less than a week after the Supreme Court put Murphy’s execution on hold—declare that spiritual advisers “designed by the offender” can “observe the execution only from the witness room.” In other words, chaplains and imams may no longer pray with the inmate as he is put to death. Texas apparently prefers to curtail the religious liberty of all inmates rather than extend existing privileges to those who hold minority faiths.
There is, however, some tension between Kavanaugh’s opinion—which would undoubtedly permit what Texas wants to do here—and the actual order of the court. Its brief order stated that Texas “may not carry out Murphy’s execution” as the prisoner pursues his appeal on the merits, unless it “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.” Unlike Kavanaugh, the court did not say that Texas can carry out the execution as soon as it adopts a blanket policy denying clergy access to the death chamber.
The Supreme Court’s order is the law; Kavanaugh’s concurrence is not. That means Texas still cannot execute Murphy until it either allows a Buddhist reverend to accompany his execution or receives permission from the court to kill him without a reverend’s presence. In other words, we will soon learn if a majority of the court supports Kavanaugh’s equal-treatment solution, or if at least five justices will refuse to let Texas skirt the First Amendment so easily.
It is the “clearest command” of the First Amendment’s Establishment Clause, the court has ruled, that “one religious denomination cannot be officially preferred over another.” By taking away rights from all denominations, Texas seeks to wriggle out from under the Constitution and secure its right to kill Murphy. Kavanaugh has already announced that he’s fine with this gruesome gamesmanship. But until a majority of the court authorizes it, Texas cannot lawfully use its new policy to execute Murphy without the comfort of a Buddhist reverend by his side.