An Inconsistent SCOTUS Rules Against Religious Discrimination on Death Row

Last month I wrote about Domeneque Ray, the Alabama death row inmate who was denied the right to have an imam present in the chamber when he was executed. Ray filed for a stay, alleging that Christian inmates had the benefit of a Christian chaplain at their side, while he and the condemned of other faiths were denied the cleric of their choosing. The stay was granted by the lower court, but SCOTUS overturned it, claiming Ray waited too long to raise the issue (which, according to Ray, was because he was not told of the protocol until then.) Ray was executed without his religious adviser at his side. Now, SCOTUS has granted a stay on the same issue to Patrick Henry Murphy, a Buddhist on Texas’s death row who alleges only Christians and Muslims in the state are allowed their chosen cleric in the execution chamber.

Writing a concurrence to the brief paragraph granting the stay, Justice Kavanaugh opined that, in his view “the Constitution prohibits such denominational discrimination.” He further wrote that the state had two options: allow all condemned inmates to have the religious adviser of their choosing in the execution chamber; or not allow any religious adviser in the room (in the latter case, the chosen cleric could be present in the viewing room.) In a footnote, without directly referencing Domeneque Ray, Kavanaugh concluded that Murphy’s application for stay was “sufficiently timely”.

Interestingly, Kavanaugh sided with the conservative majority in Ray’s case, which was a 5-4 split (with the liberal justices in all joining in a dissent by Kagan.)  Murphy was 7-2 in favor of the inmate, with only Alito and Gorsuch dissenting. So what was the difference? What distinguished Patrick Murphy’s case from that of Domeneque Ray?

The Court seems to hold that the difference is based on the time frame in which each man raised the issue. It is unclear whether they mean the first time each man asked the state for his cleric of choice or the date on which they formally requested a stay through the courts. So let’s consider the time frames:

Domeneque Ray

Domeneque Ray

Order setting date issued: November 6, 2018.

Scheduled execution date: February 7, 2019.

Date of request to state: January 23, 2019 (78 days after scheduling; 15 days prior to execution.)

Date legal relief sought: January 28 (83 days after scheduling, 10 days prior to execution.)

Patrick Murphy

Patrick Murphy

Order setting date issued: November 29, 2018.

Scheduled execution date: March 28, 2019.

Date of request to state: March 1, 2019 (91 days after scheduling; 27 days prior to execution.)

Date legal relief sought: March 12, 2019 (102 days after scheduling; 16 days prior to execution.)

So, who was timelier in bringing their complaint and by how much depends on which standard you want to use. Going by how long it took the men to bring their complaints after their death date was set, Ray was significantly timelier.  But in Ray’s case, the Court cited January 28th, the date Ray sought formal legal relief. Based on that, the difference between the two men-the difference in what made their request timely versus untimely-was 6 days. Less than one week.

In Murphy’s case, however, in Justice Brent Kavanaugh’s concurrence, his footnote indicates that Murphy “made his request to the State in a sufficiently timely manner, one month before the scheduled execution”, which appears to refer to the date on which Murphy first asked the state for a Buddhist advisor. By that standard, Murphy was faster by 12 days. No matter which standard used, the determination of timeliness is arbitrary, not based on any clear standard in the law, and inconsistently applied from one case to the next.

On the upside, SCOTUS’ order signals their opinion that the type of religious discrimination suffered by both Ray and Murphy is unconstitutional and will not stand. While Murphy’s case is at present only a stay while his claim makes its way through the lower courts, the writing on the wall seems to clearly indicate that the high Court would rule in favor of either everyone, or no one, having the cleric of their choosing in the death chamber when their time comes.

Unfortunately for Domeneque Ray, he’s already dead. But one need not have sympathy for Ray or object to the death penalty to see an injustice here. It may be that no condemned inmate will have the comfort of his spiritual leader at his side when the state puts him to death; so long as all are afforded equal treatment, justice in that regard is done. Let’s hope that every death row in the country gets the message.