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The state of Texas had planned to put Patrick Murphy to death at 18 hours. CST Thursday night, but this deadline has come and gone while the Supreme Court has considered a last-minute appeal.
First an hour, then two. Finally, two and a half hours after the scheduled start time, the Supreme Court completely stopped the execution. Why? Because the Supreme Court said that Texas had to let Murphy's priest, the Buddhist pastor, Reverend Hui-Yong Shih, accompany him in his final moments in the executions room.
It was a remarkable result. Almost every execution in this country is preceded by last-minute appeals to the Supreme Court, which systematically deny them. But the result is even more remarkable, as it seems to be a reversal from a decision taken last month in Dunn v. Ray, where a Muslim prisoner sought to have an imam by his side in the execution room.
How can we make sense of these seemingly opposite results?
L & # 39; ACLU says the Court demonstrates anti-Muslim bias. But this explanation does not wash. The Supreme Court has a solid track record of protecting Muslim religious freedom, especially Muslim prisoners. Just four years ago, my law firm, the Becket Fund for Religious Freedom, won a major religious freedom case before the court, Holt v. Hobbs, a unanimous decision for a Muslim prisoner who wanted to grow a beard. And shortly thereafter, the Supreme Court ruled that Abercrombie & Fitch had refused to employ a Muslim woman, because she was wearing a hijab.
Others say it's the moment. The court cited the delay as a reason not to address the real rights and wrongs in the Muslim prisoner case. Judge Brett Kavanaugh specifically stated that he considered the Buddhist's request to be timely. But as law professor Ilya Somin pointed out, Murphy waited 15 days to seek redress after the rejection of his original request for reverend. Ray, the Muslim detainee, waited only 5 days. So, it's hard to credit that reason either.
Others suggest shame, or at least regret. Because the court had been criticized for condemning the Muslim prisoner in Alabama, he would have decided to go under pressure. In fact, at Becket, we were among those who criticized the judgment for the opposite of the basic religious rights of convicts. But the Supreme Court is used to harsh criticism, that's part of the job, and the decision has received relatively little attention in the frantic cycle of the Trump era.
The best answer? Legal arguments are still important and lawyers must give judges the facts and arguments they need to make the right decisions. Unfortunately, the case Ray was misinformed by his lawyers.
First, Ray's lawyers explained that the issue of religious freedom was a question of separation of church and state. If this sounds strange to you, it's because it's the case. The most natural way of thinking of the right of a convict to travel the last mile with his priest is the exercise of the religion of this man and not the separation of Church and State. In Murphythe court had this argument in front of them. In Ray, They did not do it.
Secondly, Ray's lawyers were engaged in what could have been a game with the death penalty at the last minute, seeking a suspension by any means necessary. In the Murphy case, on the other hand, the court had arguments against the death penalty against the fundamental principle of freedom of religion.
The proof lies in the decision of the Supreme Court. First of all, as a result of our arguments, the Supreme Court stated that execution could still take place, but only if "the state authorizes Murphy's Buddhist spiritual adviser or another Buddhist reverend chosen by the state." to accompany Murphy in the executions room. " In his concurring opinion, Kavanaugh J. relied on cases of free exercise clause and not on the separation of church and state.
This result is good news, not just for Murphy. This is good news for religious freedom. And that's good news for our courts. The truth is that we always have a judicial system that is persuaded first and foremost by arguments and principles. And when the problems are blatant and the law is blurry, presenting the right arguments can make all the difference.
Eric Rassbach is Vice President of the Becket Fund for Religious Liberty.
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