Written by Don Byrd
In his opinion concurring with the Supreme Court’s decision to halt an execution in Texas, Justice Brett Kavanaugh seemed to provide the state with a choice, if it wanted his vote. To overcome a charge of religious discrimination for refusing a Buddhist inmate’s request to have his spiritual advisor with him during his execution, prison officials could either grant his request or must stop allowing any clergy at all from attending to prisoners in the execution chamber.
What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.
Faced with these two alternatives, the State of Texas today announced it has banned all chaplains from the execution chamber. Texas Tribune has more details in its report:
New execution procedures signed Tuesday say that chaplains and ministers may “observe the execution only from the witness rooms.” Currently, friends and family of the murder victims and prisoners, as well as media, are allowed to watch executions through a glass window in small rooms adjacent to the death chamber.
Under the policy, prisoners will still be able to meet with a TDCJ chaplain or a spiritual adviser “who has the appropriate credentials” on the day of execution.
As I wrote last week, Kavanaugh’s ban-them-all solution is a cruel outcome, though perhaps even-handed. Refusing a condemned inmate’s desire to receive spiritual comfort at the moment of death is no way to advance the cause of religious liberty, even if it defuses a charge of religious discrimination. But religious discrimination was not the only claim here, and Kavanaugh wrote only for himself on the court. Denying a religious advisor in such a moment arguably amounts to a violation of free exercise rights, so we may not have heard the end of this case or this issue.
In case you missed it, BJC Executive Director Amanda Tyler wrote a piece for Religion News Service about the recent Alabama and Texas cases before this development.