Written by Don Byrd
Earlier this year, the Supreme Court drew harsh criticism from many religious liberty advocates, and deservedly so, after overturning a federal appeals court injunction that had brought an Alabama execution to a halt at the11th hour. The inmate argued that denying him an Imam in the execution chamber while a Christian chaplain was made available violated his religious liberty rights. He was executed within hours of the Supreme Court’s reversal.
Tonight, however, the Supreme Court has done the opposite: issuing a late-night reprieve to a Texas man scheduled to be executed this evening. It appears that the issue was essentially the same: whether the state can allow inmates of certain faiths to have clergy of the same faith in the execution chamber with them, but not others. In this case, a Buddhist inmate was denied his request to have a religious leader of his own faith present in the execution chamber, but a Christian clergyman and Muslim Imam were both allowed.
In a concurring opinion, Justice Kavanaugh called that arrangement what it is: religious discrimination.
In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the concurring adjacent viewing room. But inmates of other religious denominations—for example, Buddhist inmates such as Murphy—who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions. In my view, the Constitution prohibits such denominational discrimination.
For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.
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.
Where was this belief when the Alabama case went before the Supreme Court? BJC Executive Director Amanda Tyler called the court’s ruling in that case an “astonishing display of Christian preferentialism that threatens everyone’s religious freedom.” Kavanuagh leaves open the possibility that the state will simply disallow all clergy in the execution chamber, which would be a cruel outcome in its own right. But religious preferentialism only compounds the problem. The Supreme Court appears to have done the right thing, this time.