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A Stay of Execution

March 29, 2019

Never let it be said that I’m not willing to admit I’m wrong! And despite the inevitable discomfort attendant on admitting an error,  I was never so thrilled to BE wrong!! 

 

In a recent blog, I discussed the case Dunn v. Ray, in which the Supreme Court, on partisan lines, refused to stay the execution of a Muslim man who requested to have his imam in the execution chamber with him, instead of the prison’s Christian chaplain.  The legal issues in the case were clear.  Based on the evidence at hand it seemed obvious to me that the Court’s failure to allow his case to be heard in full implied that the majority of the Court had deliberately rejected the doctrine of religious neutrality—the long-standing legal doctrine that government must be neutral toward all religions and is not allowed to favor one religion over another. 

 

But in a fascinating twist, just weeks later, the Court has decided another case, Murphy v. Collier, on almost identical facts, except that it involved a Buddhist inmate. In this case, the Court made it clear that they supported religious neutrality.  Justice Kavanaugh’s concurrence clearly established that the law requires the inmate to be treated equally to inmates of other religions.  Kavanaugh said the prison had two choices—to allow Mr. Murphy to have his Buddhist spiritual adviser present in the execution chamber, or to ban all clergy from the execution chamber.  But he made it clear that the law requires equal treatment.[1] 

 

I still believe that my prior conclusion regarding the Ray case majority’s motivation was supported by the evidence available at the time.  As Justice Kagan's dissent made clear, the legal doctrine was not in dispute, nor were the facts of the case.  The prison’s actions clearly conflicted with the legal doctrine.  I still do not believe the Court’s stated reason for its decision—the inmate’s undue delay in filing his appeal—was credible.  Justice Kagan clearly did not believe that either, and a credible alternative motivation still is not apparent.

 

Ilya Somin, a Law Professor at George Mason University, in comparing the two cases, pointed out even more reasons to be skeptical of the Court’s claims that timeliness was their motivation in deciding Ray.  He pointed out that in the Fifth Circuit decision in the Murphy case, which relied upon the decision in Ray, the court made a convincing argument that Mr. Murphy’s appeal was even less timely than Mr. Ray’s.

 

“As the district court rightfully recognized, the proper time for raising such claims has long since passed. Murphy’s execution date was set on November 29, 2018. By his counsel’s admission, he waited until February 28 to first request that the state allow Murphy’s preferred spiritual advisor to not just meet with him prior to entering the chamber and watch from the viewing room, but actually enter the execution chamber with him. He then waited until March 20—eight days before the scheduled execution—to raise his First Amendment and RLUIPA claims with the Texas Court of Criminal Appeals. Those claims were not raised before the federal district court until March 26— two days before the scheduled execution—and an appeal was not brought before this court until March 27—the day before the scheduled execution.”[2]

 

So there is good reason to doubt the genuineness of the Court’s supposed interest in timely executions.  And I’m not the only one who’s confused about why the Court would seemingly have reversed its position on almost identical cases within a few weeks.  Professor Somin’s reflections on the possible motivations of the Justices interestingly parallel my thoughts when I first heard of the decision.  

 

“The most cynical explanation is that Murphy is a Buddhist, not a Muslim like Ray was. On this view, the three conservative justices have nothing against Buddhists, but are prejudiced against Muslims. But this theory seems unlikely, given that the justices surely realize that this case is going to set a precedent for lower courts in cases involving Muslim defendants, as well. And, as I pointed out in my post on Ray, the justices in question have ruled in favor of a number of other religious-liberty claims filed by Muslims. The Court's ruling in the Trump travel ban case is often cited as a counterexample. I am no fan of that awful decision. But the double standard there is one between discrimination in immigration policy and domestic discrimination, not between discrimination against Muslims and discrimination against other groups.

 

“A more likely reason, in my view, is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court's reputations. Presented with a chance to "correct" their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.

 

“And, whatever can be said about the procedural question, it's a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one.  Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.[3]

 

I believe that his conclusion is probably the correct one.  The timing of the two cases is too close, and facts of the two cases too eerily similar for this to be a coincidence.  It seems to me that the outrage caused by the Ray case likely caused the Court to rethink their position in Ray and realize that they needed a do-over, to make it clear that they were not intending to eviscerate neutrality--the linchpin of religious liberty rights.  It appears that they realized there were a lot of people who would reasonably interpret the decision the way I did. 

 

Whatever the Court’s motivation, this case demonstrates that the majority of the Court is still supporting the long-established doctrine of religious neutrality—at least when it comes to “substantive” individual rights.  This is very good news!

 

There are several fascinating aspects of this case.  In addition to the mystery of why the Court reversed itself, there’s the fascinating development that Kavanaugh, who had been shaping up as a hard-line conservative along the lines of Justice Thomas, has here distinguished himself as an unlikely advocate for religious neutrality. 

 

After quoting the same cases which Justice Kagan used in her dissent just a few weeks ago, his reasoning, “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,”[4] is remarkably un-Thomas-like.  In fact, it sounds like a mainstream moderate.  Is Kavanaugh perhaps going to turn out to be less of a threat to broad religious rights than we feared?

 

Another intriguing aspect to this case is that it appears to suggest that Kavanaugh may not be in sympathy with Thomas’ doctrine of non-neutrality, which I’ve discussed in prior blogs.  Thomas has opined that the Constitution allows favoring “monotheists” over others.  And this case involves a Buddhist (a non-monotheist) whom Kavanaugh has unequivocally stated is entitled to equal rights.

 

Of course, Thomas’ doctrine of non-neutrality has so far been expressed only in limited contexts involving ceremonial issues like public prayer and public monuments, and has not extended to substantive individual rights to religious practice.  So this decision may not really be an indication of anything other than Kavanaugh’s respect for long-established precedent.  But it's a small positive signal that he might not be quite as bad for religious liberty as we feared. (Presumably, we'll be better able to make a judgment on Kavanaugh's exact position on "ceremonial neutrality" when the Bladensburg Cross decision comes out.)

 

But too much should not be made of Kavanaugh’s concurrence.  This is a case which involves clear, unambiguous and well-established constitutional interpretation.  A responsible constitutional jurist really HAS to come out this way in this case. 

 

(Of course, in my opinion, there are Justices on the Court who are NOT responsible constitutional jurists.  Mentioning no names, naturally, Justice Thomas!) 

 

Additionally, it’s noteworthy and ominous that Justices Gorsuch and Thomas dissented from the decision to grant the stay of execution.  What this means is not clear since they did not write opinions explaining their reasoning.  

 

But in Thomas case, at least, it could suggest that he may be willing to extend his non-neutrality doctrine beyond mere ceremonial acts of government into the area of substantive religious rights, like the right to clergy at one’s execution.  This would be a very disturbing development!

 

Or he could be applying his notorious theory that the Establishment Clause doesn't apply to the states at all!

 

Thank God, Dunn v. Ray has turned out not to be the herald of the Court’s immediate intent to gut the religious neutrality doctrine.  So in that sense it is very good news.  

 

However, it makes no change to the trend of the Court over the past several decades (discussed in prior blogs) to broaden religious rights for Christians and narrow them for everyone else, nor to the Court's open animosity toward separation of church and state.  

 

The case indicates that Thomas has not suspended his fanatical campaign to destroy the Establishment Clause.  In fact, it appears he may have taken the battle to new territory, and has maybe even picked up an ally in Justice Gorsuch, his "ideological twin." So, given those factors, this may turn out to be just a temporary stay of execution for the Establishment Clause. 

 

[1] Murpy v. Collier, 587 U. S. ____ (2019)

 

[2] Murphy v. Collier, No. 19-70007 (5th Cir. Mar. 27, 2019)

 

[3]  https://reason.com/volokh/2019/03/29/supreme-court-stays-execution-in-death-p

 

[4] Murpy v. Collier, 587 U. S. ____ (2019)

 

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