Weeks Later, Supreme Court Still at Odds on Buddhist Execution Case

Greg Stohr

(Bloomberg) -- It’s been six weeks since a divided U.S. Supreme Court halted the scheduled Texas execution of a murderer who sought to have his Buddhist spiritual adviser in the death chamber.

Some of the justices still aren’t ready to let the dispute go.

In a pair of highly unusual after-the-fact opinions, the court’s conservative justices Monday aired disagreements that were largely muffled when the court blocked Patrick Henry Murphy’s lethal injection on March 28.

Justice Samuel Alito, who hadn’t previously made his views public, said he would have rejected the request because Murphy waited too long to make it. Alito, joined by conservative Justices Clarence Thomas and Neil Gorsuch, faulted Murphy for not filing suit in federal court until two days before the scheduled execution.

"Murphy egregiously delayed in raising his claims," Alito wrote. "By countenancing such tactics, the court invites abuse."

Alito’s opinion prompted a rebuttal from Justice Brett Kavanaugh, who had voted to block the execution. Kavanaugh accused Texas of "foot-dragging" after Murphy made his request, a month before the scheduled execution, to have his Buddhist adviser alongside him.

Texas policy at the time would have allowed a Christian chaplain in the death chamber but required Murphy’s Buddhist adviser to be in an adjacent viewing room.

"That discriminatory state policy violated the Constitution’s guarantee of religious equality," Kavanaugh wrote for himself and Chief Justice John Roberts on Monday.

Like Alito, Roberts hadn’t previously said where he stood on the matter. The March 28 order was issued by the court as a whole and didn’t say how all the individual justices voted.

Policy Changed

Five days after the order, Texas changed its policy to require all spiritual advisers, including Christians, to be in the viewing room outside the death chamber. The change fixed the constitutional problem, Kavanaugh said Monday.

"Put simply, this court’s stay facilitated the prompt resolution of a significant religious equality problem with the state’s execution protocol," Kavanaugh wrote.

Texas contended that its prior chaplain policy was neutral toward religious denominations. Under the state’s rules, the only clerics permitted in the death chamber were those who either worked for or were approved by the state’s Department of Criminal Justice.

Alito said he would have viewed the case differently had Murphy pressed his request earlier. The justice said the previous policy "raises serious questions" under the Constitution and a religious-freedom law.

The March 28 order marked a shift for the court, which in February voted 5-4 to let Alabama execute a Muslim man without his imam in the death chamber.

Murphy, 57, who remains on death row, was sentenced for his role in the 2000 murder of police officer Aubrey Hawkins. Murphy was part of a group of seven inmates who escaped from a Texas prison and killed Hawkins during a robbery. Murphy had previously been convicted of sexual assault.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Anna Edgerton

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