Murphy v. Collier

• Decision Date: 28 March 2019
• Docket Number: No. 18A985,18A985
• Citation: 139 S.Ct. 1475 (Mem),203 L.Ed.2d 633
• Parties: Patrick Henry MURPHY v. Bryan COLLIER, Executive Director, Texas Department of Criminal Justice, et al.
• Court: U.S. Supreme Court

139 S.Ct. 1475 (Mem)

203 L.Ed.2d 633

Patrick Henry MURPHY

v.Bryan COLLIER, Executive Director, Texas Department of Criminal Justice, et al.

No. 18A985

Supreme Court of the United States.

Decided March 28, 2019

Concurrence by Justice Kavanaugh, March 28, 2019

Statement by Justice Kavanaugh, May 13, 2019

Dissent by Justice Alito, May 13, 2019

ON APPLICATION FOR STAY

The application for a stay of execution of sentence of death presented to Justice ALITO and by him referred to the Court is granted. The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justice THOMAS and Justice GORSUCH would deny the application for a stay of execution.

Justice KAVANAUGH, concurring in grant of application for stay.

As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution. The government may not discriminate against religion generally or against particular religious denominations. See Morris County Bd. of Chosen Freeholders v. Freedom from Religion Foundation , 586 U. S. ––––, ––––, 139 S.Ct. 909, 909-910, ––– L.Ed.2d –––– (2019) (statement of KAVANAUGH, J., respecting denial of certiorari); Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S. ––––, –––– – ––––, 137 S.Ct. 2012, 2023–2024, 198 L.Ed.2d 551 (2017) ; Larson v. Valente , 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). 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 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.

In an equal-treatment case of this kind, the government ordinarily has its choice of remedy, so long as the remedy ensures equal treatment going forward. See Stanton v. Stanton , 421 U.S. 7, 17–18, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). 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. A State may choose a remedy in which it would allow religious advisers only into the viewing room and not the execution room because there are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

In any event, the choice of remedy going forward is up to the State. 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.^*

Statement of Justice KAVANAUGH, with whom THE CHIEF JUSTICE joins, respecting grant of application for stay.

Decided May 13, 2019

In light of Justice ALITO’s opinion dissenting from the Court’s March 28 order, I write to respectfully add two points.

1. On March 28, the Court stayed Murphy’s execution. Murphy is Buddhist and wanted a Buddhist minister in the execution room. Under Texas’ policy at the time, inmates who were Christian or Muslim could have ministers of their religions in the execution room. But inmates such as Murphy who were of other religions could have ministers of their religions only in the adjacent viewing room and not in the execution room. That discriminatory state policy violated the Constitution’s guarantee of religious equality.

On April 2, five days after the Court granted a stay, Texas changed its unconstitutional policy, and it did so effective immediately. Texas now allows all religious ministers only in the viewing room and not in the execution room. The new policy solves the equal-treatment constitutional issue. And because States have a compelling interest in controlling access to the execution room, as detailed in the affidavit of the director of the Texas Correctional Institutions Division and as indicated in the prior concurring opinion in this case, the new Texas policy likely passes muster under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq. , and the Free Exercise Clause.

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

2. I greatly respect Justice ALITO’s position that the Court nonetheless should have denied Murphy’s stay application as untimely, although I ultimately disagree. In saying that the Court should have denied a stay in this case, Justice ALITO points in part to the execution earlier this year of Domineque Ray in Alabama, where this Court did not approve a stay. But several significant differences between the two cases demonstrate why a stay was warranted in Murphy’s case but not in Ray’s case.

First , unlike Murphy, Ray did not raise an equal-treatment claim. Ray raised an Establishment Clause claim to have the State’s Christian chaplain removed from the execution room. The State of Alabama then agreed to remove the Christian chaplain, thereby mooting that claim. Notably, in the District Court, Ray expressly agreed that his Establishment Clause claim would be moot if the State removed the Christian chaplain from the execution room, as the State subsequently agreed to do. Ray also raised a RLUIPA claim to have his Muslim religious minister in the execution room and not just in the viewing room. As noted above, however, the State has a compelling interest in controlling access to the execution room, which means that an inmate likely cannot prevail on a RLUIPA or free exercise claim to have a religious minister in the execution room, as opposed to the viewing room.

To be sure, in granting Ray a stay, the Eleventh Circuit relied on an equal-treatment theory, on the idea that the State’s policy discriminated against non-Christian inmates. But Ray did not raise an equal-treatment argument in the District Court or the Eleventh Circuit. The Eleventh Circuit came up with the equal-treatment argument on its own, as the State correctly pointed out when the case later came to this Court. Amended Emergency Motion and Application to Vacate Stay of Execution in Dunn v. Ray , O. T. 2018, No. 18A815, pp. 10–11, 17. Given that Ray did not raise an equal-treatment argument, the Eleventh Circuit’s stay of Ray’s execution on that basis was incorrect.

For present purposes, the bottom line is that Ray did not raise an equal-treatment claim. Murphy did.

Second , in response to the Eleventh Circuit’s stay in Ray’s case, Alabama indicated to this Court that an equal-treatment problem, if there were one, would typically be remedied by removing ministers of all religions from the execution room (as Texas has now done). Id. , at 17. That remedy would of course have done nothing for Ray, who wanted his religious minister in the execution room . That presumably explains why Ray raised a RLUIPA claim, but did not raise an equal-treatment claim. And that further explains why it was incorrect for the Eleventh Circuit to stay Ray’s execution on the basis of an argument (the equal-treatment theory) that was not raised by Ray and that, even if successful, would not have afforded Ray the relief he sought of having his religious minister in the execution room.

Third , unlike Ray, Murphy made his request to the State of Texas a full month before his scheduled execution. Yet the State never responded to Murphy’s request to have any Buddhist minister in the execution room. The timing of Murphy’s request, when combined with the State’s foot-dragging in response and the ease with which the State could have promptly responded and addressed this discrete issue, was relevant to the assessment of the equities for purposes of the stay. See Hill v. McDonough , 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). As we have now seen, moreover, it took Texas only five days to change its discriminatory policy after a stay was granted. Texas’ prompt response in the wake of the stay further underscores that Murphy’s request was made in plenty of time for Texas to fix its discriminatory policy before Murphy’s scheduled execution. Moreover, unlike Alabama in Ray’s case, Texas did not indicate to this Court whether it would remedy any unconstitutional discrimination by allowing all ministers into the execution room or by keeping all ministers out. (After this Court granted the stay, the State of Texas chose the latter option.)

* * *

In sum, this Court’s stay in Murphy’s case was appropriate, and the stay facilitated a prompt fix to the religious equality problem in Texas’ execution protocol. That said, both the facts and the religious equality claim in Murphy’s case were highly unusual. I fully agree with Justice ALITO that counsel for inmates facing execution would be...