Supreme Court Sees 2 Similar Death Penalty Questions Very Differently

Two Supreme Court decisions just hours before a scheduled execution. Two decisions just seven weeks apart. Two decisions on the same issue. Except that in one, a Muslim was put to death without his imam allowed with him in the execution chamber, and in the other, a Buddhist's execution was temporarily halted because his Buddhist minister was denied the same right.

The two apparently conflicting decisions are so puzzling that even the lawyers are scratching their heads and offering explanations that they candidly admit are only speculative.

On Feb. 7, the Supreme Court, by a 5-4 vote, ruled that Alabama could go ahead with its execution of Domineque Hakim Ray, a Muslim man convicted of murder. The 11th Circuit Court of Appeals had temporarily blocked the execution because the state barred the condemned man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

Supreme Court Justice Elena Kagan, writing for the four dissenters, called the decision "profoundly wrong."

Commentary from the right, left and center denounced the decision as a violation of Constitution's ban on favoring one religion over another.

"The case is another that can be cited by those who rightly observe two rules for religious liberty in this country — one for Christians, and one for everyone else," the Baptist Joint Committee for Religious Liberty said.

"The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death," wrote David French in the conservative National Review.

"In my 30 years of writing about religious freedom, I can't recall a case as outrageous," wrote the more liberal Yale Law professor Stephen Carter, a Bloomberg opinion columnist.

Fast forward now to the evening of March 28, the court, this time by a 7-2 vote, granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been scheduled to die that night and who had been denied a Buddhist religious adviser at his side in the death chamber.

So what is the difference between the two cases?

In the first, the conservative court majority said the Muslim prisoner waited too long to ask for an imam. The execution date was set in November, the court said, and the condemned man waited until 10 days before his scheduled execution to ask for his religious adviser to be with him.

Why didn't his lawyers make the request earlier?

"We didn't know," says John Anthony Palombi, the federal public defender who first met with Ray two weeks before the execution.

In that first meeting, the condemned man told the lawyers that he wanted his imam present with him when he died and that the warden had told him a day earlier that would not be possible.

Palombi notes that Alabama does not have a public execution protocol, and Ray had thought that because his imam had been cleared to visit with him regularly in his cell, including the holding cell 20 feet from the death chamber, the imam could also be with him in the death chamber. Not so.

In court, Alabama said that its protocol provides that only Department of Corrections employees, including a Christian minister, are allowed in the death chamber.

Prison officials cited security concerns, saying a nonemployee might disrupt the process or faint. That wasn't enough for the 11th Circuit panel of judges, who stayed the execution on Feb. 6 to consider the question of religious discrimination. A day later, the Supreme Court lifted the stay without explanation, except to say that Ray waited too long to object to his imam's exclusion.

The court's contrary decision seven weeks later came in the case of Patrick Henry Murphy, a Buddhist, scheduled to die in Texas. After learning of the Ray decision, Buddhist Murphy filed his request for his religious adviser to be with him at his scheduled execution 30 days later.

The Rev. Hui-Yong Shih had long been allowed in the prison to advise Murphy. He was even in his cell, just five or six strides from the death chamber, on the day Murphy was to be executed.

Texas, unlike Alabama, has a public execution protocol that allows a condemned prisoner to be "accompanied" by his religious adviser for the execution. But the state interprets that language to mean only religious advisers who work for the Texas Department of Criminal Justice. There is a Christian minister who qualifies and an imam, but not a Buddhist.

Murphy's lawyer, David Dow, of the University of Houston Law Center, couldn't have been more surprised when his client, unlike Ray, was spared this week, temporarily.

This time, the high court said that Texas could not carry out the execution unless the state appealed for a full hearing on the issue before the justices or unless the state allowed Murphy to have with him in the death chamber either his Buddhist religious adviser or another Buddhist minister of the state's choosing.

Justices Clarence Thomas and Neil Gorsuch dissented. They would have let the execution go forward.

Justice Brett Kavanaugh, writing for himself alone, said that in his view, the state has to treat all denominations "equally." That means, he said, either the condemned, regardless of faith, must be allowed to have a religious adviser of the same faith in the death chamber or all religious advisers must view the execution from a separate room with other witnesses. "The choice is up to the state," he said.

Normally, slicing the legal salami this thinly is unusual at the Supreme Court, but it's close to unheard of to have two such divergent outcomes in two cases within just a matter of weeks. Neither lawyer Dow nor lawyer Palombi had what he considered a satisfactory explanation.

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