Cite as: 587 U. S. ____ (2019)

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KAVANAUGH, J., concurring

SUPREME COURT OF THE UNITED STATES
PATRICK HENRY MURPHY v. BRYAN COLLIER,
EXECUTIVE DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, ET AL.
ON APPLICATION FOR STAY
No. 18A985.

Decided March 28, 2019

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. ___, ___ (2019) (statement of
KAVANAUGH, J., respecting denial of certiorari) (slip op., at
2); Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U. S. ___, ___–___ (2017) (slip op., at 13–14); Larson v.
Valente, 456 U. S. 228, 244 (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

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KAVANAUGH, J., 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.
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 (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.
——————
 Under all the circumstances of this case, I conclude that Murphy

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KAVANAUGH, J., concurring

——————
made his request to the State in a sufficiently timely manner, one
month before the scheduled execution.