                 Cite as: 587 U. S. ____ (2019)            1

                   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 Mur-
phy’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 dis-
crimination against religion—in particular, discrimination
against religious persons, religious organizations, and
religious speech—violates the Constitution. The govern-
ment may not discriminate against religion generally or
against particular religious denominations. See Morris
County Bd. of Chosen Freeholders v. Freedom from Reli-
gion 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 rele-
vant 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
2                        MURPHY v. COLLIER

                       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 execu-
tions. In my view, the Constitution prohibits such denom-
inational 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 associat-
ed 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 pro-
cedures. 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
                   Cite as: 587 U. S. ____ (2019)               3

                    KAVANAUGH, J., concurring




——————
made his request to the State in a sufficiently timely manner, one
month before the scheduled execution.
                  Cite as: 587 U. S. ____ (2019)           1

                   KAVANAUGH
                 Statement    , J., concurring J.
                           of KAVANAUGH,

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 May 13, 2019

   Statement of JUSTICE KAVANAUGH, with whom THE
CHIEF JUSTICE joins, respecting grant of application for
stay.
   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 minis-
ters 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 reli-
gious 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 execu-
tion room. The new policy solves the equal-treatment
constitutional issue. And because States have a compel-
ling interest in controlling access to the execution room, as
detailed in the affidavit of the director of the Texas Cor-
rectional 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
2                  MURPHY v. COLLIER

                 Statement of KAVANAUGH, J.

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 dis-
criminatory 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 war-
ranted 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 reli-
gious 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
                 Cite as: 587 U. S. ____ (2019)           3

                 Statement of KAVANAUGH, J.

relied on an equal-treatment theory, on the idea that the
State’s policy discriminated against non-Christian in-
mates. But Ray did not raise an equal-treatment argu-
ment in the District Court or the Eleventh Circuit. The
Eleventh Circuit came up with the equal-treatment argu-
ment 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 argu-
ment, 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 dis-
4                    MURPHY v. COLLIER

                  Statement of KAVANAUGH, J.

crete issue, was relevant to the assessment of the equities
for purposes of the stay. See Hill v. McDonough, 547 U. S.
573, 584 (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 re-
quest was made in plenty of time for Texas to fix its dis-
criminatory 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 un-
constitutional 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 appro-
priate, 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
well advised to raise any potentially meritorious claims in
a timely manner, as this Court has repeatedly empha-
sized. See generally Gomez v. United States Dist. Court
for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per
curiam).
                  Cite as: 587 U. S. ____ (2019)             1

                      ALITO, J., dissenting

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 May 13, 2019

   JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting from grant of applica-
tion for stay.
   Patrick H. Murphy, who was convicted and sentenced to
death in 2003, was scheduled to be executed at 7 p.m. on
March 28. Murphy’s attorneys waited until March 26
before filing this suit in Federal District Court. The com-
plaint they filed challenges a feature of the Texas execu-
tion protocol that has been in place and on the public
record since 2012. The complaint claims that the Texas
protocol violates the First Amendment and the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., inso-
far as it permits only a prison chaplain and not any out-
side cleric to be present in the room where executions are
carried out. Murphy is a Buddhist, and none of the more
than 100 Texas prison chaplains is a Buddhist priest.
   In carefully reasoned opinions based squarely on prece-
dents of this Court, both the District Court and the Court
of Appeals rejected Murphy’s request for a stay of execu-
tion due to his dilatory litigation tactics, see 919 F. 3d 913,
916 (CA5 2019); 2019 WL 1369001, *1 (SD Tex., Mar. 26,
2019). Then, on the afternoon of March 28, only hours
before his execution was scheduled to occur, Murphy
asked this Court to block his execution. And despite his
inexcusable delay in raising his claims, the Court granted
Murphy’s request.
2                            MURPHY v. COLLIER

                              ALITO, J., dissenting

  I did not agree with the decision of the Court when it
was made. Because inexcusably late stay applications
present a recurring and important problem and because
religious liberty claims like Murphy’s may come before the
Court in future cases, I write now to explain why, in my
judgment, the Court’s decision in this case was seriously
wrong.
                               I
  In 2000, while serving a 55-year sentence for aggravated
sexual assault, Murphy and six other inmates executed a
well-planned, coordinated, and violent escape from a
Texas prison. About two weeks later, on Christmas Eve,
the group robbed a sporting goods store and killed Irving,
Texas, police officer Aubrey Hawkins when he arrived at
the scene. The escapees shot Hawkins 11 times, dragged
him from his vehicle, drove over him, and dragged his
body for some distance. Six of the seven were eventually
captured, convicted of capital murder, and sentenced to
death. See Murphy v. Davis, 737 Fed. Appx. 693, 696–697
(CA5 2018); Murphy v. State, 2006 WL 1096924, *1, *4
(Tex. Crim. App., Apr. 26, 2006). Murphy was convicted
and sentenced in 2003, and his direct appeal ended in
2007. Murphy v. Texas, 549 U. S. 1119 (2007). During the
next 11 years, he unsuccessfully pursued postconviction
relief in state and federal court. See Murphy v. Davis, 737
Fed. Appx., at 695, 699, 709. In November 2018, the State
obtained a death warrant setting Murphy’s execution for
March 28, 2019.
  By this time, Murphy had become a Pure Land Bud-
dhist. According to his papers, he converted nearly a
decade ago and has been visited by a Buddhist priest, Rev.
Hui-Yong Shih, for the past six years.1 In 2012, Texas
made publicly available its policy regarding the presence
——————
    1 See   Pet. for Prohibition in In re Murphy, No. 18–8615, pp. 12–13.
                 Cite as: 587 U. S. ____ (2019)            3

                     ALITO, J., dissenting

of a member of the clergy in the room where an execution
by lethal injection is carried out. Under that policy, any of
the prison system’s chaplains, but no other cleric, may
enter this room. Texas has more than 100 chaplains, who
are either employees of or under contract with the prison
system. These chaplains include Christians, Muslims,
Jews, and practitioners of a Native American religion, but
no Buddhist priest. The inadequate record compiled in
this case does not explain the reason for this omission. It
does not tell us how many Texas prisoners are Buddhists,
whether any Texas prisoners ever requested a Buddhist
chaplain, whether Texas made any effort to recruit such a
chaplain, or whether any Buddhist priest is willing to do
whatever is needed to serve as a chaplain. Nor do we
know anything about the vetting of potential chaplains,
any general training that chaplains receive, and any
special orientation provided to a chaplain who accompa-
nies a prisoner during the process of execution. And we
also do not know what a chaplain is permitted to do during
an execution or whether there are specific restrictions on
movements or sounds that might interfere with the work
of those carrying out an execution.
   On February 28, 2019, about three months after Mur-
phy’s execution date was set, his attorneys wrote to the
general counsel of the Texas Department of Criminal
Justice and inquired whether Rev. Shih would be permit-
ted to enter the execution room with their client, and on
March 5, the department responded that only a chaplain is
permitted in the room. Two days later, Murphy’s attorney
responded and said that he believed Murphy would be
satisfied with a Buddhist chaplain but that he assumed
none of Texas’s chaplains were Buddhists. Texas did not
respond and Murphy’s attorneys never renewed their
inquiry.
   After receiving Texas’s response, Murphy’s attorneys
waited 15 days—until March 20—before challenging this
4                        MURPHY v. COLLIER

                          ALITO, J., dissenting

decision in state court. The state court rejected the claim
as untimely late in the evening of March 25, see In re
Murphy, No. WR–63,549–02 (Tex. Crim. App., Mar. 26,
2019), p. 3, and on March 26, Murphy’s lawyers filed this
lawsuit in federal court. They asked the District Court to
grant a stay of execution, but the District Court refused,
citing the well-established rule that a stay of execution is
an equitable remedy that should not be granted to an
applicant who engages in inexcusably dilatory litigation
tactics. 2019 WL 1369001, *1, *5. On March 27, the
Court of Appeals for the Fifth Circuit likewise refused to
grant a stay, holding that the District Court had not
abused its discretion in denying that relief. See 919 F. 3d,
at 916.
   On March 28, at about 1 p.m.—six hours before the
scheduled time of Murphy’s execution—his attorneys
brought his religious liberty claims to this Court. They
filed, among other things, an application for a stay of
execution pending the filing of a petition for a writ of
certiorari.2 At about 4 p.m., Texas filed a response, and
shortly after 9 p.m., more than two hours after the time
scheduled for Murphy’s execution, the Court issued an
order staying Murphy’s execution unless the State allowed
Rev. Shih “or a Buddhist reverend of the State’s choosing”
to accompany Murphy during the execution. Ante, p. ___.
Murphy’s death warrant was set to expire at midnight on
March 28, and Texas announced that Murphy’s execution
would not proceed. Under Texas law, a new death war-
rant may be issued, but such a warrant may not set a date
less than 90 days in the future. Tex. Code Crim. Proc.
Ann., Art. 43.141(c) (Vernon 2018).



——————
  2 They also filed a petition for a writ of prohibition and an application

for a stay pending the consideration of that petition.
                  Cite as: 587 U. S. ____ (2019)             5

                      ALITO, J., dissenting

                              II
   “[A] stay of execution is an equitable remedy. It is not
available as a matter of right, and equity must be sensi-
tive to the State’s strong interest in enforcing its criminal
judgments without undue interference from the federal
courts.” Hill v. McDonough, 547 U. S. 573, 584 (2006). An
applicant for a stay of execution must satisfy all the tradi-
tional stay factors and therefore must show that there is
“a reasonable probability that four Justices will consider
the issue sufficiently meritorious to grant certiorari,” that
there is “a fair prospect that a majority of the Court will
vote to reverse the judgment below,” and, in a close case,
that the equities favor the granting of relief. Hol-
lingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).
   A court must also apply “a strong equitable presumption
against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the
merits without requiring entry of a stay.” Nelson v.
Campbell, 541 U. S. 637, 650 (2004); see also Gomez v.
United States Dist. Court for Northern Dist. of Cal., 503
U. S. 653, 654 (1992) (per curiam) (noting that the “last-
minute nature of an application” or an applicant’s “at-
tempt at manipulation” of the judicial process may be
grounds for denial of a stay).
   Thus, in granting a stay in this case, the Court must
have concluded that there is a reasonable probability that
we will grant review of the question whether the District
Court abused its discretion in finding that Murphy’s delay
in raising his religious liberty claims disentitled him to
the equitable remedy of a stay. We do not generally grant
review of such factbound questions. See this Court’s Rule
10. But in death penalty matters, it appears, ordinary
procedural rules do not apply, see Madison v. Alabama,
586 U. S. ___, ___ (2019) (ALITO, J., dissenting) (slip op., at
2). And in light of the dissent in Dunn v. Ray, 586 U. S.
___ (2019)—about which I will say more later—I do not
6                   MURPHY v. COLLIER

                     ALITO, J., dissenting

contest the Court’s prediction about the probability of
certiorari (as opposed to its propriety).
   The likelihood of review, however, is not enough to
justify a stay, so the Court’s decision must also mean that,
in its view, there is a significant likelihood that Murphy
will succeed in showing that the District Court abused its
discretion. And that I do contest. It is established that
“[a] court may consider the last-minute nature of an appli-
cation to stay execution in deciding whether to grant
equitable relief,” Gomez, supra, at 654, and the District
Court’s decision—and the Fifth Circuit’s affirmance—
cannot reasonably be thought to represent anything other
than the careful and measured consideration of that mat-
ter. It is particularly remarkable to conclude that the
District Court abused its discretion by ruling exactly as we
had less than two months earlier. Compare 2019 WL
1369001, *3 (relying on Gomez to deny untimely stay
application), with Dunn v. Ray, supra, at ___ (same).
   By granting a stay in this case, the Court disregards the
“strong equitable presumption” against the grant of such
relief when the applicant unreasonably delayed in raising
the underlying claims. This presumption deserves greater
respect because it serves many important interests.
   First, it honors a State’s strong interest in the timely
enforcement of valid judgments of its courts. See In re
Blodgett, 502 U. S. 236, 239 (1992) (per curiam). In this
case, direct review of the judgment ended more than a
decade ago. Moreover, if a State is pressured to modify a
rule adopted for security reasons, the State has a legiti-
mate claim to be given sufficient time to consider whether
acceptable modifications are possible.
   Second, eleventh-hour stay requests can impair valid
interests of the federal courts. When courts do not have
adequate time to consider a claim, the decisionmaking
process may be compromised. And last-minute applica-
tions may disrupt other important work.
                  Cite as: 587 U. S. ____ (2019)            7

                      ALITO, J., dissenting

   Third, the hasty decisionmaking resulting from late
applications may harm the interests of applicants with
potentially meritorious claims. Attorneys do not serve
such clients well by unduly delaying the filing of claims
that hold a real prospect of relief.
   Finally, the cancellation of a scheduled execution only
hours before (or even after) it is scheduled to take place
may inflict further emotional trauma on the family and
friends of the murder victim and the affected community.
   In the present case, Murphy cannot overcome the pre-
sumption against last-minute applications. As I will
explain, see Part III, infra, his religious liberty claims are
dependent on the resolution of fact-intensive questions
that simply cannot be decided without adequate proceed-
ings and findings at the trial level. Those questions can-
not be properly resolved in a matter of hours on a woefully
deficient record. But that is precisely what Murphy asked
of the lower courts and this Court.
   As of at least 2013, Murphy and his attorneys knew or
had reason to know everything necessary to assert the
claim that the First Amendment and RLUIPA entitled
him to have Rev. Shih at his side during his execution. By
that date, Murphy had converted to Pure Land Buddhism,
had begun to see Rev. Shih, and should have been aware
of the Texas policy now at issue. Had Murphy begun to
pursue his claims at that time, they could have been
properly adjudicated long ago.
   Even if Murphy is not held responsible for failing to act
in 2013 or shortly thereafter, he and his attorneys certainly
should have been spurred to action when, in November of
last year, his execution date was set. Instead, his lawyers
waited three months before writing to the Texas Depart-
ment of Criminal Justice. How can that be justified?
   Then, after receiving word on March 5 that Texas would
adhere to its long-established policy, the attorneys waited
three more weeks before filing suit. While they blame
8                       MURPHY v. COLLIER

                          ALITO, J., dissenting

Texas’s failure to respond to their second e-mail for their
delay, that is simply untenable. If they could not act
without further communication from Texas, why did they
fail to follow up with the State? Why did the attorneys
decide they could file on March 20 in state court without
further response from Texas but not before? What justi-
fied that delay? And why didn’t the attorneys file in fed-
eral court at the same time?
   By the time they got around to filing in federal court, it
was March 26, two days before the scheduled execution
date. And by the time they filed in this Court, the sched-
uled execution time and the time when the death warrant
would expire were only hours away. If the tactics of Mur-
phy’s attorneys in this case are not inexcusably dilatory, it
is hard to know what the concept means.
   This Court receives an application to stay virtually
every execution; these applications are almost all filed on
or shortly before the scheduled execution date; and in the
great majority of cases, no good reason for the late filing is
apparent. By countenancing the dilatory litigation in this
case, the Court, I fear, will encourage this damaging prac-
tice.3
——————
   3 In my judgment, the tactics in this case are just as unjustified as

those that led the Court to vacate a stay of execution a few weeks ago in
Dunn v. Ray, 586 U. S. ___ (2019). In that case, Ray, a Muslim, object-
ed to Alabama’s refusal to allow an imam to be present in the execution
room. Ray filed suit in Federal District Court 10 days before his
execution date. The District Court refused to issue a stay of execution,
holding, among other things, that the application was untimely, Ray v.
Dunn, 2019 WL 418105, *1 (MD Ala., Feb. 1, 2019), but on February 6,
the Eleventh Circuit granted a stay on the ground that Alabama’s
policy of allowing only its official chaplain, a Christian minister, to
enter the execution room likely violated the Establishment Clause. Ray
v. Commissioner, Ala. Dept. of Corrections, 915 F. 3d 689, 695–701, 703
(2019). The State asked us to vacate this stay, and we did so based on
Ray’s delay in raising his religious liberty claims. See Ray, 586 U. S.,
at ___. In both Ray and this case, the Court was presented at the last
minute with claims that raised complicated issues that cannot be
                    Cite as: 587 U. S. ____ (2019)                 9

                         ALITO, J., dissenting

                              III
   While I strongly disagree with the decision to grant a
stay in this case, I recognize that Murphy, like Ray, raises
serious questions under both the First Amendment and
RLUIPA. Murphy argues, among other things, that Tex-
as’s policy of admitting only authorized chaplains illegally
discriminates on the basis of religion. That is the argu-
ment embraced by both the concurrence in this case and
the dissent in Ray. Both of those opinions seem to see this
religious discrimination claim as one that is easily re-
solved under our Establishment Clause precedents, but
that is simply not so.
   Both opinions invoke precedents involving the constitu-
tional rights of persons who are not incarcerated, see Ray,
586 U. S., at ___ (slip op., at 2); ante, at 1, and there is no
question that, if Murphy were not in prison, Texas could
not tell him that the only cleric he could have at his side in
the moments before death is one who is approved by the
State. But this Court’s precedents hold that imprison-
ment necessarily imposes limitations on a prisoner’s con-
stitutional rights. See Turner v. Safley, 482 U. S. 78, 90
(1987); O’Lone v. Estate of Shabazz, 482 U. S. 342, 348–
350 (1987). Under those cases, it is not enough for a pris-
oner to assert a claim that would succeed in the outside
world. Instead, we must consider the following four fac-
tors: (1) whether a prison rule bears a “valid, rational
connection to a legitimate governmental interest”; (2)
“whether alternative means are open to inmates to exer-
cise the asserted right”; (3) “what impact an accommoda-
tion of the right would have on guards, inmates, and
prison resources”; and (4) “whether there are ready alter-
natives to the regulation.” Overton v. Bazzetta, 539 U. S.
126, 132 (2003) (quoting Turner, supra, at 89–91; internal
quotation marks omitted). Neither the Ray dissent nor
——————
adequately decided with hasty briefing and an inadequate record.
10                   MURPHY v. COLLIER

                      ALITO, J., dissenting

the concurrence in this case even mentions these prece-
dents. Indeed, the Ray dissent is based on strict scrutiny,
586 U. S., at ___ (slip op., at 2), even though Turner specif-
ically and emphatically rejected the use of that test in
prisoner cases, 482 U. S., at 89.
  On the flimsy record now before us, I would not presume
to apply the Turner factors to Murphy’s First Amendment
claims, but there can be no doubt that Turner presents a
serious obstacle. Here, Texas argues that it must be able
to regulate the members of the clergy who are allowed in
the execution room in order to ensure that these individu-
als do not intentionally or unintentionally engage in any
conduct that might interfere with an execution. Murphy
responds that Texas has failed to show that this is a real
concern in his case because Rev. Shih has visited him in
prison without incident and because Texas had sufficient
time to do whatever additional vetting and training it
thinks is needed. But on the present record, we cannot
tell whether this is true. Visiting a living prisoner is not
the same as watching from a short distance and chanting
while a lethal injection is administered. And Texas may
have an interest that goes beyond interference with Mur-
phy’s execution, namely, that allowing members of the
clergy and spiritual advisers other than official chaplains
to enter the execution room would set an unworkable
precedent.
  Specifically, Texas may be concerned that if it admits
any cleric other than an official chaplain, every prisoner
will insist on the presence of whichever outside cleric he
prefers. Although the Court’s order in this case permitted
Texas to proceed with Murphy’s execution if any Buddhist
priest was allowed in the execution room, such a limited
accommodation would not be acceptable in the outside
world. There, Texas surely could not successfully defend a
policy of admitting to the side of a dying patient only a
state-approved cleric. Texas could not force a dying Bap-
                     Cite as: 587 U. S. ____ (2019)                  11

                         ALITO, J., dissenting

tist to settle for a Catholic priest; it could not tell an Or-
thodox Jew that only a Reform rabbi would be allowed at
his side; it could not force a Shi’ite to accept a Sunni
imam; and so forth. I am aware of no single authoritative
tally of the number of religions and denominations that
exist in the United States, but the number is certainly
very large. And of course, even within a particular reli-
gion or denomination, all clerics are not fungible. Moreo-
ver, I assume that, in the world outside prison walls, a
State could not discriminate between clerics and any other
person whose presence a dying patient might want at his
side for spiritual or emotional support.
   In permitting Murphy’s execution to go forward provided
that some Buddhist priest was allowed in the execution
room, the Court may perhaps be understood to have con-
cluded that a prison need not afford a prisoner facing
execution the same array of choices that he would enjoy in
the outside world. But if that is the Court’s reasoning,
what it shows is that the prison setting justifies important
adjustments in the rules that apply outside prison walls.
Determining just how far those adjustments may go is a
sensitive question requiring an understanding of many
factual questions that cannot be adequately decided on the
thin record before us.4
——————
  4 I have discussed the constitutional claim set out in the concurrence

in this case and in the Ray dissent, namely, an Establishment Clause
claim based on discrimination among religions. But Murphy also
asserts Free Exercise Clause and RLUIPA claims, which, as he frames
them, do not depend on disparate treatment of different religions or
denominations. If States respond to the decision on Murphy’s stay
application by banning all clerics from the execution room, that may
obviate any conflict with the Establishment Clause, but a prisoner
might still press free exercise claims. A claim under the Free Exercise
Clause of the First Amendment would have to contend with both
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S.
872 (1990), and Turner. Under RLUIPA, such a claim would present
issues similar to those discussed below. See infra, at 12–13.
12                   MURPHY v. COLLIER

                      ALITO, J., dissenting

   So far, I have discussed the prospects of Murphy’s Es-
tablishment Clause claim, but even if that claim cannot
succeed, he might still prevail under RLUIPA, which was
enacted by Congress to provide greater protection for
religious liberty than do this Court’s First Amendment
precedents. To prevail under RLUIPA, Murphy would
have to show at the outset that excluding Rev. Shih would
impose a substantial burden on his exercise of religion.
See 42 U. S. C. §2000cc–1(a).
   We have not addressed whether, under RLUIPA or its
cousin, the Religious Freedom Restoration Act of 1993
(RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., which
contains an identical threshold requirement, §2000bb–
1(b), there is a difference between a State’s interference
with a religious practice that is compelled and a religious
practice that is merely preferred. In past cases, we have
assessed regulations that compel an activity that a practi-
tioner’s faith prohibits. See, e.g., Burwell v. Hobby Lobby
Stores, Inc., 573 U. S. 682, 725–726 (2014); Holt v. Hobbs,
574 U. S. 352 (2015). And, while some Members of this
Court have been reluctant to find that even a law compel-
ling individuals to engage in conduct condemned by their
faith imposes a substantial burden, see Hobby Lobby, 573
U. S., at 758–760 (GINSBURG, J., joined by BREYER,
SOTOMAYOR, and KAGAN, JJ., dissenting) (arguing that it
is not a substantial burden to require Christian-owned
businesses to facilitate the acquisition of abortifacients), a
majority of this Court has held that it is not for us to
determine the religious importance or rationality of the
affected belief or practice. See id., at 723–726. Similarly,
it may be that RLUIPA and RFRA do not allow a court to
undertake for itself the determination of which religious
practices are sufficiently mandatory or central to warrant
protection, as both protect “any exercise of religion, wheth-
er or not compelled by, or central to, a system of religious
belief.” §2000cc–5(7)(A) (emphasis added).
                 Cite as: 587 U. S. ____ (2019)           13

                     ALITO, J., dissenting

   But this does not answer what results when the State
offers a prisoner an alternative practice that, in terms of
religious significance, is indistinguishable from the prohib-
ited practice. Persons of many faiths may desire the sup-
port of a cleric in the moments before death, but not every
religion would draw a distinction between a meeting with
a clergyman shortly before death and one precisely at the
moment of death. Murphy’s situation, however, may be
different because he believes that he will be reborn in the
Pure Land only if he succeeds in remaining focused on
Buddha while dying and that the chants of a Buddhist
priest will help him in this endeavor. See Pet. for Prohibi-
tion in In re Murphy, No. 18–8615, pp. 12–17.
   I will assume for present purposes that a policy like
Texas’s imposes a substantial burden on any prisoner who
seeks the presence of a cleric other than one of the official
chaplains, but that does not necessarily mean that the
prisoner’s RLUIPA claim would prevail. The State claims
that its policy furthers its compelling interest in security
and that the policy is narrowly tailored to serve that in-
terest, see Brief in Opposition 20–23, 29, and in deciding
whether its policy can be sustained on that basis, we
would face unresolved factual questions that are similar to
those discussed above. The RLUIPA standard, §2000cc–
1(a)(2), to be sure, would be more favorable to the prison-
er, but the nature of the underlying issues would be simi-
lar.
                            IV
  The claims raised by Murphy and Ray are important
and may ultimately be held to have merit. But they are
not simple, and they require a careful consideration of the
legitimate interests of both prisoners and prisons. See
Holt v. Hobbs, supra. Prisoners should bring such claims
well before their scheduled executions so that the courts
can adjudicate them in the way that the claims require
14                  MURPHY v. COLLIER

                     ALITO, J., dissenting

and deserve and so that States are afforded sufficient time
to make any necessary modifications to their execution
protocols.
  In this case, however, Murphy egregiously delayed in
raising his claims. By countenancing such tactics, the
Court invites abuse.
  For these reasons, Murphy’s stay application, like Ray’s,
should have been denied.
