Texas execution will go ahead without adherence to prayer precedent 

WASHINGTON (CN) — A man facing the death penalty in Texas failed Wednesday to have his execution suspended to enforce his religious rights. 

Stephen Barbee, 55, wants his spiritual adviser to hold his hand and pray audibly over him while his sentence is carried out. Even though the U.S. Supreme Court ruled just seven months ago in an unrelated case that the state's ban against religious touch and audible prayer in the execution chamber violated federal law, the Texas Department of Criminal Justice has yet to update its policy that allows a minister only to be present at executions.

Barbee's emergency application, submitted earlier this week to Justice Samuel Alito, was denied by the full court Wednesday afternoon without any noted dissents. The justices also declined his petition for certiorari. They did not provide an explanation for their ruling or note any dissents. 

Having not yet updated its policy, Texas has only approved a spiritual adviser to lay hands on Barbee’s lower extremities during his execution. Barbee had asked for the adviser to hold his hand but his request was denied. 

Barbee initiated his case under the Religious Land Use and Institutionalized Persons Act as the court heard arguments last term on the refusal by Texas to let a pastor lay hands on John Henry Ramirez during his execution.

While a federal judge did delay Barbee's execution in the lead-up to the high court's ruling on Ramirez, the Fifth Circuit ultimately threw out an injunction that was meant to give Texas time to create a policy complying with the court’s precedent.

In his petition to the high court, Barbee urged the court to make sure his client gets the prayerful execution that Ramirez was unconstitutionally denied.  “By vacating the preliminary injunction, the Fifth Circuit’s holding will perpetuate the sort of chaos that this Court sought to avoid with its opinion in Ramirez,” attorney Richard Ellis wrote for Barbee. 

Barbee was convicted of killing his ex-girlfriend and her 7-year-old son in 2005. He will be executed on Wednesday at 6 p.m. CST. 

The Supreme Court also declined to block the execution of Alabama prisoner Kenneth Eugene Smith on Wednesday. Smith was convicted in the murder-for-hire killing of a pastor’s wife in 1996.

While a capital jury wanted to sentence Smith to life in prison with no parole, the trial court overrode the determination and opted for the death sentence. Currently, no state allows trial judges to override capital jury sentencing determinations. Alabama abolished the practice in 2017 after Smith’s conviction. 

Smith asked the high court to halt his execution while examining if his Eight and 14th Amendment rights had been violated by condemning him to a sentence contrary to the jury’s determination. Justice Clarence Thomas referred Smith’s application to the full court, which declined to halt his case or take up his petition. There were no noted dissents on the order and the court did not provide an explanation for the ruling. 

With the court’s denial, Smith will be executed on Thursday. 

Follow @KelseyReichmann

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