Religious Liberty For Christians Only?

A death penalty case from Alabama raises First Amendment issues that the Supreme Court chose to brush aside.

As James Joyner noted earlier today, yesterday the state of Alabama executed Domineque Ray for a murder in a case that was questionable to say the very least, including the question of whether or not he had received adequate assistance of counsel at trial and during sentencing. The execution, though, came after a last-minute ruling from the U.S. Supreme Court refused to stay the execution due to the fact that the state, which allows a Christian Minister to be present in the death chamber when an inmate is executed, refused to allow Ray, a Muslim, have an Imam at his side when he was put to death:

WASHINGTON — The Supreme Court on Thursday allowed the execution of a Muslim inmate in Alabama whose request that his imam be present had been denied.

The vote was 5 to 4, with the four more liberal members of the court in dissent.

The majority offered little reasoning but said that the inmate, Domineque Ray, had waited too long to object. Justice Elena Kagan, writing for the dissenters, said the majority was “profoundly wrong.”

Under Alabama’s policy, she wrote, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites.”

“But if an inmate practices a different religion — whether Islam, Judaism or any other — he may not die with a minister of his own faith by his side,” Justice Kagan wrote.

“That treatment goes against the Establishment Clause’s core principle of denominational neutrality,” she added, referring to the clause of the First Amendment that bars the government from favoring one religious denomination over another.

A federal appeals court had issued a stay of execution on Wednesday, saying that excluding the imam while routinely allowing a Christian chaplain to be present raised serious questions about religious discrimination.

Mr. Ray was originally scheduled to be executed at 6 p.m. Thursday for the 1995 rape, robbery and murder of Tiffany Harville, 15, in a cotton field outside Selma. His lawyer, Spencer Hahn, said at 10:20 p.m. that Mr. Ray had been killed.

As his execution date neared, Mr. Ray told prison officials that he sought, as the appeals court put it, “spiritual guidance and comfort from a cleric of his own faith.”

The officials said Mr. Ray’s imam could visit him shortly before the execution and observe it from a viewing room. But they would not allow the imam into the execution chamber.

The chaplain was allowed to be present, the officials went on, because he was an employee of the prison system who was “a member of the execution team” and was “familiar with the technicalities of the execution protocol,” having attended almost every execution in the state since 1997. The chaplain kneels and prays with inmates who seek pastoral care, the officials said. After considering Mr. Ray’s request, prison officials agreed to exclude the chaplain. But they said allowing the imam to be present raised unacceptable safety concerns.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, stayed the execution, saying Mr. Ray had presented “a powerful Establishment Clause claim.”

“We are exceedingly loath to substitute our judgment on prison procedures for the determination of those officials charged with the formidable task of running a prison, let alone administering the death penalty in a controlled and secured manner,” Judge Stanley Marcuswrote. “Nevertheless, in the face of this limited record, it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.”

Ostensibly, the Court denied Ray’s request for a stay in no small part because of the fact that it came at the last minute in a case that has been pending since the crime was committed in 1995. To be sure, the Federal Courts are full of examples of prisoners and their attorneys who use dilatory motions that have little basis in fact and law to delay the inevitable, or raising issues that arguably should have been raised years before or which at least in theory had been dealt with in previous proceedings in the case. In death penalty cases, these types of motions inevitably make their way to the Supreme Court, typically at the last minute just prior to a scheduled execution, a scenario that gives Justices precious little time to consider what can quite literally be considered issues of life and death. As a result, the Supreme Court has made it increasingly clear in recent years that it intended to place limits on these practices and that its patience for these last-minute motions was growing thin.

While there may be some merit in this position, it seems obvious that treating all of these last-minute motions in this matter risks missing out on addressing what is a clearly serious issue. In this case, that issue involves not just the death penalty but the First Amendment rights of someone who, in this case, was simply asking that they be allowed to have at their side a faith leader from their faith rather than a Christian minister who just happens to be a prison employee. Rather than consider that issue carefully, though, the Justices chose to view Ray’s case as another example of the aforementioned dilatory motion that I wrote above despite the fact that it raises serious Constitutional issues that clearly deserved a more thorough hearing than the Justices gave to it.

Justice Elana Kagan put it this way in her dissent, which was joined by the Court’s liberals:

“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality. See, e.g., Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“[Government] may not . . . aid, foster, or promote one religion or religious theory against another”); Zorach v. Clauson, 343 U. S. 306, 314 (1952) (“The government must be neutral when it comes to competition between sects”).

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

(…)

Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date. I respectfully dissent.

As the Editors at the The New York Times put it, it’s enough to make one wonder if religious freedom, in the eyes of this Supreme Court, is for Christians only. The argument that the minister was allowed in the death chamber because he is a prison employee seems like a fairly flimsy one to say the least. If security is a concern, then the prison where the execution is being conducted can surely provide whatever additional security they feel is necessary under the circumstances. Alternatively, the state could provide appropriate training for ministers of other faiths who would be willing to serve the role under appropriate circumstances. Denying someone who is going to die the counseling of a minister of their faith during their last moments of life seems particularly unjust.

FILED UNDER: First Amendment, Islam, Law and the Courts, Religion, Supreme Court, U.S. Constitution
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl and his brother Darryl says:

    it’s enough to make one wonder if religious freedom, in the eyes of this Supreme Court, is for Christians only

    Of course…for so-called christians religious freedom means being able to impose your religion on everyone else.
    Placing Justice Boof on the court will only ensconce so-called christianity as the official religion of our country for decades. Maybe generations.

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  2. Mike Schilling says:

    wonder if religious freedom, in the eyes of this Supreme Court, is for Christians only.

    I don’t wonder at all.

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  3. Kathy says:

    It’s rather obvious that when the right says “religious liberty,” they’re saying it as a code for “Christian supremacy.”

    It’s invoked when they want to deprive people of their rights, as in their fights against abortion or same sex marriage, or when they want to impose Christian beliefs over others, as in the seemingly endless stream of monuments to the ten commandments.

    One tactic working against this, though not on a huge scale, consists in making something deeply offensive to the fundamentalists Christian extremists into a religious symbol, then demanding that it be treated the same way Christianity is. That’s the rationale behind the Satanic Temple(*).

    It’s funny, too. the principles espoused by Satanists are rational, moral, and tolerant. But mention “Satan,” and the Fundies get all worked up. What’s hilarious is that no Satanists of this kind even believe in Satan. It’s just a symbol to drive the opposition crazy, and it works.

    (*) I like to kid people about it telling them “Don’t worry, it’s just a name. It’s not really a temple.”

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  4. Stormy Dragon says:

    it’s enough to make one wonder if religious freedom, in the eyes of this Supreme Court, is for Christians only

    There’s a lot of Republicans who will explicitly argue this as the “proper” originalist interpretation of the first amendment.

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  5. Stormy Dragon says:

    One also need only look at how they flip-flop refusal of service as being about “freedom of association” or “free exercise” depending on whether the Christian is the one doing the refusing or the one being refused:

    Should students feel "unsafe" playing sports at a Christian school? No, and if adults are feeding that feeling they're acting more like bigots than educators: https://t.co/DyvbI3jWTH— David French (@DavidAFrench) January 31, 2019

  6. OzarkHillbilly says:

    Of course the 1st Amendment is only for Christians Doug, this is a “Christian Nation” after all. Just ask any of the families seeking asylum at our southern border

  7. OzarkHillbilly says:

    Denying someone who is going to die the counseling of a minister of their faith during their last moments of life seems particularly cruel.

    FTFY Doug.

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  8. Gustopher says:

    Why do they even have a Christian minister on the payroll? Should the government be subsidizing religion?

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  9. Lynn says:

    “After considering Mr. Ray’s request, prison officials agreed to exclude the chaplain”

    How considerate of them.

  10. An Interested Party says:

    Hmm…for all the talk about how coastal elites are supposedly “un-American”, in this case, it is the inverse…these “Real Americans” from the “heartland” compound the barbaric practice of state-sanctioned murder with religious bigotry…what a lovely cocktail of intolerance and real un-American values…

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  11. Gustopher says:

    @An Interested Party: Um, I hate to tell you this, but bigotry *is* an American Value. It’s in the constitution.

    We have lots of lofty ideals that we strive for, but our actual values are kind of shit.

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  12. OzarkHillbilly says:

    @An Interested Party: Yeah, @Gustopher: beat me to it but

    the barbaric practice of state-sanctioned murder with religious bigotry

    is a long time American tradition wrapped in clerical cloth.

  13. An Interested Party says:

    Um, I hate to tell you this, but bigotry *is* an American Value. It’s in the constitution.

    I’m well aware of that, but as you noted, we should be striving for lofty ideals…a pity that almost 250 years later, we haven’t come as far as we should have…

    …is a long time American tradition wrapped in clerical cloth.

    Slavery was also a long time American tradition wrapped in clerical cloth…that was discarded so hopefully other odious traditions can also be discarded…

  14. EddieInCA says:

    I’ve been waiting to see what Rod Dreher has to say about this case, but it absolutely destroys most of his recent writings about how Liberals are going to crush religious liberty and how Trump and his court picks are the only ones standing in the way of this eventuality.

    This case, and the Supreme Court decision, lay bare that it’s not at all about “religious liberty”. It’s all about White Judeo-Christian liberty, not Muslims, not Jews, not Sikhs, not Buddhists.

    In other words, it’s bullshit.

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  15. Moosebreath says:

    @EddieInCA:

    “I’ve been waiting to see what Rod Dreher has to say about this case, but it absolutely destroys most of his recent writings about how Liberals are going to crush religious liberty and how Trump and his court picks are the only ones standing in the way of this eventuality.”

    I would be shocked if Dreher ever mentioned it. He’s very good at stirring up his troops complaining about trivial harms done to conservative Christians by non-Christians. On the other hand, he never says a word about harms done by conservative Christians to non-Christians and whenever someone brings them up, he argues that it should not matter, as these are deeply held conservative Christian beliefs.

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  16. Sleeping Dog says:

    @EddieInCA:
    For the Drehers of this world, there are two type of people, Christians (as they define them) and spawn of Satan. Proudly count myself in the second catagory.

  17. OzarkHillbilly says:

    @An Interested Party: My inner optomist says you are correct and some day we will discard it, but my outer pessimist argues that I won’t live to see it.

  18. MarkedMan says:

    Why am I not surprised that the Republicans on the court display Alabama levels of civilization?

  19. dennis says:

    Let’s just straighten out this whole issue once for all. That Donald Trump can utter the word ‘god’ with NO immediate divine consequence is proof positive that there is no god.

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  20. charon says:

    @OzarkHillbilly:

    We are born with brains designed (pretty much) for tribes or clans of hunter-gatherers. The natural predisposition of these brains is to see people as “us” and “them.”

    I think younger generations, and the trend, is to progressively be more civilized about this reality.

    (I’m old enough to remember colored drinking fountains and colored motels, and the way LGBT were treated back in the day. Not that anyone knew transgendered people even existed back then.)

  21. Teve says:

    Guy on Twitter responding to this story

    DanNakatoi
    DanNakatoi
    @DNakatoi
    Replying to
    @DerwinLGray
    and
    @BenHowe
    We are Christian nation. Not a Muslim one. Not a Jewish one. Not a Hindu one. Not an atheist one. A Christian nation and Christians should always be given top priority because of that. If you want religious freedom, follow the right path to God. #SorryNotSorry

    https://mobile.twitter.com/DNakatoi/status/1094590492254310401

  22. OzarkHillbilly says:

    @charon:

    (I’m old enough to remember colored drinking fountains and colored motels, and the way LGBT were treated back in the day. Not that anyone knew transgendered people even existed back then.)

    Same here (tho I have no personal memories of colored motels)( i no doubt saw them but did not recognize them as such).

    We have come a long ways. My mother’s favorite cousin was a Lesbian living with her life partner in Dallas. I have very fond early 60’s memories of going to see BJ and M, we went to see them every time we were in Dallas to visit my grandparents. I am quite sure my Dallas born and bred Southern Baptist grandmother did not approve of our being exposed to this “alternate life style” but my mother was not about to accede to this prejudice. Even still, their living arrangements were never discussed.

    Years later I had a lesbian roommate whom my sons dearly loved. It was as natural to them as night following day, not remarkable in any way shape or form. One day at my parents house my 7 year old mentioned that my roommate was gay. My little Sis said, “Don’t say that, it’s not nice!” Both the boys looked at her and said with great factual innocence, “But it’s true!” My mother didn’t say a word but I did receive a raised eyebrow. (this was early ’90s)

    To this day I’m not sure if my little sis (she is a bit ditzy) has figured out that BJ was a lesbian.

  23. OzarkHillbilly says:

    @Teve:

    In a Religious freedom post here some years back, I said that there is no freedom of religion without freedom from religion. As I recall it was Eric Florack who replied that I was full of shit.

  24. dennis says:

    @OzarkHillbilly:

    As I recall it was Eric Florack who replied that I was full of shit.

    Of course, it was.

  25. MarkedMan says:

    This discussion reminds me of something I realized at a relatively early age. People who seek justice for all frequently take up the cause of people who seek justice for themselves, but it is always worth remembering that however noble the two groups are, they don’t really have the same motivations.

  26. Liberal Capitalist says:

    Not to detract, but being an atheist in the USA is not easy either.

    To discuss it often is socially limiting, as it is an affront to folks that believe in a deity. More time is held in silence, and to allow those with beliefs to espouse their creed, with their beliefs based in less than nothing.

  27. Michael Reynolds says:

    @Liberal Capitalist:
    When Congress was debating the Civil Rights Act the House passed an exception for atheists that would have made discrimination against atheists legal. The Senate wisely removed it.

  28. Sleeping Dog says:

    @Liberal Capitalist:

    You’re right, but it matters where you live. Up here in Cow Hampshire, the citizenry is reputed to be the least churched population in the country. At least this is what my church lady wife tells me. Can’t think of any of my friends who are church goers, except the aforementioned spouse. No social blowback from a snarky bible thumper put down.

  29. OzarkHillbilly says:

    @Liberal Capitalist: Heh, as a Bible Belt atheist I can attest to the truth of this. My step daughter married into a very religious Lutheran family. Every year at T-day dinner, her FIL is asked to say grace. There is a part of me that wants to get upset at my being denied the chance to give the greatest benediction ever said over a meal, but I really just don’t care.

    eta: there is an advantage to being an atheist in the bible belt tho. Once I tell them what I am, they leave me alone.

  30. dennis says:

    @Liberal Capitalist:

    Usually, two questions get them to leave me alone:

    Why do you believe that?
    How do you know that?

    There’s nothing they can say that doesn’t end with them falling on faith. And since they know it’s intellectually dishonest to deny faith is an unreliable method for decision-making, I easily get off the witness hook.

    Of course, it’s not like I’m debating William Lane Craig, or anything. (Btw, where IS WLC?)

  31. Just nutha ignint cracker says:

    @dennis: Ask and you shall receive.
    Generalist: wikipedia
    Inside:website
    Skeptics (?):rational wiki

    Take your pick.

    ETA: Additional background one might want/need: https://en.wikipedia.org/wiki/Kalam_cosmological_argument

  32. Just nutha ignint cracker says:

    @Just nutha ignint cracker: One more point, and then, I’ll go away again. Craig’s argument seems to be based on the following syllogism: Whatever begins to exist has a cause;
    The universe began to exist;
    Therefore:
    The universe has a cause.

    Debating with him may not be as difficult as one might imagine (although the academic community would consider it an effrontery for a mere mortal to debate with a known academic superstar), but it would be pointless. It seems to me that both the major and minor premises of the syllogism, but particularly the major, are declarations of faith that can only be believed but not empirically proven. The syllogism is moot.

    Not that he (or any of you for that matter) will agree, of course. But I will note that one of the enthymemes of the Big Bang theory seems (to me anyway) to be that matter exists without having to have been created.

  33. The abyss that is the soul of cracker says:

    @Just nutha ignint cracker: Forgive me everyone, but I just can’t resist. From RationalWiki

    The way in which I know Christianity is true is first and foremost on the basis of the witness of the Holy Spirit in my heart. And this gives me a self-authenticating means of knowing Christianity is true wholly apart from the evidence. And therefore, even if in some historically contingent circumstances the evidence that I have available to me should turn against Christianity, I do not think that this controverts the witness of the Holy Spirit.
    — Dr. William Lane Craig, “professional philosopher”[1]

    cf. (from the same source)

    Craig claims that religious faith must be spread through appeals to reason and logic or atheism will triumph.[3]

    Everybody sing with me–One of these things is not like the other…

  34. dennis says:

    @Just nutha ignint cracker:

    Yup, I remember Craig’s circular argument. Not worth debating. Thanks for the links.

  35. Mister Bluster says:

    …good food, good meat, good god let’s eat…
    anon

    …rub a dub dub, thanks for the grub.
    Yeah god!
    Bart Simpson

  36. Stormy Dragon says:

    @Just nutha ignint cracker:

    Whatever begins to exist has a cause;
    The universe began to exist;
    Therefore:
    The universe has a cause.

    The problem with this syllogism in terms of modern physics is the “the universe began to exist”. Time is itself part of the universe, so the universe can’t really said to have “begun to exist”. Pondering what happened before the universe is like pondering what is north of the north pole. The concept is inherently nonsensical.