A tremendous missed opportunity
While it was given very little news attention, the story was disturbing nonetheless. In a 5–4 decision, the Supreme Court allowed an execution to move forward in Alabama, denying the inmate the presence of his pastor in the execution room.
So what, you ask?
The issue was this: the Alabama Department of Corrections (ADOC) allows Christian inmates to have Christian pastors to be present in the execution room. The inmate condemned to death in this case, Domineque Ray, was a Muslim. He was granted a stay of his execution by a Federal Appeals Court on the grounds of religious freedom, saying that the Establishment Clause should treat people of all religions equally. The Supreme Court did not agree with this, allowing the execution to go through, agreeing with Alabama that Ray was “too late.”
Writer — and good friend — Wajahat Ali had a great piece analyzing the disturbing implications about this in The Atlantic. He wrote:
Reading the majority’s decision, I kept asking myself, How would these five justices have responded if all the facts were the same but Ray were a Christian and the imam were a priest? Would they have decided to reverse the ruling of the United States Court of Appeals for the Eleventh Circuit in Atlanta that stayed the execution? That appellate court stated, “It looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.” That’s the clause that prohibits the government from establishing an official religion and unduly favoring one religion over another. The Eleventh Circuit highlighted that Alabama allows Christian clerics in the execution room for all Christian inmates but refuses “to provide the same benefit” to a devout Muslim such as Ray, and all other non-Christians.
The conservative majority wrote little in granting Alabama’s application to vacate the stay, but it was apparently convinced by the state’s argument that Ray had waited too long to seek relief.
It is clear that the Supreme Court’s majority wrongly decided this case. In her dissent, Justice Elena Kagan wrote:
“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.
She could not have been more correct.
That said, it seems the ADOC knew that it was treading on unconstitutional ground, and so it changed its policy: if Ray couldn’t have his imam, then no other inmate can have his spiritual adviser in the execution chamber…ever:
Alabama prison officials argued in court that the prison chaplain is allowed in the execution chamber because he is a Department of Corrections employee trained in execution protocol.
But after a Wednesday ruling that suggested the state’s practice had “run afoul” of the religious freedom clause of the First Amendment, Alabama altered its lethal injection protocol, according to court records.
Alabama will now prohibit all spiritual advisers, including Holman’s Christian prison chaplain, from the execution chamber, according to court filings.
“To accommodate Ray’s stated beliefs and the Establishment Clause, the ADOC has amended its protocol and will no longer allow the prison chaplain, or any other spiritual adviser, in the execution chamber.”
Well that’s just dumb.
One wrong policy should not beget another. The ADOC should have admitted it was wrong with its decision about Ray and his imam. Rather than change its policy to bar all spiritual advisers — Muslim, Christian, Jewish, Sikh, Hindu, Jain, or otherwise — the ADOC should have amended its policy to allow spiritual advisers of all faiths to be present in the execution room if an inmate requested such.
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.
Domineque Ray is dead. The State of Alabama executed him on February 7. There are many in the country — this writer included — that are still disturbed that the Supreme Court allowed the execution to go forward without the imam present, raising serious concerns about whether this Court believes religious freedom applies to all religious groups in America.
Nevertheless, this whole incident was an opportunity; an opportunity to right a wrong and ensure that all inmates in Alabama — regardless of their faith tradition — can have his spiritual adviser present as they breathe their last, even if by lethal injection in retribution for a heinous crime. This was an opportunity for the State of Alabama to lead the nation in the true protection of religious liberty. Sadly, the State of Alabama missed this opportunity.