Justice Elena Kagan described the decision as “profoundly wrong,” and it is hard to see otherwise. She made her point in dissenting to a 5-4 Supreme Court ruling on Thursday involving a scheduled execution in Alabama. The court majority permitted the execution to go forward, though the previous day a federal appeals court had granted a delay so that the unanimous three-judge panel could take up what it described as “a powerful Establishment Clause claim.”
The appeals court argued: “We can think of no principle more elemental to the Establishment Clause [of the First Amendment] than that states and the federal government shall not favor one religious denomination over another.”
Does Alabama show such favoritism in its execution procedures? It certainly seems so, or at least the question is worthy of examination. In this instance, a Muslim prisoner facing death by lethal injection requested the presence of his imam in the execution chamber. The state said no, citing policy that permits only a Christian chaplain to be present. Thus, as Kagan noted, “ … 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.”
The appeals court recognized the obvious: This matter deserved a full argument. It put the case on a fast track, a resolution coming in a month or so. That wasn’t good enough for the Supreme Court majority, which appeared convinced the prisoner’s challenge amounted to little more than a last-ditch effort to put off execution. The high court cited the gap between the scheduling of the execution in November and the prisoner seeking relief in late January.
Should the prisoner long have known about the restrictions? Actually, the law isn’t clear. Kagan cites language stating that an inmate’s spiritual adviser “may be present at an execution.” More, the record shows prison officials refused to provide the inmate, Domineque Ray, with a copy of the execution procedures.
The state contends that its leading concern is security. It stresses the Christian chaplain is a prison employee who has been trained in the relevant protocol, adding that he is “a member of the execution team.” Perhaps security is the overriding factor, or a more compelling interest than the religious liberty of the prisoner. Yet that weighing of priorities is just what the appeals court wanted to pursue.
As Kagan explained, the state has yet to show why the imam couldn’t receive training in the procedures or simply could pledge, “under penalty of contempt,” that he would not interfere.
This isn’t about whether Domineque Ray robbed, raped and killed a young woman. He did, and now he is dead. Rather, the issue goes to how Alabamans, and the rest of us, conduct the death penalty. In that way, the dismissive approach of the court majority is “profoundly wrong.” Ray sat on death row for more than two decades. The appeals court hardly granted a brief delay willy-nilly. Its concern involved first principles and was owed deference.
Ordinarily, this narrow majority of the high court embraces those arguing to protect religious liberty. Recall the room it permitted a baker who balked at preparing a cake due to his faith. A condemned prisoner requested the presence of his imam. The state responded: Sorry, it’s a Christian chaplain or none at all. And the Supreme Court agreed, seeing a ruse instead of the substantial and defining questions.