Written by Don Byrd
[UPDATE: In an extraordinary turn of event, the U.S. Supreme Court stepped in last night and vacated the stay issued by the 11th Circuit, over the impassioned dissent of Justice Elena Kagan, who noted that the court’s move “short-circuited” the appeals court’s normal process for hearing Mr. Ray’s religious liberty claim. “Given the gravity of the issue presented here,” she writes, “I think that decision profoundly wrong.” With judicial hurdles removed by the high court, the State of Alabama executed Mr. Ray.]
Previous post below:
A dramatic scene is unfolding in Alabama, a day before the scheduled execution of Domineque Ray. The 11th Circuit Court of Appeals granted Ray’s petition for an emergency stay, on the grounds that he is being denied access to an Imam as requested. The prison, it appears, provides a Christian chaplain in the execution chamber during an inmate’s lethal injection. Ray, who is Muslim, had asked that the Imam who has ministered to him since 2015 be present, but the warden denied his request.
This restriction, the appeals court ruled, amounts to an unconstitutional religious preference by the state. Here is an excerpt from the opinion, describing what it calls Ray’s “powerful Establishment Clause claim.” It is a little lengthy, but worth reading to the end; a powerful, impassioned description of the principles at the heart of our religious liberty protection under the law.
The claim presented by Domineque Ray touches at the heart of the Establishment Clause. Indeed, we can think of no principle more elemental to the Establishment Clause than that the states and the federal government shall not favor one religious denomination over another. In the words of the Supreme Court: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
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. 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.
What we can say with some confidence based on what little we have seen is that Holman prison will place its Christian Chaplain in the execution chamber; that it has done so nearly uniformly for many years; that the Christian Chaplain will offer to minister to the spiritual needs of the inmate who is about to face his Maker, and that the Chaplain may pray with and touch the inmate’s hand as a lethal cocktail of drugs is administered; and that only a Christian chaplain may go into the death chamber and minister to the spiritual needs of the inmate, whether the inmate is a Christian, a Muslim, a Jew, or belongs to some other sect or denomination. What is central to Establishment Clause jurisprudence is the fundamental principle that at a minimum neither the states nor the federal government may pass laws or adopt policies that aid one religion or prefer one religion over another. And that, it appears to us, is what the Alabama Department of Corrections has done here.
As Justice Douglas observed long ago, “[w]e are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary.” Thus it should come as no surprise that we may define ourselves in times of greatest need in reference to faith. Providing a cleric to an inmate at a spiritually critical moment by itself likely does not run afoul of the Establishment Clause.
However, we must at the same time “sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.
Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”
The state, for its part, argues that the Christian chaplain has received the training necessary to be in such an environment, but as the court noted, offers only the bare assertion, without support, that it could not easily pass along that training to the Imam requested by Mr. Ray. “Alabama,” the opinion says, “has presented us with nothing in support of its claims.”
If the state cannot protect the sincere appeal for religious liberty mercy of a condemned inmate, then whose can we protect? And if not as they face execution, then when?
According to the Associated Press, the state plans to appeal the decision.