In my 30 years of writing about religious freedom, I can’t recall a case as outrageous as the one decided last week by the U.S. Supreme Court. A Muslim inmate on death row had asked to spend his last moments in the comforting presence of an imam. The Alabama prison offered only a Christian chaplain, and the justices, by a vote of 5 to 4, refused to order the state to do any more.
In its two-paragraph order, the majority quoted an earlier decision encouraging courts to take into account “the last-minute nature of an application” in deciding whether to put an execution on hold. Well, yes. The court should indeed consider whether a death-row inmate’s petition might be no more than a frivolous effort to postpone the inevitable.
This isn’t that. There can be, and is, a lot of debate about the right standards for judging a claim of religious freedom. But this should have been an easy decision.
Domineque Ray committed a horrible crime, raping and murdering a 15-year-old girl. If the death penalty is ever appropriate, this would seem to be a clear case. But the question before the court wasn’t whether Ray should be put to death. It was whether he should be denied the same right that a Christian inmate would have to be accompanied in the death chamber by a cleric of his own faith.
In recent decades, the justices have turned out to be most receptive to First Amendment claims that can be framed as examples of discrimination. Consider, for example, the court’s 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah. The suit was brought by a Santeria congregation whose practices included animal sacrifice. In response to the concerns of residents, local officials outlawed the killing of animals within the city limits. The trouble was that the ordinance included so many exceptions that it wound up prohibiting little besides the practices of the plaintiff.
The Supreme Court had no trouble striking down the law, saying it violated “the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.” The ordinance, the justices concluded, violated the constitutional rule “that laws burdening religious practice must be of general applicability.”
This is the problem with Alabama’s death chamber practices: a lack of general applicability. As Justice Elena Kagan notes in her dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, the discrimination in the state’s policies is obvious: “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.”
This favoring of one religion over another is permissible only in the very narrowest of circumstances, writes Kagan. Here, the state argued that the presence of a cleric other than the Christian chaplain, a prison employee who understood the execution process, would pose a security risk. That’s not a strong enough claim to get around the patent discrimination.
But even were there no discrimination at all, the denial of the presence of the imam would by itself present a strong case for judicial intervention in defense of religious liberty. Imagine a state rule that no clergy from any faith could enter the death chamber. I would argue that such a ban would itself be unconstitutional, for we are speaking here not of a prisoner’s access to the holy books of his faith – the denial of which the courts have struck down even in cases where prison authorities concluded that the books were not religious at all – but of spiritual comfort at the moment of death.
No one who is now alive, it almost goes without saying, can truly know what death is like. What will we find on the other side? Many insist there will be only oblivion. Others are confident that they will step into paradise. Still others fear eternal punishment. Whatever may lie beyond the threshold, however, we surely commit a great wrong when, having the chance to do otherwise, we force a person who knows he is about to die to face that great opaqueness alone.
To deny that person his chosen spiritual counselor at such a moment is the ultimate cruel triumph of our current wave of secularization. The authorities are in effect saying, “What difference does it make who’s with you at the end? You’ll be dead soon, and none of this will matter to you.” No matter how outrageous the crime, Alabama should not be taking sides in the greatest metaphysical question before us.
What can the court’s majority say in response? That the security of the death chamber is inviolate? That the petition was filed too late? Such propositions as these cannot be taken seriously when the state is about to impose the technology of death. No matter how heinous the crime – and Ray’s was despicable – a civilized culture must provide those last moments of comfort for the troubled soul.
The short of the matter is that the justices handed down a terrible decision, and, I suspect, miscalculated the reaction. There’s nothing to be done now, because Ray has been put to death. But the issue is bound to come up again. Next time, for all of our sakes, let us pray that the court will get it right.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.
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