The final appeal of Domineque Ray, convicted murder, was rejected by SCOTUS a couple of weeks ago, and he was put to death. He did not dispute the conviction nor the penalty, however, but who might be present. The State of Alabama’s rules of execution permitted only a cleric employed by the State on the “execution team” to be present in the room at the time of execution, and the only such cleric was Christian. Ray desired an imam of his Muslim faith to be present, but was denied by SCOTUS in a 5-4 decision.
Justice Kagan, joined by the balance of the liberal wing of the Court, dissented, arguing that this is a clear violation of the Establishment Clause, and the majority’s brief, unsigned argument that the appeal was filed too late is, well, bullshit. Read it in full here (starts near bottom of first page). David French of the conservative National Review concurred in the dissent as well.
Ian Millhiser at liberal ThinkProgress:
… it’s still hard to read Ray as anything other than a failure of empathy. The Roberts Court tossed out longstanding doctrine to rule in favor of Christian conservatives who object to many forms of birth control in Burwell v. Hobby Lobby. And it seems destined to hold that conservative Christians may defy many anti-discrimination laws. It’s hard to imagine that they would have ruled the same way in Ray if the facts of the case were reversed.
If a Christian inmate were told that he could only have a spiritual adviser of a different faith present during his execution, the court’s Christians would have almost certainly been livid.
Nor is Ray an isolated case. To the contrary, the court’s “religious liberty” cases stand as a monument to its conservative members’ lack of empathy. When religious liberty was primarily invoked by minority religions seeking equal footing an a majority Christian society, the court’s conservatives often looked upon these claims with great skepticism. Yet, when religious liberty claims are brought by the Christian right, the court’s right flank views those claims as transcendent.
I’m not sure I’d call it empathy. It’s hard for anyone to step out of their cultural shoes and truly be dispassionate, and perhaps the conservative justices just couldn’t do it, unless you take the argument that the appeal was too late seriously – which their colleagues did not.
Will Baude at conservative The Volokh Conspiracy is also uncertain as to whether or not the suggestion that the appeal was filed too late was true or a fallacious pretext:
But there is another peculiarity. The district court, who is usually the court in charge of making factual determinations, had concluded that the claim was indeed brought too late, that:
Since Ray has been confined at Holman for more than nineteen years, he reasonably should have learned that the State allows only members of the execution team, which previously has included a state-employed chaplain, inside the execution chamber. Indeed, it was the state-employed chaplain who facilitated Ray’s involvement with an imam for spiritual advice regarding his impending execution.
The Eleventh Circuit second-guessed this determination, concluding that the state had “offer[ed] only the barest assertions about common knowledge in the prison.” But still, it was the district court who held a hearing and who usually makes credibility judgments and factual determinations.
So it seems to me that the execution really hangs on a set of factual judgments and procedural rules — should Mr. Ray have known (or did he know) about the prison’s policies earlier, and what is the Supreme Court supposed to do when the district court and a court of appeals disagree on a factual question like that in a case of thin evidence? I am not sure what the legal answer is, and that makes it an easy case in which to indulge one’s own priors about who are the bad actors here. And that is troubling whoever is right.
(Finally, speaking as a departmentalist, not every responsibility should end with the federal courts. Even if the Supreme Court forbids intervention, I think the state ought to try harder to accommodate the religious needs of the condemned.)
His last observation strikes me as a little blindered. If the state is descending into theocracy, wouldn’t this “rule” that only members of an execution team can be present, and then only employed a Christian cleric, be congruent with the hypothesis at hand?
Let’s simply contemplate a Christian cleric as part of an execution team. We can more or less assume that Jesus would spit on such a cleric, no matter how much he averred that he was there to comfort the condemned, and I say that as an agnostic. This only works in a nascent theocracy which is using the moral authority of the predominant religion in its bid for legitimacy.
Ed Whelan at the conservative National Review notes how this could affect officially out-of-favor Christian sects:
It is very lamentable that the prison did not alter this policy when Ray objected to its obvious religious favoritism. (The policy disfavors not only Muslims and other non-Christians but also, given the internal conflicts within Christianity, many Christians. I wonder how a Catholic inmate’s request that the chaplain pray a Hail Mary with him would be received.) The simplest way to abolish the favoritism would have been to bar the chaplain from the execution chamber. Had the prison made that policy change, the execution of Ray could have proceeded exactly as it did, but not under an Establishment Clause cloud.
Which is the pendulum effect: who’s in power today? The English monarchy, in the years leading up to the American Revolution, exhibited this phenomenon to horrifying effect, as I discuss in my Pillars essay. Whelan also notes the imam viewed the execution from a room with a glass window, meaning Ray could see the imam. He tends to believe too much is read into the decision, especially as he believes SCOTUS has given Islamic appeals several victories of late – a statement of great irrelevancy in that we don’t know if those were open and shut cases, which do make it to the Court from time to time (as I interpret 9-0 decisions). To illustrate through contrariness, suppose a case in which the appellants appealed through the system to SCOTUS for a case which they claim should be resolved through the application of sharia law. When SCOTUS rules against the appellants, do we shake our heads at the injustice of it all and mark one against them? No, the case is prima facie ridiculous. Whelan’s assertion would require, as a disproving assertion, that some SCOTUS decisions result in breaches of the law while enforcing anti-Muslim discrimination. That is unnecessary. Let us ask this question: If a Catholic was told that only a Protestant cleric could attend his execution, and he appealed this rule 5 days after being so informed, would a hypothetical SCOTUS with Catholics in the majority reject the appeal? I find it difficult to take Whelan’s appeal to statistics seriously.
Matt Ford tries to inject another argument into the mix in The New Republic:
The near-unanimity of this criticism is remarkable by the Supreme Court’s recent standards. By letting Alabama execute Ray without equal access to the clergy of his faith, its conservative justices highlighted two disturbing trends in its recent decisions: the unequal treatment of Muslims who have faced religious discrimination, and an unyielding desire to preserve the death penalty. …
Perhaps the main reason the conservative justices rejected Ray’s claims was because they oppose to what Samuel Alito once called the “guerrilla war against the death penalty.” The justices have criticized the abolition movement in the past. In 2015, they upheld Oklahoma’s use of a sedative tied to two botched executions after complaining at oral arguments that the state only used it because an activist-led embargo had cut off other supplies. The majority opinion summarized itself with circular reasoning: “Because capital punishment is constitutional, there must be a constitutional means of carrying it out.”
The connection of this case to the abolition movement is tenuous at best, but illustrates how someone can see a broken down jalopy missing a wheel as a Formula-One racer. This is pure speculation, meaning Ford has a political agenda he’s trying to inject into what is properly a debate about the Establishment Clause.
For my part, it’s clear that, subject to security considerations, an imam should have been present, or all clerics should be banned. The law should be blind to the theology of the cleric, but not to any fell intentions. It doesn’t require a great long argument, to and fro, to be convincing. It’s simply disappointing that the conservatives cannot see this and hide behind an argument rejected by their colleagues.
