Religious Freedom on Death Row?Sonja DeWitt July/August 2019
Just a few weeks ago, it appeared to many knowledgeable observers that Americans’ religious rights had received a death sentence. And ironically, it came in a case involving a literal death sentence.
Domineque Ray, a Muslim man in Alabama facing execution, requested an imam to be by his side in the execution chamber, but the prison’s regulations only allowed the Christian chaplain to be present in the chamber.1 The prison claimed that allowing an imam in the chamber would somehow present a security risk. Exactly how this would present a risk was not specified. There was some discussion about the training in execution protocols the Christian chaplain had received, but there was no reason given that the inmate’s imam could not have been given the same training.2
Mr. Ray appealed to the 11th Circuit Court of Appeals for a stay of execution to give the court a chance to decide whether the Constitution required that he be given the same rights as Christian inmates—the chance to have clergy of his own religion to give him comfort in his final moments.3
The decision of the Circuit Court presented a comprehensive and compelling survey of the central constitutional issue in the case—the firmly-established principle of religious neutrality, which the Supreme Court has consistently upheld for over 60 years. This principle provides that government must not favor any religious group or belief above any other—that government cannot discriminate based on religious belief. Throughout American history, this principle has been the bedrock supporting America’s religious freedom and protecting minority religions from the “tyranny of the majority.”
The Circuit Court explained, “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.’ Larson v. Valente, 456 U.S. 228, 244 (1982). Since Everson v. Board of Education, the Supreme Court “has adhered to the principle, clearly manifested in the history and logic of the Establishment Clause, that no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Larson, 456 U.S. at 246 (quoting Everson, 330 U.S. at 15).4
“[T]his principle of denominational neutrality has been restated on many occasions. In Zorach v. Clauson, 343 U.S. 306 (1952), [the Supreme Court] said that ‘[t]he government must be neutral when it comes to competition between sects.’ Id. at 314. In Epperson v. Arkansas, 393 U.S. 97 (1968), [the Supreme Court] stated unambiguously: ‘The First Amendment mandates governmental neutrality between religion and religion. . . . The State may not adopt programs or practices . . . which ‘aid or oppose’ any religion. . . . This prohibition is absolute.’ Id. at 104, 106, citing Abington School District v. Schempp, 374 U.S. 203, 225 (1963).”5
The Circuit Court also explained the high legal standard which applies in this case. “It is also by now a principle clearly embedded in our law that ‘when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions.’ Hernandez v. Comm’r, 490 U.S. 680, 695 (1989). `[W]hen we are presented with a state law granting a denominational preference, we treat the law as suspect and . . . apply strict scrutiny in adjudging its constitutionality. ` Larson, 456 U.S. at 246. Thus, the rule, policy, or practice ‘must be invalidated unless it is justified by a compelling governmental interest . . . and unless it is closely fitted to further that interest.’ Id. at 247.”6 Strict scrutiny is the highest possible standard of Constitutional review.
The Circuit Court found, in applying the standard, that the State had presented no evidence that its policy was “narrowly tailored” or that it was the “least restrictive means” of furthering the government interest in prison security, as required in a strict scrutiny analysis. In other words, the State failed to show any good reason why allowing the imam in the execution chamber would create a security risk. They just expected the court to take their word for it.7 Thus, the State failed to show that its policy met the Constitutional standard.
Regardless of this failure, in defiance of its own precedent and ignoring its own legal standard, the Supreme Court, by a strictly partisan vote of 5 to 4, vacated the stay and allowed the execution to proceed.8 And Mr. Ray died without the imam by his side.
The majority decision was ostensibly based on a technicality—the Court stated Mr. Ray had delayed too long in filing his appeal, since his execution was originally scheduled for early November 2018. However, as Justice Kagan pointed out in the dissent, the record indicated that Mr. Ray had only been informed of the prison’s refusal of his request on January 23, 2019, and Mr. Ray filed his appeal on January 28, less than a week later.9
Moreover, Justice Kagan also noted “this Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed. See, e.g., Duggar v. Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J., dissenting). Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.”10 So not only did the Court decide the case based on a very questionable technicality, it set aside its own standard practice to do so.
To those who didn’t believe the Court’s highly suspicious timeliness rationale, (which was most everybody) it appeared like this decision could signal the imminent demise of religious neutrality. That perception was bolstered by the open contempt the Court has expressed in recent years for the separation of church and its obvious attempts to broaden religious rights for Christians and narrow them for everyone else.
The conservatives on the Court have been busily expanding the role of “religion” in public life, in both Establishment Clause and Free Exercise cases. They’ve championed prayer before town meetings,11 Ten Commandment displays,12 companies refusing to provide contraception,13 and government funding for religious institutions.14 By a strange coincidence, virtually all cases expanding religious rights have involved Christian religious practices. These cases blatantly disfavor people with no religious belief, but the conservative majority has made it clear that they don’t believe non-theists’ beliefs are entitled to equal protection.
The impression that this was an assault on religious neutrality was also buttressed by Justice Thomas’ unabashed statements that the Constitution does not require neutrality and allows favoring “monotheistic religions” over others. Over the past 15 years, Justice Thomas has joined Justice Scalia in dissenting opinions which explicitly rejected the neutrality doctrine. These dissents overtly proclaimed the belief that it is not a violation of the Constitution for government to favor “religion over irreligion” and “monotheistic religions” over others, at least for the purposes of invoking God by prayer on public occasions. They reasoned that the (monotheistic) public’s interest in having the government offer prayers to God trumps the rights of non-monotheists not to be “excluded.”15 So it looked like the handwriting was on the wall and true religious freedom could soon be a thing of the past.
Then a very strange thing happened. Only a few weeks later, on March 28, 2019, the Court decided another case, Murphy v Collier. The facts of this case were almost identical to those in Ray. Mr. Murphy requested to have his spiritual adviser in the execution chamber with him, but the prison only allowed the Jewish or Christian prison chaplains to be present in the chamber. The only real differences between the cases were that this case took place in Texas and Mr. Murphy was a Buddhist.16
In this case, in a shocking reversal, the Court granted the stay of execution. Even more striking, Justice Kavanaugh, who had been shaping up as a Thomas-style sworn enemy of separation, wrote a concurring opinion, strongly supporting neutrality and quoting the same cases Justice Kagan had quoted in her dissent in the Ray case.
What are we to make of this sudden, inexplicable flip-flop? Multiple theories have been advanced by various commentators. Some of them believe the rationale hinted at by the footnote in the case, which stated that Mr. Murphy’s appeal was timely, presumably unlike Mr. Ray’s.
But is that really true? Despite Kavanaugh’s modest footnote—the only hint of an explanation for the discrepancy between the two cases—a review of the facts shows the glaring fatal flaw in relying upon timeliness as a justification. If, as Kagan’s scathing dissent strongly suggests, the timeliness explanation was not credible in Ray, it was even less credible as a justification for the opposite result in Murphy.
The Fifth Circuit Court explained:
“As the district court rightfully recognized, the proper time for raising such claims has long since passed. Murphy’s execution date was set on November 29, 2018. By his counsel’s admission, he waited until February 28 to first request that the state allow Murphy’s preferred spiritual advisor to not just meet with him prior to entering the chamber and watch from the viewing room, but actually enter the execution chamber with him. He then waited until March 20—eight days before the scheduled execution—to raise his First Amendment and RLUIPA claims with the Texas Court of Criminal Appeals. Those claims were not raised before the federal district court until March 26— two days before the scheduled execution—and an appeal was not brought before this court until March 27—the day before the scheduled execution.”17
Moreover, the Circuit Court noted the that policy in question had been in effect since 2012, and that Mr. Murphy’s counsel, “an experienced death penalty litigator,” knew or should have known about it. And even if he was not aware of the precise provisions of the policy, the Circuit Court noted, Mr. Murphy’s counsel was informed by email from the prison’s General Counsel on March 5. Nevertheless, he waited until March 20 to file his first appeal, and until March 27 to file his appeal with the federal Circuit Court.18
In contrast, Mr. Ray waited less than a week after he was informed of the denial of his request to file his appeal. So, Mr. Murphy, who had much more advance notice that his request would be denied, filed the appeal much later. Indeed, almost as late as it was possible to file it. So whatever Kavanaugh wants us to believe, timeliness was clearly not a credible motive for the very different treatment of the two cases.
Ilya Somin, a Law Professor at George Mason University, succinctly summarized the most likely alternative motivations of the Court.
“The most cynical explanation is that Murphy is a Buddhist, not a Muslim like Ray was. On this view, the three conservative justices have nothing against Buddhists, but are prejudiced against Muslims. But this theory seems unlikely, given that the justices surely realize that this case is going to set a precedent for lower courts in cases involving Muslim defendants, as well. And, as I pointed out in my post on Ray, the justices in question have ruled in favor of a number of other religious-liberty claims filed by Muslims. The Court’s ruling in the Trump travel ban case is often cited as a counterexample. I am no fan of that awful decision. But the double standard there is one between discrimination in immigration policy and domestic discrimination, not between discrimination against Muslims and discrimination against other groups.
“A more likely reason, in my view, is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court’s reputations. Presented with a chance to “correct” their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.19
Professor Somin’s conclusion appears well-founded. The timing of the two cases is too close, and facts of the two cases too eerily similar for this to be a coincidence. There was extreme outrage regarding the decision in Ray from both the Left and the Right. While the Left was concerned about the assault on religious neutrality under the Establishment Clause issue, the Right was primarily concerned about the Court’s refusal of the inmate’s right to practice his religion under the Free Exercise Clause.20 It seems likely that the firestorm it ignited forced the Court to rethink their position in Ray and realize that they needed a do-over—that they had to make it clear that they were not intending to eviscerate neutrality—the linchpin of religious liberty rights.
Whatever the Court’s motivation, this case demonstrates that the majority of the Court is still upholding its long-standing precedent requiring religious neutrality—at least when it comes to “substantive” individual rights. This is good news.
There are several aspects of this case which deserve careful consideration. In addition to the mystery of why the Court reversed itself, there’s the intriguing development that Kavanaugh, who had been shaping up as a hard-line conservative along the lines of Justice Thomas, has here distinguished himself as an unlikely advocate for religious neutrality.
After quoting the same cases which Justice Kagan used in her dissent just a few weeks ago, his reasoning, “What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room,”21 is surprisingly un-Thomas-like. In fact, it sounds like a mainstream moderate.
Another intriguing aspect to of Kavanaugh’s concurrence is that it appears to suggest that he may not be in sympathy with Thomas’ doctrine of non-neutrality, under which the Constitution allows government to favor “monotheists” over others. It is interesting to note that in this case involving a Buddhist (a non-monotheist) Kavanaugh has unequivocally stated Mr. Murphy was entitled to equal rights.
Of course, Thomas’ doctrine of non-neutrality has thus far been expressed only in limited contexts involving ceremonial issues like public prayer and public monuments, and has not extended to substantive individual rights to religious practice. So, this decision may not really be an indication of anything other than Kavanaugh’s respect for long-established precedent.
Too much should not be made of Kavanaugh’s concurrence because this case involves clear, unambiguous and well-established constitutional interpretation. A responsible constitutional jurist really has to come out this way in this case. The only real question is why the majority didn’t acknowledge that when Ray was decided.
It’s also noteworthy and ominous that Justices Gorsuch and Thomas dissented from the decision to grant the stay of execution. What this means is not clear since they did not write opinions explaining their reasoning. It may merely reflect their blatant hostility, demonstrated in several recent cases, toward prisoners on death row.
But in Thomas’ case, at least, it could suggest that he may be willing to extend his non-neutrality doctrine beyond mere ceremonial acts of government into the area of substantive religious rights, like the right to clergy at one’s execution. This would be a very disturbing development.
Or Thomas could be applying his notorious theory that the Establishment Clause doesn’t apply to the states at all. Which would be just as disturbing, particularly if Gorsuch’s dissent means that he joins in Thomas’ rationale.
Americans of faith should give thanks that Dunn v. Ray has turned out not to be the herald of the Court’s immediate intent to gut the religious neutrality doctrine. However, it does nothing to reverse or even halt the zealous work of the Court over the past several decades in broadening religious rights for Christians at the expense of everyone else. And it does nothing to suggest any moderation in the Court’s open animosity toward separation of church and state.
The case suggests that Thomas has not suspended his fanatical campaign to destroy the Establishment Clause. In fact, it appears he may have taken the battle to new territory, and my even have picked up an ally in Justice Gorsuch, his “ideological twin.” So, this decision, while it is a great relief, may turn out to be just a temporary stay of execution for minority religious rights.
There’s a heart-breaking post-script to this case. Texas, instead of taking the obvious and humane step of allowing clergy of all faiths into the execution chamber, took the other option Kavanaugh’s decision gave them. They banned all clergy from the chamber.22 Thus, while all executed prisoners will be treated equally, they are all being denied the comfort of clergy in their last moments. This appears to be a clear infringement of the Free Exercise Clause, and it is likely that there will soon be another appeal in Texas.
1 Dunn v. Ray, 586 U. S. ____ (2019)
2 Ray v. Ala. Dep’t of Corrections, slip op. at 17, 18 (11th Cir. February 6, 2019)
3 Ray, supra at 1, 2.
4 Id., at 9,10.
6 Id., at 10, 11.
7 Id., at 11, 12.
8 Dunn, supra at ____.
9 Id. (Kagan, J. dissenting).
11 See e.g., Town of Greece v. Galloway, 572 U.S. ____ (2014)
12 See e.g., Van Orden v. Perry, 545 U.S. 677 (2005)
13 Burwell v. Hobby Lobby, 573 U.S. ___ (2014)
14 See e.g.,Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___(2017)
15 See e.g. McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005) (Scalia, J., dissenting
16 Murphy v. Collier, 587 U.S. ______(2019)
17 Murphy v. Collier, No. 19-70007, at pg. 3 (5th Cir. Mar. 27, 2019)
18 Id., at 3, 4
20 https://www.washingtonpost.com/politics/courts_law/brett-kavanaugh-pivots-as-supreme-court-allows-one-execution-stops-another/2019/03/29/26b28b32-5245-11e9-88a1-ed346f0ec94f_story.html?utm_term=.3afc93a2469d; https://twitter.com/LukeWGoodrich/status/1093954541983170560
21 Murphy v. Collier, 587 U. S. ____ (2019)
Illustration by Robert Hunt
Article Author: Sonja DeWitt
Sonja DeWitt is a lawyer with over twenty years of experience handling cases of discrimination, including religious discrimination cases. She has been involved in political advocacy regarding religious liberty issues for several years, including meeting with the staffs of members of Congress, organizing an interfaith lobbying effort, and writing legal briefs. She received the A.T. Jones Award from the North American Religious Liberty Association for her work with religious liberty, and has been published in Liberty Magazine. She currently handles cases for federal agencies and blogs about faith, politics and social justice at voicesfromthewilderness.net.