If you need a rabbi, an imam or other non-Christian spiritual advisor to accompany you into the death chamber in Alabama, God help you. Because the U.S. Supreme Court won't.
On Thursday night, the justices granted a request by Alabama’s prisons chief, Jefferson S. Dunn, to allow the state to proceed with the execution of Domineque Hakim Marcelle Ray, for the 1995 murder of a 15-year-old girl in Selma. The 11th Circuit Court of Appeals had put the execution on hold not because there was any lingering question about Ray’s guilt, but because Alabama wouldn’t allow Ray, a Muslim, to have a cleric of his faith in the death chamber in place of the prison’s Christian chaplain.
The Supreme Court lifted the stay late Thursday by a 5-4 vote, and Alabama executed Ray shortly thereafter.
I understand why the state wasn’t inclined to do any favors for Ray, who’d also been convicted of killing two teenage boys. But the constitutional principle at stake here is large and obvious. And the justices bungled it.
This is a worrisome sign that the court’s new, more conservative majority is going to take a blinkered view of the 1st Amendment’s “Establishment Clause,” which holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There have been continual fights about what the clause means for public displays of religious faith by government officials or in government buildings, but there should be no confusion over the fundamental principle that the government must not foist a particular faith on the people. There can be no picking of winners by government in the competition for souls.
Which brings us back to Ray. Alabama stations a Christian chaplain in its death chamber — perhaps more for the benefit of prison guards and those who administer the lethal injection than for the prisoners being executed. Nevertheless, it’s a clear endorsement of one faith over another.
Ray asked, reasonably, that he be ushered off this mortal coil in the company of his imam. But according to an Alabama Corrections Department spokesman quoted by the news website Al.com, department protocol allows only “approved correctional officials, that includes the prison’s chaplain, to be inside the chamber where executions are lawfully carried out.” The spokesman added that “the inmate’s spiritual advisor may visit the inmate beforehand and witness the execution from a designated witness room that has a two-way window.”
“Under that policy,” Justice Elena Kagan wrote in a powerful dissent, “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. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”
The state argued that it has a compelling interest in preserving the security of its prisons, and it does have that. But as Kagan noted, there’s no reason it couldn’t give Ray’s imam — or a rabbi, or the equivalent in any other faith — the same screening and training that it gives the Christian clerics who volunteer to serve as prison chaplains.