The Corner

Law & the Courts

The Supreme Court Upholds a Grave Violation of the First Amendment

The Supreme Court building stands in Washington, D.C., November 13, 2018. (Al Drago/REUTERS)

I have no sympathy for Domineque Ray. The man was convicted of raping and murdering a 15-year-old girl, an act so heinous that the death penalty is appropriate and just. But Ray, no matter his crimes, still enjoyed the protections of the United States Constitution. Yet last night the state of Alabama and the Supreme Court failed to respect those protections at the most crucial of moments — they denied him access to an imam at the moment of his death. He could receive solace in the execution chamber from a Christian cleric, but his imam had to watch behind glass.

Any policy that by law or practice provided death-row inmates with access only to Christian chaplains would likely fail 9-0 if addressed on the merits. In this case, however, the Supreme Court didn’t decide the merits. It determined that Ray’s request for an imam was made too late. The state set his execution date on November 6, it denied Ray’s request for an imam on January 23, and Ray filed his application for judicial relief on January 28. On that basis alone, five justices of the Supreme Court determined that the execution should proceed.

The state prohibits outside spiritual advisers, and the imam was not an employee of the prison. And while security is always a valid concern in any prison environment, in her dissent Justice Kagan raised exactly the right questions:

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

Since the majority didn’t reach a decision on the merits, the case doesn’t negatively impact substantive constitutional law, but it represents a grave injustice nonetheless. The court could have easily issued an injunction permitting Ray access to his imam of his choice, provided that his spiritual adviser could follow the steps Justice Kagan outlined above. Her closing words are poignant and strong:

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. I respectfully dissent.

I dissent as well. Ray’s execution was just. The circumstances were not. The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.

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David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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