In a 5-4 split decision on February 7, 2019, the US. Supreme Court allowed a Muslim man to be executed in Alabama without an imam at his side.
The decision raises serious concerns about our country’s commitment to interfaith chaplaincy and the way the First Amendment is understood.
Dunn v. Ray was a case about Domineque Ray, who was executed by the state of Alabama later in the evening of February 7 for the murder of three teenagers in 1999. Dunn v. Ray was not about Ray’s trial and conviction, although his lawyers made many arguments over the years since his conviction. This case was about the application and interpretation of the First Amendment’s protection against “establishment of religion.”
Alabama had a chaplain who was permitted in the execution chamber. But that chaplain was Christian, and Ray requested an imam. The state said no, that it did not have an imam chaplain, that an imam could give counsel to Ray before the execution and could be present in the observation room, but because of the concern for prison safety he could not be present in the execution room itself.
While the Appeals Court for the Eleventh Circuit in Atlanta had ordered a stay of execution so the claim concerning the Establishment Clause could be heard, the Supreme Court vacated the stay and permitted the state to proceed with the execution.
The reason the Supreme Court permitted the execution to go forward without hearing the arguments about establishment of religion had to do with timing. On November 6, 2018, the prison scheduled Ray’s execution for February 7, 2019. On January 23, Ray requested of the warden that an imam be permitted at his side for the execution, a request that the warden rejected. On January 28, Ray’s attorneys filed the complaint that his First Amendment rights had been violated, and on February 6, the day before execution, the appeals court issued the stay to hear the arguments.
The Supreme Court’s decision did not address whether there was any merit to Ray’s claim. That is, there was no ruling on whether or not Alabama was correct to deny the request to have an imam by Ray’s side in the execution chamber. The decision was based on precedent that the court could deny a claim to stay an execution when the claim was of a “last-minute nature.” Ray should not have waited until January 28 to protest the warden’s decision to not have an imam at his side. The implication is that a last-minute claim indicates a final attempt to prevent an execution from going forward rather than a matter of substantive concern to the individual convict. The concern to prevent endless challenges to executions took precedence over hearing the merits of the claim.
In her dissent, Justice Elena Kagan, representing the four justices in the minority, argued that the argument over timing was not convincing because there was no way for Ray to know, between November 6 and January 23, that the warden would reject his request. Since the prison had a chaplain who could enter the chamber, and since that chaplain was Christian, why could Ray not request a Muslim chaplain, and how could he have known that only a Christian chaplain would be permitted in the execution chamber?
The real question, which the Supreme Court did not allow the Eleventh Circuit to hear, was whether the state has the right to permit only a Christian chaplain in the execution chamber. According to Alabama’s policy, as argued by Justice Kagan, “a Christian prisoner may have a minister of his own faith accompany him to the execution chamber to say his last rights. 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 is the crux of the Establishment Clause, that the state may not establish any one religion over another.
The interplay between religion and the state is complicated. While we often hear it said that the Constitution requires a separation between church and state, that separation does not have to be the “wall of separation” that Thomas Jefferson wanted to construct. Indeed, earlier presidents also tried to build walls. Jefferson’s, if it exists in the land of constitutional theory, is porous. The state does permit a legal role for the church.
Unlike in countries where there is a more complete rule of separation, I, as an ordained rabbi, am permitted to solemnize marriages, and those marriages have the force of law in New Jersey, and by extension, almost everywhere else. The concerns of the Establishment Clause are upheld because New Jersey does not restrict the power to solemnize marriages to, for example, Episcopal priests. In Dunn v. Ray, the issue, never fully entertained by the courts, was whether Alabama was correct in permitting full access to the execution chamber only to a Christian chaplain.
Alabama’s defense — that only the staff chaplain could be permitted in the execution chamber because of safety concerns — was rightly challenged by Justice Kagan. All the state had to do was to allow a Muslim chaplain onto the prison staff. The additional time for whatever training and certification was necessary is all that it would cost before the execution could be rescheduled. The argument for prison safety is not the issue. Just as any hospital needs rules on who is allowed in an operating room, certainly a prison should have the same type of regulations. The problem is that Christian prisoners are offered a religious service that non-Christian prisoners are not.
Chaplaincy is a challenging and rewarding interfaith project. Prison chaplains, hospital chaplains, military and police chaplains, and university chaplains all are asked to serve a broad range of people, crossing denominational and faith boundaries. Alabama’s prison chaplaincy program would not have satisfied every Christian denominational need. But the chaplaincy ideal is committed to offer reasonable clergy services to those to whom the chaplain’s care is entrusted. Interfaith chaplaincy seeks a delicate balance between asking chaplains to serve a broader population than they might in a denominational setting, while at the same time seeking to provide the right chaplains for those who need them. A private hospital may have the resources only for a single staff chaplain. Hospitals often will call on local clergy to help their chaplains with specific patients. A prison, as a state institution, has an additional burden to avoid establishing one religion over another.
Every year in rabbinical school we would hear a military chaplaincy recruiter explain how in the United States rabbis and other clergy become officers, emphasizing how committed the military is to interfaith chaplaincy. I have great respect for those of my colleagues who put on the uniform. And I am grateful that my country recognizes the importance of religion while preserving religious diversity and freedom.
We live in a time for growing political polarities. Issues like these should remind us that the complexities of a balanced centrist approach are in need of committed engagement and passionate defense. Finding the balance between respect for religion and defense of diversity and freedom is a difficult project.
I was sad that it was not as important to our Supreme Court as the timely execution of Domineque Ray.