Death Sentence for Religious Freedom

February 14, 2019

Last week, it happened. 

 

The moment supporters of religious liberty have been awaiting with breathless horror for years, even decades. (See September 2018 blog) The moment the new conservative majority on the Supreme Court was finally free to flex its cramped muscles and shake off the restraints of democratic philosophy, equal protection, and the law.  The moment they signed the death warrant for freedom of religion in America.  And that warrant was signed by silence.

 

Ironically, the case involved a literal death warrant.  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 the presence of the imam 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 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). And Justice Goldberg cogently articulated the relationship between the Establishment Clause and the Free Exercise Clause when he said that ‘[t]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects . . . and that it work deterrence of no religious belief.’ Abington School District, 374 U.S. at 305;  Larson, 456 U.S. at 246.” [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 standard of Constitutional review there is.

 

However, in defiance of its own precedent and ignoring its own legal standard, the Supreme Court, by a vote of 5 to 4, split along strictly ideological lines, vacated the stay and allowed the execution to proceed.[7]  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 the dissent pointed out, 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.[8]  Thus, even absent any suspicion as to other covert motivations, the Court's rationale seems highly questionable.  But given the recent history of conservative jurisprudence on the Court, the covert motivation becomes as obvious as the motivation behind the prison's policy.

 

One commentator argued that this decision, although bad law, was not as bad as it appeared on its face because; a) with no stated rationale except a procedural technicality, it has no precedential value and thus does not create new law, and b) the author's review of prior cases by the same Justices indicated a lack of bias against Muslims.  His analysis was that the decision was not based on anti-Muslim bias, but on the Court's frustration with frivolous claims which delay scheduled executions. [9] 

 

I agree with him on one point.  I don't think this decision was motivated by anti-Muslim bias.  I think it was motivated by anti-anybody-but-Christians bias.  There is a difference.  After all, the policy did not allow for anybody but Christians to have the spiritual comfort of their own clergy in their last moments.  So the policy would apply to everyone else--Jews, Buddhists, Hindus, New Age Practitioners, Santeria….

 

But this commentator misses the central point of the decision. The central point is not what was said, but what was not said.  Not the precedent set, but the precedent set aside! Although it's indeed fortunate that this decision has no precedential value, that only gives us a temporary "stay of execution."  As the Circuit Court opinion forcefully reminds us, the law in this area is crystal clear, long-established and fundamental.  Thus, the Court had a Constitutional  responsibility to uphold its own precedent and issue a strong decision allowing the Circuit Court to give Mr. Ray a full hearing on his Establishment Clause claim.  To do otherwise was to openly condone a gross violation of one of its own most fundamental principles!

 

And yet...the majority said NOTHING!  And the silence of the majority in response to such a clear constitutional violation is a trumpet blast signaling open warfare on the rights of minority religions. 

 

It's not as if this move is a surprise.  Conservatives on the Court have been trying for decades to undermine the principle of neutrality as a part of their insidious covert campaign to enshrine Christianity in law as the one favored religion of our country. Most recently, Justice Thomas 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."[10]

 

So this decision is not a surprise, but it is a shock.  When they were in the minority, the opponents of neutrality were comparatively cautious in expressing their views.  They spoke in terms of favoring “theistic religions,” thus carefully including the vast majority of Americans of faith.  And the arguments they chose related to issues like prayer at official government events.  Issues with long-standing precedents in American history.  Issues so uncontroversial, that frankly, they would put most Americans to sleep.  One would expect the majority to take some time to test the waters and cautiously ratchet up the legal pressure on neutrality, before expressing extreme views or taking drastic action. 

 

It is also shocking that all five conservative Justices participated.  Prior to obtaining the majority, the only Justice to openly express hostility to neutrality was Justice Thomas.  The others had couched their skepticism in more conventional language.  Although they had made it clear that they shared a general distaste for the Establishment Clause, it was far from obvious that their views were extreme enough to join with Thomas in eviscerating neutrality. 

 

But now, less than six months after they obtained their majority, all the conservatives have abandoned all pretense of subtlety, and launched an all-out frontal attack on the religious rights of everyone who is not Christian!  And not only that--they have graduated from making their arguments in cases involving fringe issues very few care about--such as prayer before a municipal meeting--to a case literally involving life and death!

 

No more thinly-veiled references to “theistic religions.”  No more hiding out in abstruse Establishment Clause cases about prayer before a town meeting.  This case involves an open and unashamed preference for Christianity, to the detriment of both Muslim and Jewish inmates. (Not to mention those of all other faiths!)  And the Court allowed this facially-discriminatory policy to stand without a single word of protest!

 

Instead of making the strong statement in support of denominational neutrality which constitutional law requires, the Court allowed neutrality, like the Muslim prisoner, to die in silence.  And with the death sentence for neutrality handed down, the execution of religious freedom cannot be far behind.

 

[1]  Dunn v. Ray, 586 U. S. ____ (2019)

 

[2]  Dunn v.  Ala. Dep’t of Corrections, (11th Cir. February 6, 2019)

 

[3] Id.

 

[4] Id.

 

[5] Id.

 

[6] Id.

 

[7] Dunn v. Ray, 586 U. S. ____ (2019)

 

[8] Id.

 

[9] https://reason.com/volokh/2019/02/09/the-supreme-courts-recent-religious-libe

 

[10] See e.g. McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844,  (2005) (Scalia, J., dissenting); Van Orden v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring).

 

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