The Supreme Court's Recent Religious Liberty/Death Penalty Decision is Bad—But Not Quite as Bad as Many Think

The justices were wrong to reject a religious discrimination claim in a case where a person sentenced to death was not allowed access to a Muslim cleric at the moment of death. But the decision was not the result of anti-Muslim bigotry.


Dunn v. Ray, yesterday's Supreme Court ruling on religious liberty has come in for a great deal of criticism. In a 5-4 decision divided along ideological lines, the conservative justices overturned a lower court's decision to grant a stay in an Alabama death penalty case in which a Muslim defendant scheduled to be executed was denied the right to have an imam present with him at the moment of death, even though the state does allow a Christian minister to be present. Left-of-center commentators have accused the majority justices of anti-Muslim double standards. The ruling has also gotten pushback from conservatives, such as David French of the National Review, who calls it "a grave injustice."

A grave injustice is exactly what it is. The decision should have gone the other way. But anti-Muslim bigotry probably was not cause of the Court's error.

Justice Elena Kagan's dissent on behalf of herself and the other three liberal justices explains why Domineque Ray deserved to prevail in the case:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life….

The clearest command of the Establishment Clause," this Court has held, "is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U. S. 228, 244 (1982). But the State's policy does just that. Under that policy, 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….

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.

Kagan is absolutely right about all of this. Indeed, the majority does not even try to take issue with it. They instead ruled against Ray because he raised his religious discrimination claim too late. Here is the sum total of the majority's reasoning:

On November 6, 2018, the State scheduled Domineque Ray's execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State's application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) ("A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.").

That's it. There is nothing more. Kagan has a compelling response:

I … see no reason to reject the Eleventh Circuit's finding that Ray brought his claim in a timely manner.The warden denied Ray's request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January 28. The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate's spiritual adviser of choice "may be present at an execution." Ala. Code §15–18–83(a) (2018). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.

For a more detailed description of the facts relevant to the timeline, see the Eleventh Circuit opinion, which I think is very good on this point. If the majority justices believe there is some flaw in Kagan's and the Eleventh Circuit's reasoning on the timing issue, they should have at least explained what that flaw is. As Justice Kagan notes, the Supreme Court usually defers to lower court decisions on such case-specific procedural matters.

Nonetheless, the fact that the case was decided on technical procedural grounds probably ensures that it won't set a precedent that undermines religious freedom. The majority did not address the substantive issue at all, and therefore created no precedent on that subject. The ruling probably won't establish much of a precedent even on the issue of timing, because the majority made so little effort to explain their reasoning, and thereby did not establish any clear rule that can be applied in future cases.

It is also unlikely that the majority justices were motivated by anti-Muslim bigotry. As Luke Goodrich of the Becket Fund for Religious Liberty points out in an insightful Twitter thread, the same conservative justices had ruled in favor of religious liberty and religious discrimination claims brought by Muslims in cases such as Holt v. Hobbs and EEOC v. Abercrombie and Fitch. One of Justice Samuel Alito's better-known rulings as a lower court judge was a decision in favor of Muslim police officers who sought a religious-liberty exemption from regulations barring them from wearing beards. Goodrich agrees that Dunn v. Ray is wrongly decided, and he and his organization have litigated a number of religious-liberty claims on behalf of Muslim clients. But he makes a strong case that the ruling was not motivated by hostility towards Muslims.

What, then, explains the Court's decision? The majority's short and cryptic opinion makes it very difficult to know for sure. But Goodrich, my VC co-blogger Will Baude, and Doug Mataconis, all make a highly plausible case that the real concern was frustration with anti-death penalty activists who, in the view of many conservatives, often raise dubious last-minute claims in the hopes of delaying executions. To say that this factor likely explains the ruling is not to say that it excuses it. The fact that activist lawyers sometimes abuse the process does not relieve the justices of their obligation to carefully consider the facts of each case on their own merits. In this instance, those facts strongly suggest that Ray's lawyers raised the religious discrimination claim as quickly as possible. But a bias against seemingly late-breaking claims in death penalty cases is not the same thing as a bias against Muslims.

Some of those who contend that the Ray decision reflects an anti-Muslim double standard also link it to the Court's recent ruling in the travel ban case, where it upheld the president's order barring citizens of several Muslim-majority nations from the United States, despite very strong evidence of bigoted motivation that would have led the policy to be struck down in most other contexts. I yield to no one (or at least to very few) in the degree of my opposition to the travel ban ruling. I consider it one of the worst Supreme Court decisions of my lifetime. Unlike Dunn v. Ray, it really did set a dangerous precedent. The "national security" rationale for the travel ban was, if anything, even more dubious than the prison's security justification for barring Ray's imam from the execution chamber, thereby creating a precedent for upholding similar flimsy pretexts for discrimination in the future. And there is indeed an egregious double standard at work in the travel ban case.

But the double standard at issue was not the result of bias against Muslims, but rather of giving unwarranted deference to the government in immigration cases, that would not be applied elsewhere. For reasons I summarized here and more fully in an amicus brief I coauthored in the case, that approach is deeply at odds with the text and original meaning of the Constitution. It also lacks any good pragmatic justification. But the double standard is not motivated by anti-Muslim bigotry on the part of current Supreme Court justices, and has roots in previous immigration decisions involving other groups. Indeed, both Chief Justice Roberts' majority opinion and—even more so—Anthony Kennedy's concurrence, express thinly veiled distaste for Trump's anti-Muslim statements and motives.

Dunn v. Ray and especially the travel ban case are terrible decisions, even if not motivated by anti-Muslim prejudice. I hope the former will not be a model for future cases, and that the latter will eventually be overruled. But we can more effectively oppose such rulings if we understand what led to them in the first place.

NEXT: Judging Neomi Rao

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  1. Here is some advice for Prof. Somin, if he cares about anything other than virtue signalling. Since he concedes that “activist lawyers sometimes abuse the process,” he should regularly call them out when that occurs. That way, he will develop a reputation as an honest broker, and will have credibility with both sides. Also, he should explain the facts of the case and visit the graveyard of the murder victim, to show that he appreciates the actual issues.

    1. Of course death penalty lawyers sometimes file meritless last second appeals hoping for a miracle.

      But Prof. Somin is right that this one had merit.

      1. Enough already. Merits or not, this was the equivalent of of quibbling about halal vs kosher last meal for the condemned. He don’t need no spiritual guide, nor one that he conveniently adopted in the decades following his initial arrest and conviction.
        He lived two decades longer than what an effective capital case should if it is to mete out justice in a timely manner. It is about time that he began serving out his sentence this past week.

    2. “…Also, he should explain the facts of the case and visit the graveyard of the murder victim, to show that he appreciates the actual issues.”

      There have probably been dumber comments on the VC in these many years. But none comes to mind. He should visit the grave of the victim? To show (How? God only knows) that he appreciates the actual constitutional issues in this case????

      This is an obvious result when non-lawyers participate in a legal blog. It’s often a benefit and not a negative. But, wow, the mind boggles at this particular idiocy.

    3. Visiting the grave would be the ultimate exercise in virtue signalling. What possible insights would he gain?

      1. My God – you mean he’s dead?!

  2. There’s been more collective outrage over a multiple murderer who suddenly decided wants a imam three steps away from him after 20 years not getting than hundreds of thousands of babies getting pulled to pieces each year. Funny world we live in.

    1. Precisely how much American public policy should, in your judgment, be founded on fairy tales?

      Carry on, clingers.

      1. Do you have an imaginary person you’re holding a conversation with that your replies often seem to be only loosely connected to the post you’re replying to?

    2. Amos,
      Did you read the OP. You can hate evil people (that seems perfectly rational) and you can argue that evil people should not get certain constitutional rights that everyone else has. (Also seems like a rational argument, although you and I would probably disagree about which rights should be lost.) But when making your argument, it’s okay to be accurate as well. There is nothing in the facts of this case that suggest that he ‘suddenly’ decided that he wanted someone from his faith with him at the end. I think the facts are pretty clear that he wanted this for some time, made his desires known to the prison for some time, and filed a legal objection late only because his request was filed so late. Right? I think you would agree that, speaking generally, if someone files 5 days after receiving notice of X, it’s not the same as someone waiting weeks and week, or months and months. Five days seems pretty quick, actually, to get a decision, get notice to your lawyer, have her do the research and writing, and then submit the document(s) to the court. It certainly does not smack of abuse of process. (I would absolutely agree with you that if someone has actual notice, and holds off for an extended period, a court should be allowed to factor that delay in, to avoid future abuses in similar cases.)

      1. …oops.

        Not that he filed so late. Rather, that the prison gave him an answer so late.

        (Did we ever get an answer as to why Reason refuses to provide an ‘edit’ function?)

          1. FYTW??? (Even a Google search did not help me)

            1. Matthew was trying to answer your question, santamonica. Reason doesn’t give us an edit button because “[expletive] You, That’s Why”.

              I’m not so ready to assume arrogance and bad faith by the technologists behind the Reason commenting system. I think it’s at least equally plausible that they are just incompetent to get the technology right. And maybe more likely, they can’t figure out how to keep people from editing comments in such a way as to make the replies incomprehensible.

        1. Slashdot refused an edit function because people would play trolling games, making an outrageous statement, engendering an angry response, then go back and edit their post to something else to make the responder look like an ass.

      2. This is not the 4 seasons. If a murderer wants his imam 3 steps away from him instead of 5 steps, its up to him and his lawyer to get their ducks in a row. If you can find evidence that the inmate within a reasonable interval of his allotted 20 years of staring at the ceiling of his cell and lifting weights, took the time to try to ensure that these spiritual needs that he allegedly values so much were met instead of bringing up the matter last minute than thats one thing. Otherwise..

        And while you’re off rending your garments over that. I’ll save my compassion for the in comparison minor matter of cancer patients and the thousands that are aborted each year a large proportion of which have nervous systems developed far beyond the point at which libs scream and cry about animal mistreatment.

  3. giving unwarranted deference to the government in immigration cases, that would not be applied elsewhere.

    I keep posting the text of the US code so Ilya doesn’t have to.

    8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.


    1. And this exempts the President from having to comply with the Bill of Rights how?

      1. Well, it doesn’t, of course, but if you’re an alien and outside the US, the Bill of Rights has got squat to do with you.

        1. Of course the establishment clause limits the action of government, including in the area of immigration. So for the 18 millionth time, your argument is entirely beside the point.

          1. When some President gets around to limiting the free exercise of religion beyond the borders of the US, or interfering with an establishment of religion out there somewhere, get back to me. In the mean time, thwarted would-be immigrants are perfectly free to exercise their religion somewhere else.

            1. For the 18,000,001 time, your argument is entirely beside the point.

  4. I like everyone’s optimism that, if the prison had only had a rabbi and no priest, a christian death penalty inmate would have gotten the same answer from the Justices.

    1. I don’t see any reason to think otherwise. However, said inmate would never have gotten the same answer from the Alabama prison officials.

  5. If the state has apparently always excluded all clerics, apart from the institutional chaplain, from the execution chamber, is it unreasonable to assume that Ray (or his counsel) should have been long aware that his imam would not be allowed to be present with him, notwithstanding that he has not seen the state’s written policies? Everyone involved in his defense and appeal was completely ignorant of the actual practices of Alabama in this regard?

    1. Why is it so strange to think his lawyers would be unaware? Given the demographics of Alabama, how often was this scenario likely to arise?

      And it doesn’t matter what “everyone involved in his defense and appeal” was aware of; it only matters what Ray was aware of. Let’s assume his lawyers did know that only protestants were allowed in the room. Unless Ray happened to mention to his lawyers, “Oh, by the way, I want an imam in the room with me,” how would it even have come up?

      Also, I think people are misunderstanding the facts. It’s not just that he hadn’t seen the state’s policies; it’s that the state actually misled him. Alabama law says that his advisor can be present at the execution. It was only the secret procedures that weren’t law that said that the protestant could come in the room and the other spiritual advisors couldn’t.

      1. I think it’s quite possible to be unaware of a hypothetical “Imams can’t enter the execution chamber” rule, and yet be aware of an actual, “Only these specific people can enter the execution chamber” rule, and notice that none of them happen to be the designated Imam. While it’s possible no prior death penalty subject had asked for an Imam by his side, it’s rather more likely that one asked for SOMEBODY by their side.

        “Alabama law says that his adviser can be present at the execution. ”

        And so he was, mere steps away.

        1. Fair enough. But then what is the value having a Christian chaplain there for Christians? As opposed to a mere few steps away?

      2. But it wasn’t a state secret that non-department personnel would not be allowed in the execution chamber, at least by the consistent and obvious practices of the state to exclude all non-official persons. Ray should have been unaware of this yet he declined to pursue his rights until late Jan. 2019. I’m suggesting this as flaw in Kagan’s reasoning on the timeline.

        1. Make that “Ray should have been aware”

    2. According to some of the dissenting details, there is at least some evidence that the state did in fact go to some trouble to make their procedures secret. Given that question was not directly addressed by the court, I do think it is unreasonable to assume that Ray or his Counsel should have been aware of this restriction.

      If you can offer evidence that Ray or Counsel had a reasonable opportunity to know of this rule, I will withdraw my objections. But no, you ought not to be able to merely assume it.

  6. “I … see no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner.”

    There is a very good reason. The district court found that he should have known, since he had been in the prison for 19 years. District court’s are the ones charged with making factual determinations, and it is established precedent that Courts of Appeals cannot overturn that unless the finding is clearly erroneous.

    1. “We agree as a matter of doctrine, but the district court seems to have overlooked a key point: That the claim was brought at the last minute does not necessarily establish that it was brought in a dilatory manner. . . . Thus we are left with only the suggestion that he must have known ADOC policies from an earlier date because he sat on death row for a lengthy period of time. But the state has provided no evidence that Ray would have learned at any point about these polices or that he could have filed a lawsuit challenging these policies any earlier than he did. According to Ray — and it is unrebutted on this record — he first requested and was denied accommodations based on his religion on January 23. He filed his complaint in district court on January 28, just five days later (including two days which fell over a weekend). The state has not provided us with any evidence that Ray knew or should have known that his religious beliefs would not be accommodated prior to January 23, or that he had any opportunity to request an accommodation prior to that date.”

    2. “Given the paucity of evidence, it is not altogether surprising that the state has not even clearly argued that Ray knew or should have known sooner that his religious beliefs would not be accommodated. The state argued before the district court only at the highest order of abstraction that “Mr. Ray is responsible for the delay” because “[c]ertainly Mr. Ray could have pursued this claim or pursued his desire to have a private spiritual advisor at an earlier time.” To support these claims, the state offers only the barest assertions about common knowledge in the prison. Even if we were to assume that some prisoners on death row are aware that the prison Chaplain has been present in the execution chamber in the past, there is not much else to support the inference that Ray knew or should have known that the Chaplain’s presence was required, let alone that he should have known his request for an imam would be denied.”

    3. “The state has not suggested that any non- Christian prisoners, like Ray, have requested or been denied an accommodation in the past in a manner that might even arguably have placed someone like Ray on notice. Nor has the state suggested that its confidential procedures, filed under seal with the district court, might have provided any other inmate with any notice. The state has not suggested that these procedures were made available to anyone.The long and short of it is that Ray has provided an altogether plausible explanation for why the claims were not filed in district court sooner and the state has neither argued nor produced any evidence that the petitioner was aware that the claims were available at an earlier date.”

      1. It seems that you are saying is that the appeals court was right to overrule the factual determination of the district court, but the Supreme Court was wrong to overrule the factual determination of the appeals court. It’s hard to see your thinking as other than wholly instrumentalist.

        1. Angammus is quoting Kagan’s dissent that SCOTUS was wrong to overrule the appeals court.

          1. Yeah, I know how to read. Angammus is adopting Kagan’s words and making them his own. If she were here, I would tell her the same thing: her reasoning is wholly instrumentalist, and therefore unprincipled and unpersuasive.

          2. The 3 quotes above that Angammus posted are from the 11th Circuit’s decision, not from Justice Kagan’s dissent.

        2. Close, but no.

          The Appellate court should have overruled the district court for the reasons they explained.

          The Supreme court should not have overruled the appellate court because they explained no factual disagreement.

          If the Supreme Court had said “we agree with the district courts factual findings, and overturn the appellate courts ruling because (reasons)” then we’d be here talking about what those reasons are, rather than talking about the lack of reasoning.

  7. Given the facts as known, I don’t feel any better knowing that the Court relied on a time frame argument rather than an anti-Muslim bias.It doesn’t bode well for the future.

    1. While I think that, on the merits, the State of Alabama was wrong, this was not some horrible injustice. The prisoner was not challenging his conviction nor the fact that he was sentenced to death. Just the procedures of execution. His imam was allowed to accompanying up to the next room and watch from the window. If the warden had any brains, he would have said to the chaplain to stay outside too and that would have been the end of the whole issue.

      1. I have seen worse injustices but pettiness is not a good look imo.

      2. The chaplain did leave the chambers during the execution. It’s not clear to me as to whether that was on request of the inmate or a decision by the warden made with no request or whether it was done voluntarily.

  8. So the 11th Circuit abused its discretion by exercising an insufficient amount of presumptive disfavor for a last-minute filing? Hm. Interesting that the fellow who testified against him appears to be in regular, perhaps slightly schizophrenic, conversations with divine forces. https://tinyurl.com/y24ql9y2 (supremecourt.gov) The other side of the Establishment claim seems stronger, frankly. Presumptively having an employee chaplain in the room is a bit like the Reformation preachers hectoring the Jesuits to repent at the scaffold. (Even if they agreed to waive it here without conceding constitutional fault.)

  9. Even if the Supreme Court had granted a stay, couldn’t the prison authorities have made the whole thing moot by letting Mr. Imam into the death chamber for this one special occasion? I presume he’d have been checked for weapons and would have been surrounded by armed corrections personnel. A bit improvised, but it would have gotten the whole business over with without any discrimination questions. Then they could have issue a press release saying that they were acting against protocol in deference to the Supreme Court, but in future they’d adhere strictly etc., etc.

    1. OK, instead of “granted a stay,” “allowed the stay to stay in place.”

    2. Of course they could have done. But it’s Alabama.

  10. I agree that the Supreme Court’s motivation wasn’t religious discrimination (I can’t speak for the Alabama Correctional Facility, though). But I disagree with it not setting a dangerous precedent. The Court makes dispositive a factually erroneous claim of undue delay in a manner that can be used as precedent in any case in the future where a last minute claim is filed because a filing five days after discovery that wasn’t even disputing the state’s ability to execute the inmate was undue delay. It’s deliberately reaching out to decide an issue just so it can be used as a weapon in future death penalty cases.

    Compare that to the travel ban case, that at least drew pretty heavily on the established precedent of Kleindienst. It doesn’t have to be read as creating any new precedent, just affirming preexisting (terrible) cases that are legion in immigration law.

  11. I’m confused here. Did the state refuse to give the imam the training, or did they say that because he hadn’t had the training, he couldn’t enter the death chamber?

    1. The state said that only prison officials could be in the death chamber, and the prison chaplain was an official. So he got in (lucky fellow! –/sarc). The idea of “training” was introduced by Ilya Somin here at the VC.

      1. The issue of training was brought up in the district court’s decision, in the 11th Circuit’s decision, and in Justice Kagan’s dissent. Alabama (i.e. the Commissioner of the ADOC) also brought it up in its application to the Supreme Court to vacate the stay. It didn’t, however and as best I can recall, specifically argue that it didn’t have time to provide training for the imam.

        Also, the ADOC agreed, as Mr. Ray had requested, to not have the ADOC-employed chaplain in the chamber.

  12. How about replacing the stay of execution with this: “the prison is not to exclude Mr. Imam from the execution chamber when petitioner is being killed, provided Mr. Imam complies with reasonable security protocols.”

    That wouldn’t delay the execution, it would just deal with a scenario where killer dude wants the last-minute consolations of his religious counselor.

    It wouldn’t be a stay of execution, so the victims’s relatives wouldn’t get jerked around at the last minute, but it would deal with the religious-liberty concerns.

    If the state really wanted to fight, it would be *their* authorities which would have to grant the stay of execution, so as to give themselves an imam-free execution chamber.

    So far as the *federal* courts are concerned, don’t delay the execution, just say if Mr. Imam is around, and agrees to get frisked for guns etc, he can be in the death chamber.

    1. I think that’s right. All the state would have to do is screen and/or train the appropriate religious advisor when someone is sentenced to death. And they have plenty of time, since apparently it takes 19 years to carry out a death sentence.

    2. A federal court could, effectively, order that. But it couldn’t just do it for the heck of it. It would have to be because it found, e.g., that Alabama’s policy or decision (to not allow the imam in the chamber) violated the Constitution.

      That’s the point of issuing the stay. A court would need time to consider the merits of the underlying challenge and make such a determination. So either a court issues a stay and Alabama doesn’t get to proceed with the execution until the merits issue is resolved, or Alabama can proceed with the execution as it has decided to – without allowing the imam in the chamber. Or, of course, Alabama could decide on its own to allow the imam in the chamber.

      1. I’m trying to think of a situation where a temporary stay wouldn’t delay the execution, simply require prison authorities (on penalty of contempt, naturally) to let Mr. Imam in the room if an execution happens during the period of the stay. But then the stay would be moot and it wouldn’t be a stay…so I guess I broke my brain thinking that one over.

        1. “OK, we won’t delay this guy’s appointment with death, kill him when you want, but if we find you kept Mr. Imam out of the room in violation of our order we’ll punish you for contempt of court. That way we have a remedy addressing the wrong, not delaying the execution but vindicating religious freedom. If you think you’re complying with religious freedom, you can grant a stay of execution yourself until these proceedings are over, in hopes you’ll win the final decision. That would be on you, because we ourselves won’t postpone this fellow’s punishment.”

          I’m thinking this would have served the victims *and* protected religious liberty *at the same time.*

          1. Perhaps they could only mostly kill him a la Miracle Max.

    3. I think having guns on him in an attempt to Rambo him outta there is less likely than grabbing the guy and refusing to let go. Yes they could pry him off, but then maybe the inmate is injured and, ironically, they may have to delay again and give him treatment first.

  13. Alabama apparently bars people not employed by the state. It is not hard to imagine allowing the prisoner to select any “spiritual advisor” could easily result in a committed anti death penalty activist being designated as a “spiritual advisor” with the obvious consequences.

    The simple solution is to bar the state’s chaplin, regardless of religion from the execution chamber.

    1. If there is evidence that having a religious figure in the room does pose an elevate risk; then yes, I think your “100% ban” would satisfy even strict scrutiny.

      I suspect that Christians would raise bloody murder (pun intended), so I doubt that such a consistent rule would ever be enacted.

      1. Sigh.
        …scream bloody murder…, not ‘raise’ bloody murder

        [grumble grumble…lack of edit button…grumble, grumble]

      2. I don’t believe Ohio allows any type of minister in the execution chamber, and I haven’t heard anyone screaming bloody murder about that.

    2. Why does the state even employ a chaplain? If they employ someone to provide Christian ministry but not that of any other religion, it’s surely a breach of the Establishment clause.

      1. Christianity isn’t just “a” religion, it’s a huge family of religions, which until quite recently covered about 99% of the population in America that wasn’t non-religious. So if you had a Christian chaplain, you had everything but the rounding error covered.

        So it actually did make sense, prior to the rise in prison conversions to Islam.

        1. “Christianity isn’t just “a” religion, it’s a huge family of religions, which until quite recently covered about 99% of the population in America that wasn’t non-religious”

          Jews have generally been between 2% and 5% of the population through American history, so this policy wouldn’t have covered them. And within Christianity there are some schisms, particularly related to Catholics and non-Catholics. Catholics are the largest Christian religion in American – although not in Alabama – and this policy wouldn’t have covered them since the prison chaplain was a Protestant. So, no, the policy isn’t reasonable by any definition.

          And the Establishment Clause, like the rest of the stuff contained in the Bill of Rights, is supposed to cover 100% of us. 99% is less than that.

      2. “Why does the state even employ a chaplain?”

        I’m not anti-religious (in fact, I’ll be heading out to church here in an hour or so), so don’t take this as an anti-religious statement, but religion serves the political right as their vehicle for virtue signaling.

        1. Oh, agreed, in much the same way as mindless hostility to (non-exotic) religion serves the left.

          But, seriously, this would not have been an issue a few decades ago, so just having a Christian chaplain would be understandable; You’ve got almost the entire demand for religious counseling covered with one guy.

  14. Seems to me, what happened here was that a very able lawyer (zealously representing a client within the confines of professional ethics) held off until late in the game to pull what was hoped to be an ace out his sleeve. Looks like the SC ruled accordingly.

    1. Justice Kagan believes you to be an uninformed dope, and she is right.

      I see you as a stale-thinking right-wing bigot, cranky about losing the culture war and seeing your political aspirations crushed and mocked by your betters.

      1. Who cares what an ugly lesbian Judenrat thinks?

        1. The distinction between this blog and RedState, Breitbart, FreeRepublic, Instapundit, and the like has become little more than a veneer.

          Yet the Conspirators wonder why strong law schools do not accept the invitation to emulate a number of unranked and fourth-tier schools by hiring more movement conservatives as law professors.

        2. Reported.

          You crossed a line there.

          1. Yeah, that’s so far out it makes me wonder if ARWP has always been a parody account, just the opposite valence from Leftist-Libertarian.

            I suppose (since it makes me feel better) that’s the point of satire – some people won’t be able to tell the difference.

          2. Do you deny that she’s a Judenrat? Her religion is leftism, and she would gladly send real Jews to the gas chambers to protect her pet “rights” to abortion and same-sex “marriage.”

            1. You are so obviously a bored lefty taking the piss out of all of us. Why don’t you come clean, you’ve been at it long enough.

    2. Jack, that may be true. But if the Alabama policy is indeed unconstitutional, SC should address that issue, even if what brought the issue up is some funny business by the death penalty defense bar. Blind squirrels and nuts etc.

      1. I really have nothing to add to the views expressed by Will Baude in his post of 2-8-2019. Having said that, at some point the door must be closed; otherwise appeals in many cases will never stop.

        1. Yeah, but it would be nice if closing the door doesn’t involve ignoring a possibly unconstitutional procedure.

  15. How do you think Russian Jews like yourself would fare under Muslim rule? Why do you want to fill America with these people?

    1. You mean by comparison with Czarist rule?

  16. I don’t know whether the Court was motivated by anti-Mulsim animus. Maybe not.

    But IMO this would have come out differently had the condemned man been a Christian denied a pastor of his own faith. Would the Court have granted a stay to a Catholic prisoner who wanted a Catholic priest in the chamber? I’m guessing “yes.”

    Incidentally, while we can’t read the minds of the Justices, there is an interesting test here for the State of Alabama. If they are truly concerned about this matter they can change the law to allow a clergyman of the prisoner’s choice in the chamber.

    1. “interesting test here for the State of Alabama. If they are truly concerned about this matter they can change the law to allow a clergyman of the prisoner’s choice in the chamber.”

      Yep. Or just say that all condemned get to visit with their preferred clergyman immediately outside the execution chamber, and then no clergyman of any faith inside. Either works.

      But I wouldn’t hold my breath. Alabama is the state that gave us Roy “I Want America to be a Christian Theocracy” Moore.

      1. If liberals want America to be a socialist “paradise” why is it converting to a “Christian Theorcracy” off the table? I would argue neither is a preferred result, but if the left is gun-ho over socialist policies what is so bad about the right becoming the same about transforming society into its own image as well?

        1. “If liberals want America to be a socialist “paradise” why is it converting to a “Christian Theorcracy” off the table? I would argue neither is a preferred result, but if the left is gun-ho over socialist policies what is so bad about the right becoming the same about transforming society into its own image as well?”

          Because both suck when it comes to, you know, liberty and freedom. I don’t admire Moore and I don’t admire AOC, both for the same reason.

          My point was that I wouldn’t expect Alabama to change or adapt the procedure because it plays well to the audience.

    2. Most would call this just pure speculation based upon nothing but pure speculation.

    3. “Would the Court have granted a stay to a Catholic prisoner who wanted a Catholic priest in the chamber? I’m guessing “yes.””

      So are you suggesting that Alabama has never executed a Catholic while the chaplain was a protestant, or just that the Catholic’s lawyers weren’t smart enough to come up with this gimmick?

      1. No.

        First, according to the dissent the AL statute does not bar the imam from the chamber. That was a policy of the warden. Other wardens may have seen matters differently and allowed a priest in the chamber. In addition, it may be that condemned Catholics did not much care about this.

        Your characterization of this appeal as a “gimmick” is unjustified.

        And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear).

        So the appeal was filed pretty much as soon as the situation was clear.

        Regardless, as I said, it’s my opinion – no more and no less.

        1. No, my characterization of this appeal as a gimmick is justified. You are the one just making shit up.

  17. Let’s be clear about the actual facts here:

    1. The prisoner was NOT denied religious counsel of his choice. He was provided with an iman of his selection. That iman was permitted to counsel him up to and including right before the prisoner entered the execution chamber.

    2. The main difference between the prison chaplain and the outside iman was that the prison chaplain was a state employee AND trained to be in the execution chamber. The iman was just a guy from outside the system, not screened, and not trained to be in the execution chamber.

    3. The accommodation was was made, granted it was after suit was filed and I would say in an ideal world the request should have been honored as a matter of policy before that happened, is more than sufficient. The Chaplain stayed out of the room.

    The left is attempting to turn this into something it isn’t to just build its narrative. That is all.

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  19. You know, there’s an easy way to eliminate all of these problems associated with the death penalty…

    1. Immediate execution in the judicial chambers on conviction?

      1. Running Man style – guilt or innocence doesn’t matter, only the spectacle of justice!

        1. “on conviction”

          President McKinley’s killer was executed 7 weeks later. Better than 20-30 years which is the norm now.

          Justice delayed is justice denied.

          1. The current system sucks, but is where America seems to come down – very pro-death penalty, but also deeply uncomfortable with actually doing it on a case-by-case basis. And with fringes on either side keeping things stable.

            You wrapping your preferred outcome in the banner of justice doesn’t go too well with your enthusiasm to deny murderers constitutional rights.

            1. The goal of Constitutions and law is justice.

              Justice demanded this clearly guilty person be executed years ago.

  20. “What, then, explains the Court’s decision?”

    It wasn’t timely. Stop looking for bigotry that isn’t there.

    1. The guy sued within a week of finding out his request was denied. How much more timely do you expect a prisoner, who is being denied access to relevant materials, to be?

  21. “A grave injustice is exactly what it is.”

    Yes, the rape and murder of Tiffany Harville [not even mentioned here] certainly was.

  22. So, Justice Kagan, how late is too late for an appeal of this nature?

    1. The issue in dispute in the dissent isn’t how late, it’s when notice was received.

      Doesn’t matter if it’s minutes before the execution if the state’s hiding the ball.

  23. There are over 300 different religions in the U.S., are they all to be accommodated? If so, how about those that “sincerely” convert from one religion to another during their last hour, and keep “sincerely” doing so during subsequent last hours?

  24. So the SCOTUS wasn’t acting out of anti-Muslim bias, they just didn’t care enough to do their jobs properly in stopping illegitimate anti-Muslim bias.

    That’s better?

  25. As I predicted, Alabama has already changed its policy. No chaplin for anyone!

    Everyone happy?

    1. I’m not happy, I like my Chaplin, also Buster Keaton.

    2. santamonica811 has assured us that Christians would raise bloody hell if that happened.

  26. I’m curious how those who view Alabama’s former policy as unconstitutional view prison and military chaplains in general. Are they all unconstitutional across the board?

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