The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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.