Troubling ruling in Alabama
Ju stice Elena Kagan described the decision as “profoundly wrong,” and it is hard to see otherwise. She made her point in dissenting to a 5-4 U.S. Supreme Court ruling involving a scheduled execution in Alabama. The court majority permitted the execution to go forward, though the previous day a federal appeals court had granted a delay so the unanimous three-judge panel could take up what it described as “a powerful Establishment Clause claim.”
The appeals court argued: “We can think of no principle more elemental to the Establishment Clause than that states and the federal government shall not favor one religious denomination over another.”
Does Alabama show such favoritism in its execution procedures? The question is worthy of examination. In this instance, a Muslim prisoner requested the presence of his imam in the execution chamber. The state said no, citing policy that permits only a Christian chaplain to be present. Thus, as Kagan noted, ” ... 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.”
The appeals court recognized the obvious: This matter deserved a full argument. It put the case on a fast track, a resolution coming in a month or so. That wasn't good enough for the Supreme Court majority, which appeared convinced the prisoner's challenge amounted to little more than a last-ditch effort to put off execution. The high court cited the gap between the scheduling of the execution in November and the prisoner seeking relief in late January.
The state contends that its leading concern is security. It stresses the Christian chaplain is a prison employee who has been trained in the relevant protocol. Perhaps security is the overriding factor, or a more compelling interest than the religious liberty of the prisoner. Yet that weighing of priorities is just what the appeals court wanted to pursue.
This isn't about whether Domineque Ray robbed, raped and killed a young woman. He did, and now he is dead. Rather, the issue goes to how Alabamans, and the rest of us, conduct the death penalty. In that way, the dismissive approach of the court majority is “profoundly wrong.” Ray sat on death row for more than two decades. The appeals court hardly granted a brief delay willynilly. Its concern involved first principles and was owed deference.
A condemned prisoner requested the presence of his imam. The state responded: Sorry, it's a Christian chaplain or none at all. And the Supreme Court agreed, seeing a ruse instead of the substantial and defining questions.