By Nicole Kennedy and Collin Slowey
Religious freedom discussions in today’s political discourse tend to focus on, to borrow the words of Chelsea Langston Bombino, “birth control, baking and bathrooms.” Many Americans therefore assume that the only pressing First Amendment issues are those that relate to sex and gender. These religious freedom challenges are real and important, but religious freedom deals with much more, and the American moral imagination should encompass it all.
The recent Supreme Court case Dunn v. Ray demonstrates why it is important to think of religious freedom in as expansive a manner as possible. On Feb. 7, Domineque Ray, a convicted felon, was executed in an Alabama prison. Ray, a Muslim, asked on Jan. 23 for his imam to be present for his death, but the prison refused. Official policy only permitted a Christian chaplain, who had received procedural training, access to the execution chamber. Ray filed a legal complaint on Jan. 28 but ultimately died without his spiritual advisor.
The right to religious exercise, explicitly protected under the First Amendment, is especially important at death. The taking of a life is not something to be done lightly, but even if the state’s actions are justified, special care should be taken to affirm the condemned person’s innate human dignity. Because practicing religion is so fundamental to what it means to be human, religious freedom is paramount in capital punishment procedures. As Christians, we should pay attention to cases like Dunn v. Ray, which broaden our understanding of First Amendment issues. Cases like this one may represent injustices—just as real as sex and gender-related ones, if less visible—that desperately need to be remedied. Moreover, they present us with invaluable opportunities to unite across ideological lines for the cause of religious freedom and civic pluralism.
On the night of the execution, the Supreme Court voted in a 5-4 decision not to stay the procedure. The majority claimed that the last-minute timing of Ray’s request invalidated any qualms he might have had with the prison’s policies. They referenced the 1992 decision in Gomez v. United States Dist. Court for Northern Dist. of Cal. that says, “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”
In her dissenting opinion, Justice Elena Kagan criticized the majority decision on the basis of the Establishment Clause, the part of the First Amendment that prevents the establishment of a state religion. As Justice Kagan pointed out, the Court has stated in the past that the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” This means Muslim prisoners should have access to the same services as Christians, including religious services. Kagan’s dissent also casts doubt over the majority’s security justification, asking, “Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received?”
It is important to note that the majority’s decision was, at least technically, religiously neutral. The reasoning was based on procedural timing issues, not religious animus. Luke Goodrich of the Becket Fund explains that “legally, that distinction is important because it means the decision creates no new precedent for religious-freedom cases.” The court’s decision concerned the timing of when Ray requested an imam; it did not suggest in any way that a prison could require only Christian chaplains to be present at executions.
However, though the outcome of Dunn v. Ray does not conflict with the Establishment Clause in a legal sense, it reflects a troubling lack of practical religious freedom in Alabama prisons. And when it comes to protecting vital rights, the practical details matter. As Leah Litman observes, Alabama’s law “does not distinguish between different religious counselors, or indicate who the prison had on staff by way of religious counselors who could accompany someone to the execution chamber.” The state did not prepare for the diversity of prisoners, nor did it take proactive steps to provide a trained imam upon Ray’s request.
In his book Pluralism and Freedom, Stephen V. Monsma champions the idea of civic pluralism. According to principles of public justice, which urge Americans to determine the right roles and responsibilities of government and civil society, pluralism means moving from abstract support of diversity to protecting groups and individuals whose beliefs differ from our own. Monsma highlights the special importance of protecting religious diversity, since “religious beliefs and practices deal with some of the deepest felt of human beliefs.”
The ability to practice one’s religion deserves special protection at the end of life, when this existence gives way to the next and individuals, in many instances, wish to ready themselves for judgement. That’s what makes the Dunn v. Ray case so important, especially for those of us who share a belief in the afterlife. Christians, as well as those of other faiths, should be careful not to adopt a narrow and inadequate view of religious freedom.
Laws and court decisions concerning religious freedom in the context of sexual ethics are undoubtedly significant, but these must not become the sole focus of religious freedom advocacy. If we let that happen, we will rightly deserve the criticism of those who characterize us as single-minded and self-interested. Instead, we need to actively search out common ground on which to build cross-ideological support for religious freedom.
What happened in Dunn v. Ray makes it clear that as a people, we may still have a long way to go before we achieve authentic religious freedom. The state of Alabama should take measures to make diverse clergy available for its diverse group of inmates. The Supreme Court may need to reconsider its decision, which allowed the prison to continue with Ray’s execution without making an appropriate arrangement. Regardless, the case cuts to the heart of the First Amendment debates, reminding us that laws alone cannot establish systemic justice for people of faith.
To bring about true civic pluralism, Americans of all beliefs must hold public institutions accountable. We need to make sure that they practice what they preach, especially at those moments when religious freedom is most important.
Nicole Kennedy is a former legal fellow with the Center for Public Justice and an attorney-in-training at the University of California, Irvine.
Collin Slowey is an intern with the Center for Public Justice and a political science student at Baylor University.