It was the kind of outrageous story that grabbed the attention of GetReligion readers, as well as old-school First Amendment liberals who care deeply about protecting religious liberty.
Plenty of journalists saw the importance of this story last week, which tends to happen when a dispute ends up at the U.S. Supreme Court and creates a sharp 5-4 split among the justices.
The question, in this case, was whether journalists grasped some of the most symbolic, painful details in this execution case in Alabama. I looked at several stories and this USA Today report — “Alabama executes Muslim inmate Domineque Ray who asked for imam to be present“ — was better than the mainstream norm. Here is the overture:
MONTGOMERY, Ala. — Alabama death row inmate Domineque Ray died by lethal injection Thursday evening with his imam present in an adjoining chamber. …
Ray was executed after an 11th-hour ruling from the U.S. Supreme Court vacated a stay of execution pending a religious rights claim. Ray, a Muslim, had argued Alabama’s practice of including a Christian prison chaplain in the execution chamber was in violation of the First Amendment. Ray sought to have his imam present in the death chamber at the time of his death.
Imam Yusef Maisonet, Ray’s spiritual adviser, witnessed Ray’s execution from a chamber which held media and prison officials. Two lawyers accompanied Maisonet.
When the curtain opened at 9:44 p.m., Ray lifted his head from the gurney, looking into the witness room. With his right hand in a fist, he extended a pointer finger.
Maisonet appeared to mirror the gesture and murmured that it was an acknowledgement of the singular God of the Islamic faith. When asked if he had any final words, Ray gave a brief faith declaration in Arabic.
OK, I will ask: What did Ray say, in Arabic? Did he speak Arabic? If not, then the odds are very good that Ray’s final words were a memorized quote from the Koran. It would have been good to have known the specifics.
That’s an important missing detail, but not the key to this story. The big issue, in this case, was that Ray was executed without a spiritual leader from his own faith at his side. USA Today managed to get that detail — along with the crucial fact that state policy only allowed a Christian chaplain in the execution room — at the top of this report. That’s where those facts belonged.
Now, why did the U.S. Supreme Court side with the state, in this case?
The 11th Circuit Court of Appeals had previously stayed the execution, writing that there was a possibility Alabama had “run afoul” of the religious freedom clause of the First Amendment.
The U.S. Supreme Court voted 5-4 to vacate the stay “because Ray waited until Jan. 28, 2019, to seek relief.”
So, this was a technicality that was linked to timing. But why did the state want to put a Christian chaplain in the execution room, as opposed to a volunteer Muslim imam?
… Alabama prison officials argued in court that the prison chaplain is allowed in the execution chamber because he is a Department of Corrections employee trained in execution protocol. ADOC agreed to exclude the chaplain for Ray’s execution.
”But after a Wednesday ruling that suggested the state’s practice had “run afoul” of the religious freedom clause of the First Amendment, Alabama amended or altered its lethal injection protocol, according to court records, to exclude the prison chaplain.
As you would expect, this religious liberty conflict drew quite a bit of online commentary.
This was, for an example, a case in which The New York Times editorial page came down hard in defense of religious liberty (with good cause, in my opinion). Read this strong Times op-ed piece, “Does Alabama Support Religious Liberty?”, written by the Rev. Alan Cross, a staff member with the Montgomery Baptist Association.
There was also an explosion of anger on Twitter among many religious conservatives who — when it comes to First Amendment questions — have consistently been defending old-school liberalism on religious-liberty questions such as this one.
For example, see these reactions from two conservative Catholics who have been active in church-state debates, including consistent stands defending the rights of Muslim prisoners.
Whether or not there was a constitutional or (perhaps more likely) federal statutory (RLUIPA) remedy, what Alabama did in not allowing a condemned man to have a clergyman of his own faith with him when he was executed was wrong. It did not need to happen and should not have. https://t.co/2QvGniJdtz
— Robert P. George (@McCormickProf) February 9, 2019
One of the strongest responses — no surprise here — came from columnist David French at National Review, a Harvard-trained specialist in religious-liberty law. The headline: “The Supreme Court Upholds a Grave Violation of the First Amendment.” Here is a sample of that:
… Ray, no matter his crimes, still enjoyed the protections of the United States Constitution. Yet last night the state of Alabama and the Supreme Court failed to respect those protections at the most crucial of moments — they denied him access to an imam at the moment of his death. He could receive solace in the execution chamber from a Christian cleric, but his imam had to watch behind glass.
Any policy that by law or practice provided death-row inmates with access only to Christian chaplains would likely fail 9-0 if addressed on the merits. In this case, however, the Supreme Court didn’t decide the merits. It determined that Ray’s request for an imam was made too late.
See also this interesting and rather complex Twitter thread from a member of the Becket Law team that has played a high-profile role in many recent First Amendment cases involving religion (including cases defending the rights of Muslims).
2. The outcome was wrong. Religious freedom for prisoners is vitally important, as I explained here: https://t.co/O4ZmWpUIWh. Allowing clergy in the same room is the kind of accommodation any prison should be able to provide.
— Luke Goodrich (@LukeWGoodrich) February 8, 2019
Goodrich argued that five members of the court did not reject the First Amendment arguments, but insisted that the motion was filed too late — period. It helps to note that key judges in this case had sided with Muslim prisoners in earlier cases, on different issues.
In other words, this was a complex and somewhat infuriating situation. That is often the case, when dealing with religious-liberty conflicts. However, I would agree with George, Beckwith and French that Alabama’s policy on chaplains raises serious First Amendment issues and has to be changed.
What will Alabama officials do now? Does this story have legs? Let’s end with this passage from deep down in a Montgomery Real-Time News report:
One of Ray’s attorneys from the Federal Defenders of the Middle District of Alabama, Spencer Hahn, said after the execution, “Domineque was a devout Muslim and a human being. He was a son, a father, a brother. He wanted equal treatment in his last moments. I am beyond appalled at the willingness of Steve Marshall and the State of Alabama to treat a human being differently because he was part of a religious minority. We are better than this.”
ADOC Commissioner Jeff Dunn said after the execution that the department is prepared to carry out more executions this year. When asked if the department would be changing their protocol to exclude chaplains of any faith from the execution chamber, as mentioned in an earlier court filing, Dunn said currently the ADOC “has not made any changes to the formal protocol.”
Journalists really need to follow up on this crucial religious-liberty case.
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