The five conservative justices on the U.S. Supreme Court were in such a rush to see Domineque Ray executed that they ignored the First Amendment. This is because the condemned prisoner was a Muslim, not a member of the favored religion: Christianity.
Two weeks before his execution, Ray met with the warden, who explained the process and told him that the prison chaplain—a Christian—would be present in the execution chamber.
Alabama law says that the prison chaplain, a Christian (always a Christian) may be present. It also allows the condemned to have his own “spiritual advisor” present. But the prison interpreted this to mean that the Christian chaplain must be in the execution chamber while any other spiritual advisor watches from a separate room. Ray, a Muslim, objected. If any religious official would be there, Ray wanted a fellow Muslim.
Five days after meeting with the warden and learning that a Christian chaplain would be foisted on him while his preferred religious counselor would be essentially excluded, Ray’s lawyers asked for the courts to stay the execution, just over a week away. The Eleventh Circuit, in a brilliant defense of the religion clauses of the First Amendment, correctly held that Alabama had violated Ray’s rights: “If Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit.”
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In a two-paragraph opinion, the Supreme Court said that Ray took too long to raise this religious freedom issue and let Alabama execute him. Alabama did. Ray’s imam was not in the room, nor was the Christian chaplain, a last-minute concession.
Let’s leave aside the question of whether government chaplains are constitutional (James Madison didn’t think so: “The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles.”) And let’s leave aside the horror of Ray’s crime and the question of whether state-sanctioned murder is moral or constitutional. Those are important issues, but so is the rank hypocrisy of the conservative justices on the Supreme Court.
We need look no farther than the same-sex wedding cake case the Supreme Court recently decided to find the hypocrisy. There, the court tortured the facts enough to find that the bakery didn’t get a fair hearing and was subjected to religious hostility by the Colorado Civil Rights Commission. The majority manufactured hostility based on statements from Commissioner Diane Rice, who said:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust. . . . we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others. So that’s just my personal point of view.
Rice said this in 2014, when the Commission had already written its order and rejected the bakery’s arguments three separate times. It changed nothing. More importantly, Rice’s statements are true. Religion has been used to justify slavery and murder.
But the court found this hostile to the point of a constitutional violation. So hostile, that the Supreme Court threw out an entire civil rights case, essentially giving the bigoted bakery a get-out-of-jail-free card.
The court did so because, when a Christian is facing off against the government, the First Amendment is important: “the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens …. The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” The Commission was not acting neutrally toward the bakery’s religion.
Now, compare this to the short opinion that permitted the execution of Ray, a religious minority. Nothing about his free exercise of religion. Nothing about his first amendment right. Nothing about government neutrality or hostility. Nothing about the Constitution.
Where did this critical right go? The Christian bakery’s religious freedom (not the baker, it was a bakery) was so important that it got away with violating the civil rights of LGBTQ Americans because the government said something a little bit mean (and true) about the bakery owner’s religion. That tainted the entire proceedings and essentially ratified the bakery’s discrimination.
But the religious freedom of a Muslim prisoner added no weight to the balance. The five conservative justices on the Supreme Court—Kavanaugh, Gorsuch, Alito, Roberts, and Thomas—decided that maintaining a schedule was more important than the prisoner’s religious freedom. That’s it. A delay was worse, far worse, than the state of Alabama violating a Muslim’s First Amendment rights.
That is the message this court sent. If you are seeking justice or vindication of your religious freedom or a religiously neutral government, the Supreme Court has said non-Christians need not apply.
We’ve seen it from this court before: It upheld the Muslim ban. Before that, the justices ignored—literally did not mention—the constitutional principle that our secular government cannot fund religion (found in the Establishment Clause) when it held that Missouri must give taxpayer funds to a church because refusing to do so was religious discrimination.
We could very well see it again in the coming weeks when the court decides the Bladensburg cross case. It seems sadly probable that the court will decide that the government can spend hundreds of thousands of dollars displaying and maintaining a 40-foot concrete cross on government property. The cross was rededicated as a war memorial to all service members in 1985, but it is a cross. It’s the symbol of one religion.
In other words, if it’s a memorial, it’s a memorial to Christian soldiers only. It ignores the service of Jews, Hindus, Muslims, humanists, agnostics, and atheists. About one-quarter of our military are not religious at all, let alone Christian. If the Court decides in favor of the cross, the message will be the same to every non-Christian veteran and service member: Your sacrifice, your service, means nothing because you are not a Christian.
The conservative bloc on this Supreme Court is dividing our nation along religious lines. If it continues on this path, Christians will be a favored, privileged class; non-Christians will be second-class citizens.
Chief Justice John Roberts needs to get his house in order.