Amy Coney Barrett joins the liberals in blocking an execution on grounds of religious freedom.

On Thursday night, the Supreme Court blocked Willie Smith’s execution in a surprising and somewhat intriguing decision that divided the court on unusual lines: Judge Amy Coney Barrett joined the three court liberals to maintain that Alabama must let Smith, a devout Christian, bring his pastor into the execution chamber when he is killed. The decision suggests that Barrett can apply the principles of religious freedom more consistently than some of his conservative colleagues, even when it leads to a result favored by progressives and against conservatives. There is, however, a mystery at the heart of the court order: because it is a “shadow” decision, we do not really know who gave the fifth vote to stop Smith’s execution.

Dunn v. Smith it is the latest in a row of cases that question whether the government can ban prisoners from death from bringing a religious adviser to the execution chamber. In 2019 it is notorious Dunn v. Ray, the court allowed Alabama to exclude the imam of a Muslim prisoner from the chamber by 5–4 votes. All four liberals disagreed. They accused Alabama of religious discrimination in violation of the First Amendment because it allowed prisoners to bring a Christian chaplain to accompany your final moments, but not an imam. Less than two months later, the court appeared to reverse the course: by a 6-3 vote, it banned Texas from executing a Buddhist prisoner without the presence of his spiritual advisor. This time, Judge Brett Kavanaugh, accompanied by Chief Justice John Roberts, noted that Texas allowed Christian chaplains to accompany prisoners in their final moments; if the state allows religious figures from one religion to enter the death chamber, Kavanaugh concluded, it must allow those from other religions to enter the chamber as well.

In response to these decisions, Alabama simply barred everyone religious counselors of accompanying prisoners when they are sentenced to death. Willie Smith, yet another inmate on death row in Alabama, attacked this new rule under a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The law prohibits prisons from placing a “substantial burden” on an inmate’s “religious exercise” unless that burden satisfies strict scrutiny. To meet this standard, the religious restriction of prison must constitute “the least restrictive means” of promoting a “convincing governmental interest” – an “exceptionally demanding” standard. Smith’s claim under RLUIPA is therefore broader than the claims of previous prisoners under the First Amendment. He is not required to prove that Alabama favored other religions over his own, only that the state’s total ban on religious figures in the death chamber is not the “least restrictive means” of maintaining prison security.

Judge Elena Kagan – accompanied by Judges Sonia Sotomayor, Stephen Breyer and Barrett – endorsed Smith’s argument Thursday night. Security, Kagan wrote, is certainly a compelling governmental interest. But “past practice, in Alabama and elsewhere, shows that a prison can guarantee security without barring all members of the clergy from the execution chamber.” Alabama argued that it cannot rely on members of the clergy who are not affiliated with the state or prison to enter the chamber – but that, Kagan wrote, is not true. She pointed out that many states, as well as the federal government, “have allowed members of the clergy with no connection to the government to watch the execution of a prisoner” without interruption.

Alito or Gorsuch (or both) must have voted with Barrett and the liberal judges.

“Nowhere, as far as I can tell, has the presence of a member of the clergy (whether appointed by the state or independent) hindered an execution,” explained Kagan. “Alabama can take a number of steps to ensure that a member of the clergy will act responsibly during an execution,” including a background check, an interview and “a fine promise” that they will follow the rules. “What the State cannot do,” she concluded, “consistent with strict scrutiny, is simply to assume that every member of the clergy will not be trusted – or, to put it another way, that only the most severe restriction can work.”

Kavanaugh, along with Roberts, disagreed. “As the State’s policy is non-discriminatory and, in my view, it meets the State’s imperative interests in ensuring the safety, security and solemnity of the execution room,” he wrote, he would have allowed the execution to continue. Judge Clarence Thomas also noted his dissent. This leaves us with a big unanswered question: who took the fifth vote to block Smith’s execution? By the process of elimination, we know it was Samuel Alito or Neil Gorsuch. But in 2019, in an opinion united by Gorsuch, Alito expressed skepticism about the argument that RLUIPA requires that prisons allow prisoners to bring spiritual counselors to the death chamber. Alito credited the state’s claim that it could not be trusted that an external spiritual counselor behaved properly during execution. And he speculated that “allowing members of the clergy and spiritual advisers who are not official chaplains to enter the execution room” could “set an impractical precedent.”

Obviously, Alito or Gorsuch (or both) changed his mind between then and now, because somebody cast the deciding vote with Kagan, Sotomayor, Breyer and Barrett to prevent Alabama from killing Willie Smith. However, in a “summary” decision like this, issued without complete instructions or arguments, judges are not required to register their votes. Thus, the Supreme Court changed the law on religious freedom and the death penalty without providing a majority opinion for the lower courts to follow – and without telling the public which justice provided the crucial vote to safeguard Smith’s rights. (Smith will still be killed, although with the presence of a pastor who, in Smith’s words, “will ease his struggle when he passes” and help him “properly express his repentance to God.”)

In addition to this puzzle, the most notable aspect of the court’s decision in Dunn v. Smith it is probably Barrett’s alliance with the rest of the liberal judges. There is no doubt that Barrett is very conservative, but her few votes so far indicate that she can distinguish herself from the more nihilistic far-right judges and supporters of the court. We know that justice deeply believes in religious freedom. But all the judges intend to support this view, and not all apply it consistently – especially when it conflicts with other conservative priorities, such as facilitating quick executions. Barrett, it is worth noting, voted to allow other executions to proceed because of liberal dissensions. But she bypassed Alabama’s extreme politics. With this court, progressives must obtain any victory they can. AND Dunn v. Smith it is a small but significant triumph for an application based on the principles of genuine religious freedom.