Two years ago, in Dunn v. Ray (2019), the Supreme Court rejected a request from a Muslim prisoner on death row for an imam to give him spiritual advice and comfort during his final moments of life. The decision was 5-4 along ideological lines, but triggered a widespread reaction across policy spectrum.
As Judge Elena Kagan observed in her divergent opinion in Lightning, the state of Alabama allowed Christian prisoners to have a spiritual counselor present, but not Muslims, so the Court’s decision in Lightning allowed unconstitutional discrimination between different religions. The day after the decision Lightning, David French, of the Conservative National Review, labeled it “a serious violation of the First Amendment.”
On Thursday night, the Court delivered the closest thing that is likely to give a confession that its decision in Lightning was wrong. The vote in this new case, called Dunn v. Smith, is a little uncertain – the Court did not issue a majority opinion and two ministers did not indicate how they voted – but the result of Smith is that all states that still have the death penalty should allow these prisoners to have a spiritual counselor present during the execution, regardless of the religion of the prisoner. (Both Dunn cases came to the Court on the “summary”, a bouillabaisse of emergency motions and other matters that do not receive full instruction and oral argument before the judges decide a case.)
Four judges – Elena Kagan, Stephen Breyer, Sonia Sotomayor and Amy Coney Barrett – joined an opinion by Kagan suggesting that all those sentenced to death have the right to have their spiritual counselor present in his execution, as long as the counselor goes through security screening to make sure they do not interfere with prison operations. As Kagan notes, the Federal Law on the Use of Religious Lands and Institutionalized Persons (RLUIPA) “provides ‘comprehensive protection’ for the religious freedom of prisoners”.
Notably, Barrett’s decision to join Kagan’s opinion marks the second time in a week that the Trump-appointed conservative has broken with the right-most Supreme Court faction in a religious freedom case.
Judge Clarence Thomas disagreed with the Court’s decision in Smith without explaining why he would have allowed the execution to continue without the presence of a pastor. Court President John Roberts and Judge Brett Kavanaugh also disagreed. However, in an opinion united by Roberts, Kavanaugh writes that “it seems apparent that States that wish to avoid months or years of litigation delays because of this RLUIPA issue must find a way to allow spiritual counselors to enter the execution room like other States and the Federal Government did ”.
Therefore, although Roberts and Kavanaugh do not agree with the Court’s decision to Smith, they seem to admit that states must comply with requests to allow an appropriate member of the clergy to console the people being executed.
Ministers Samuel Alito and Neil Gorsuch remain, who did not reveal how they voted Smith. Both judges are fervent supporters of the death penalty. But at least one of them must have cast the fifth vote to allow Willie Smith, the prisoner in the Smith case, have a pastor present in his execution.
The path of Lightning for Smith, briefly explained
Lightning it was a frustrating decision, not only because it allowed a very clear case of religious discrimination, but because most of the judges did not understand the facts of the case or, worse, gave a pretextual reason for their decision.
The Republican majority of the Court said that it had spoken out against Domineque Ray, the prisoner in Lightning, because he waited a long time to seek relief. But, as Kagan explained in his dissent, this claim that Ray waited until the last minute to seek relief was simply not true. Ray opened his case seeking the presence of his imam in his execution just five days after the prison director denied the request.
After Lightning triggered a public reaction, the Court appeared to take a step back in Murphy v. Collier (2019), a case involving a Buddhist prisoner on death row who, like Ray, sought to have a spiritual advisor present in his execution. At the Murphy, the Court issued a temporary order preventing the state from executing Patrick Henry Murphy “unless the state allows Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the state’s choice to accompany Murphy to the execution chamber during the execution.”
Although the entire Court has not explained its reasoning in MurphyJustice Kavanaugh wrote a separate competing opinion arguing that states are free to deny spiritual advice to people who are being executed, as long as they do not discriminate between religions.
“Relevant Texas policy allows a Christian or Muslim prisoner to have a Christian or Muslim religious advisor employed by the state present in the execution room or in the adjacent exhibition hall, ”explained Kavanaugh, but Buddhist prisoners could only have their counselor present in the exhibition hall. The state could cure this “denominational discrimination,” argued Kavanaugh, by allowing people of all religions to have a spiritual advisor present in the execution room or by allowing nobody have a spiritual advisor present in that room.
In the wake of Kavanaugh’s opinion in Murphy, Alabama decided to implement Kavanaugh’s second option. He abolished his previous policy, which allowed only Christians to have a spiritual counselor present during his execution, and implemented a new policy prohibiting all clergy from entering the execution room.
One consequence of this new policy is that Willie Smith, the prisoner in Smith case, he would be executed without the presence of his Christian pastor.
The result of the Court’s decision in Smithhowever, it is that Smith will have a pastor present in his execution and that, in the future, all executed people in the United States who want a spiritual advisor present in his executions are likely to have him.
Kavanaugh’s view – that states are free to deny spiritual advice to people who are being executed, as long as they treat all religions equally – has not won Smith. And it appears that there are now five votes in the Supreme Court to ensure that people on death row have an appropriate member of the clergy present in their final moments.