Alabama asked judges to overturn a lower court decision and allow the execution to continue without the councilor’s presence in the chamber.
The court denied the request.
The exact count of the votes was unclear, although Judge Elena Kagan – accompanied by Judges Amy Coney Barrett, Stephen Breyer and Sonia Sotomayor – wrote to explain why they voted to block execution.
Kagan said the 11th Circuit Court of Appeals was “right to prevent Alabama from executing Smith without her pastor by her side” and she dismissed the security concerns raised by the Alabama Department of Corrections.
“The law grants Smith the right to practice his faith without unnecessary interference, even at the time when the state condemns him to death,” wrote Kagan.
She said Alabama could take “any number of steps” to make sure that a member of the clergy will act responsibly during an execution, including a background check on the minister.
Court President John Roberts and Brett Kavanaugh explained why they complied with Alabama’s request, citing concerns over state security.
Judge Clarence Thomas did not adhere to that opinion, but he simply noted that he would also have complied with Alabama’s request.
Judge Samuel Alito and Neil Gorsuch were silent on the vote.
Smith is on death row for the 1991 murder of Sharma Ruth Johnson, 22, who he shot in the head while she vowed not to reveal her crimes, according to court documents.
The issue has bitterly divided the court in the past
It is the fourth time in two years that judges have been asked to consider the religious freedom demands of inmates who seek to have their spiritual counselors present for their executions – and the issue has bitterly divided judges in the past.
In Smith’s case, the Alabama Department of Corrections told judges in court documents that its policy is necessary to “preserve the safety and solemnity” of the execution.
The department does not allow any members of the public to enter the execution chamber, but it does allow an external spiritual counselor to visit the prisoner on the day of execution in the prisoner’s cell and just before the prisoner enters the execution chamber. The spiritual advisor can witness the execution in the adjacent exhibition hall.
Smith’s lawyers cited a federal law that prohibits the government from imposing a substantial burden on a prisoner’s religious exercise, unless the government demonstrates that it is the least restrictive means of promoting a convincing government interest.
Smith’s lawyers argued that Alabama did not consider less restrictive alternatives and noted that in recent federal executions the government allowed a spiritual adviser chosen by the prisoner to be in the chamber.
In 2019, Domineque Ray, a Muslim devotee from Alabama, asked that his spiritual advisor be present, but at the time ADOC did not employ any Muslim chaplain. The Federal Supreme Court allowed the execution to continue, citing concerns about the timing of the prisoner’s records.
Judge Kagan, along with the other three liberals in the court, called the decision “deeply wrong” and said Ray had made a “powerful claim” that his religious rights would be violated the moment the state sentenced him to death.
Six weeks later, a Buddhist prisoner in Texas sought similar relief. The court granted his request. At the time, Judge Brett Kavanaugh wrote his own opinion, joined by no other judge. He noted that while Texas allowed Christian or Muslim prisoners to have a Christian or Muslim religious advisor employed by the state, there was no Buddhist advisor on the team.
“As this Court has repeatedly held, government discrimination against religion – in particular, discrimination against religious people, religious organizations and religious discourse – violates the Constitution,” wrote Kavanaugh.
He suggested a way forward for the states. They can allow all inmates to have a religious advisor for their religion in the execution room, or they can allow inmates to have a religious advisor only in the exhibition room, not in the execution room.
After that order, the Alabama Department of Corrections changed its protocols. Currently, only Texas and Alabama have explicit bans on advisers in the current chamber.
Eric Rassbach of the conservative Becket Fund for Religious Freedom praised the court’s decision in Willie Smith’s case.
“If Willie Smith has to leave this world, he shouldn’t have to leave it alone,” said Rassbach. “Prisoners should be allowed to make peace with their Creator in their final moments,” he said.