The Religious-Liberty Claim the Justices Didn’t Want to Hear

If the free-exercise clause allows you not to bake and sell a cake, maybe it should also allow you to have an imam at your own execution.

Jonathan Ernst / Reuters

On Thursday night, the Supreme Court, by a vote of 5–4, allowed the Alabama state prison in Atmore to execute Domineque Ray, a convert to Islam, by lethal injection for the 1995 rape and murder of 15-year-old Tiffany Harville, and the murders of two brothers. He died alone. He was denied his request to have his imam, Yusef Maisonet, by his side.

Reading the majority’s decision, I kept asking myself, How would these five justices have responded if all the facts were the same but Ray were a Christian and the imam were a priest? Would they have decided to reverse the ruling of the United States Court of Appeals for the Eleventh Circuit in Atlanta that stayed the execution? That appellate court stated, “It looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.” That’s the clause that prohibits the government from establishing an official religion and unduly favoring one religion over another. The Eleventh Circuit highlighted that Alabama allows Christian clerics in the execution room for all Christian inmates but refuses “to provide the same benefit” to a devout Muslim such as Ray, and all other non-Christians.

The conservative majority wrote little in granting Alabama’s application to vacate the stay, but it was apparently convinced by the state’s argument that Ray had waited too long to seek relief.

In her dissent, Justice Elena Kagan, joined by the Court’s liberal justices, called the decision “profoundly wrong.” She wrote, “The clearest command of the Establishment clause” is “that one religious denomination cannot be officially preferred over another.” Under Alabama’s policy, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” she wrote. “But if an inmate practices a different religion—whether Islam, Judaism or any other—he may not die with a minister of his own faith by his side.”

Kagan also blasted the state’s “security” argument, writing, “The State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal.” Kagan ended her dissent by saying that despite Ray’s “powerful claim that his religious rights will be violated,” the Court refused to hear that claim in full “just so the State can meet its preferred execution date.”

Instead of learning from its mistake and expanding religious freedoms for all prisoners, Alabama, according to court filings, will now apparently bar all spiritual advisers from the execution chamber just so it doesn’t run afoul of the establishment clause.

Constitutionally protected freedoms and concerns for religious liberties now frequently take a back seat to specious security concerns and fearmongering. We witnessed such hypocritical intellectual gymnastics last summer with the Supreme Court’s 5–4 decision upholding President Donald Trump’s travel ban. The conservative majority held that the executive order was facially neutral and nondiscriminatory, willfully ignoring Trump’s history of anti-Muslim rhetoric, including his proclamation that “I think Islam hates us” and his call for a “total and complete shutdown of the entry of Muslims to the United States until our country’s representatives can figure out what is going on.”

Instead of the conservative justices joining a decision that prioritized the government’s religious neutrality, it was left to Justice Sonia Sotomayor to make that case in her dissent. However, in what was considered a major win by conservative Christian groups, the Supreme Court ruled in favor of a Colorado baker who refused to bake a cake for gay clients. Justice Anthony Kennedy, writing for the majority, said the Civil Rights Commission’s ruling against the Christian baker was infected with religious animus and “inappropriate and dismissive comments.”

If only the rest of us were lucky enough to elicit such sympathy for inappropriate comments, including those directly tweeted and uttered by the president. If the free-exercise clause allows you not to bake and sell a cake, maybe it should also allow you to have an imam at your own execution.

Whatever the legal merits of these individual decisions, the lasting impression they create for Americans is undeniable: Islam is a faith tradition that is not only inferior to Christianity but also inherently hostile to America. We practicing Muslims are treated as security threats by virtue of our existence and are left to conclude that we are not co-equal citizens of this country—even though we’ve been here since the beginning, when enslaved people were brought to this country. We are told to have faith in our legal institutions and promote the narrative of America as the land of the free, but decisions like this make me question whether Muslims, and other religious minorities, can look to the courts for equal and fair treatment.

Assurances that the Supreme Court remains religiously neutral with its new conservative majority ring hollow to me. Perhaps the Trump administration and the Supreme Court justices would serve this nation better if they went back and reread Thomas Jefferson’s Virginia Statute of Religious Freedom, which became the foundation for the religious-freedom protections later enshrined in the Constitution. He went out of his way to mention Muslims among those protected by his legislation, which passed in 1786. It would be best if the Court’s future decisions took greater pains to reflect this generous American spirit.

These recent decisions remind me how easily the highest court in the land can be a willing instrument of white supremacy and bigotry. In Dred Scott, the Court decided that a black person could never be a citizen and an enslaved person was not entitled to his freedom despite living in a free state. In Korematsu, the Court ruled that Executive Order 9066, which excluded Japanese Americans from the West Coast, was constitutional. During World War II, these communities were ordered into internment camps despite their citizenship. Then, as now, the justices allowed national-security concerns to outweigh the rights of certain citizens.

With Justices Brett Kavanaugh and Neil Gorsuch now on the bench, I worry that this Court will stretch its mental and moral faculties to expand religious liberties as a shield for conservative Christians and potentially as a weapon against every other religious community. Kavanaugh has a history of using the Establishment Clause to give fellow Christians religious exemptions. When he sat on the Court of Appeals for the D.C. Circuit, Kavanaugh wrote a dissent that relied on the Supreme Court’s opinion in Burwell v. Hobby Lobby, which allowed businesses to avoid providing contraception coverage in their health-care plans if providing it would violate their religious convictions.

Gorsuch wrote a concurring opinion in 2017’s Trinity Lutheran case, in which the Court allowed the state of Missouri to give a church a grant to resurface playgrounds with plastic made of recycled tires. I wonder whether such an expansive, generous view of the Establishment Clause would accommodate a mosque or a synagogue or a gurdwara.

The Trump administration declared January 16, 2019, to be “Religious Freedom Day,” pledging to take action to “protect religious liberty and to seek justice against those who seek to abridge it.” This follows the creation, last year, of the Justice Department’s Religious Liberty Task Force, to “defend the rights of people of faith.” But is it all “people of faith,” or just their people of their faith?

It is fitting that this initiative was announced by then–Attorney General Jeff Sessions, a son of Alabama. He said that American culture has become “less hospitable to people of faith” and warned that a “dangerous movement, undetected by many but real, is now challenging and eroding our great tradition of religious freedom.”

From the perspective of those of us who aren’t Christian, he might as well have been talking about his own administration—and about the Supreme Court.