Two years ago, in Dunn v. Ray (2019), the Supreme Court rejected a request by a Muslim inmate on death row to have an imam provide him with spiritual advice and comfort during his final moments of life. The decision was 5-4 along ideological lines, but it triggered a widespread backlash across the political spectrum.
As Justice Elena Kagan noted in her dissenting opinion in Ray, the state of Alabama permitted Christian inmates to have a spiritual adviser present, but not Muslims, so the Court’s decision in Ray permitted unconstitutional discrimination among differing faiths. The day after the decision in Ray, the conservative National Review’s David French labeled it a “grave violation of the First Amendment.”
On Thursday night, the Court handed down the closest thing it will probably ever give to a confession that its decision in Ray was wrong. The vote in this new case, called Dunn v. Smith, is a bit uncertain — the Court did not release a majority opinion, and two justices did not indicate how they voted — but the upshot of Smith is that all states that still have a death penalty should allow those inmates to have a spiritual adviser present during their execution, regardless of the inmate’s faith. (Both Dunn cases came to the Court on the “shadow docket,” a bouillabaisse of emergency motions and other matters that do not receive full briefing and oral argument before the justices decide a case.)
Four justices — Elena Kagan, Stephen Breyer, Sonia Sotomayor, and Amy Coney Barrett — joined an opinion by Kagan suggesting that all death row inmates have a right to have their spiritual adviser present at their execution, provided that the adviser passes a security screening to ensure they won’t interfere with the prison’s operations. As Kagan’s opinion notes, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) “provides ‘expansive protection’ for prisoners’ religious liberty.”
Notably, Barrett’s decision to join Kagan’s opinion marks the second time in a week that the conservative Trump appointee broke with the rightmost faction of the Supreme Court in a religious liberty case.
Justice Clarence Thomas dissented from the Court’s decision in Smith without explaining why he would have allowed the execution to move forward without a pastor present. Chief Justice John Roberts and Justice Brett Kavanaugh also dissented. Yet, in an opinion joined by Roberts, Kavanaugh writes that “it seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done.”
So, while Roberts and Kavanaugh do not agree with the Court’s decision in Smith, they appear to concede that states should comply with requests to allow an appropriate member of the clergy to comfort people being executed.
That leaves Justices Samuel Alito and Neil Gorsuch, who did not reveal how they voted in Smith. Both justices are fervent supporters of the death penalty. But at least one of them must have provided the fifth vote to allow Willie Smith, the inmate in the Smith case, to have a pastor present at his execution.
Ray was a frustrating decision, not just because it permitted a very clear-cut case of religious discrimination but because the justices in the majority either did not understand the facts of the case or, worse, gave a pretextual reason for their decision.
The Court’s Republican majority claimed that it ruled against Domineque Ray, the inmate in Ray, because he waited too long to seek relief. But, as Kagan explained in her dissent, this claim that Ray waited until the last minute to seek relief simply wasn’t true. Ray filed his lawsuit seeking to have his imam present at his execution just five days after the prison warden denied that request.
After Ray triggered a public backlash, the Court appeared to take a step back from it in Murphy v. Collier (2019), a case involving a Buddhist death row inmate who, like Ray, sought to have a spiritual adviser present at his execution. In Murphy, the Court handed down a temporary order preventing the state from executing Patrick Henry Murphy “unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”
While the full Court did not explain its reasoning in Murphy, Justice Kavanaugh wrote a separate concurring opinion arguing that states are free to deny spiritual counsel to people being executed, so long as they don’t discriminate among faiths.
“The relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room,” Kavanaugh explained, but Buddhist inmates could only have their adviser present in the viewing room. The state could cure this “denominational discrimination,” Kavanaugh argued, either by allowing people of all faiths to have a spiritual adviser present in the execution room or by allowing no one to have a spiritual adviser present in that room.
In the wake of Kavanaugh’s opinion in Murphy, Alabama decided to implement Kavanaugh’s second option. It abolished its previous policy, which allowed only Christians to have a spiritual adviser present during their execution, and implemented a new policy barring all clergy from the execution room.
One consequence of this new policy is that Willie Smith, the inmate in the Smith case, was going to be executed without his Christian pastor present.
The upshot of the Court’s decision in Smith, however, is that Smith will have a pastor present at his execution, and that, moving forward, all people who are executed in the United States who want a spiritual adviser present at their executions are likely to have one.
Kavanaugh’s view — that states are free to deny spiritual counsel to people who are being executed, so long as they treat all religions equally — did not carry the day in Smith. And it appears there are now five votes on the Supreme Court to ensure that people on death row have a member of the appropriate clergy present in their final moments.