At a bare minimum, the separation of church and state means that government must treat all religions (and equivalent secular beliefs) equally. A government policy that extends special treatment to members of one faith but denies it to others can’t survive.
Last night, the U.S. Supreme Court failed to acknowledge that basic principle in a case from Alabama concerning a Muslim inmate on death row.
Domineque Ray requested to have an imam with him at the time of his execution. It was in no way an unusual request. Death-row inmates are routinely given access to members of the clergy or spiritual counselors. Holeman Correctional Facility, the Alabama prison where Ray was incarcerated, allows its own Christian chaplain to accompany inmates facing execution into the room where the procedure takes place, but correctional officials denied that same access to Ray’s imam, arguing that would somehow present a security risk.
In effect, the prison’s policy is that a Christian inmate has the right to receive spiritual solace from a member of his faith – but members of other faith traditions or those who seek secular counselors can be denied that same right.
Ruling 5-4, the Supreme Court tried to rest its decision on a technicality. Ray, the majority asserted, had made a “last-minute” argument concerning religion – his lawyers filed the appeal Jan. 28 – and thus it could be ignored.
Justice Elena Kagan wasn’t persuaded. Joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, Kagan pointed out that allowing a Christian minister to administer last rites to an inmate while denying that same right to a non-Christian inmate “goes against the [First Amendment’s] core principle of denominational neutrality.”
“Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer,” Kagan wrote. “Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State's ability to perform the execution? The State doesn’t say.”
Just a few weeks ago, four of the high court’s conservatives – Justices Samuel A. Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – issued a statement in a school prayer case complaining that the court is not doing enough to protect religious freedom. Yet last night, the four had no problem bypassing Ray’s request. And three of them were in the majority in Masterpiece Cakeshop v. Colorado Civil Right Commission, a case from last year during which the high court ruled that the rights of a Christian baker were violated because, during a lengthy process to determine if the baker had violated state law by refusing to serve LGBTQ people, one low-level government official said a supposedly impolite thing about religion.
Apparently, a single, relatively mild statement of criticism is enough to violate a Christian’s religious freedom rights – but denying a man who was about to die access to the spiritual leader of his choice is not. And, strangely, a long list of anti-Muslim comments by President Donald Trump did not invalidate his Muslim ban, which a court majority was happy to uphold.
Also in a case from last year, the court went out of its way to grant relief to a Christian woman who claimed that police officers stopped her from praying while they searched her home. But last night, the court majority blithely dismissed Ray’s claim.
Inconsistencies like this can’t help but lead one to wonder if the high court’s conservative bloc is really concerned about what the Constitution commands – religious freedom for everyone – or if they’re simply bent on elevating the rights of Christians above all others.