Supreme Court Deals Blow to Religious Freedom

Supreme Court Deals Blow to Religious Freedom February 8, 2019

The Supreme Court weighed in on a recent religious of freedom matter that received little national attention. But the results should be a concern for religious freedom advocates.

Alabama had scheduled the execution of Domineque Ray. The state often allows the presence of Christian ministers. Ray requested a Muslim imam but was denied. In a surprise 5-4 ruling, the Supreme Court ruled against Domineque Ray and concluded that the execution could move forward without an imam present.

Because of the nature of the case, no majority opinion needed to be written. But in its one line reasoning, the court explained that Ray waited too long to appeal.

This reasoning, however, feels suspect. Courts have substantial leeway when deciding if something was brought forth in a timely manner. Ordinarily the more important the case or legal question, the less important secondary issues like “timely manner” are. And perhaps most important Ray appealed as soon as he learned about the prison’s ruling that he would not be allowed to have an imam present.

Justice Elena Kagan, who is quickly becoming an unforeseen defender of religious freedom wrote the dissent. She explained that to discriminate on the basis of religion, the state must have a policy that is narrowly tailored to meet a compelling government interest.

So, for example, if the state were to require a member of the clergy to pledge to not interfere with the execution to be present and no Catholic priests in the state would agree because of their opposition to capital punishment, the state could reasonably make the case that a Catholic could not have a priest present.

But that’s simply not the case here.

So why should you care?

Domineque Ray was convicted of three murders, and the rape of a fifteen-year-old girl. His crimes were truly horrific. And perhaps you believe he deserved no comfort or companionship at the time of his execution.

What is important here is that the state, the government, treated different religions differently. Christian murderers with no less grizzly records routinely received the presence of clergy. The reason Ray didn’t was not because of his crimes but because of his faith.

Five Supreme Court justices felt that a timeline they made up just for the occasion was more important than treating people of different faiths equally. This should concern individuals of faith.

Prisons are government actors just like schools, law enforcement, social security offices, etc. If prisons can discriminate against you because of your faith, such as in this case, there are no substantial legal principles preventing that same reasoning elsewhere.

Now for some limitations.

Because there was no majority ruling, there is no precedent set from this case that must be applied in the future. So the repercussions are minimal. And strictly speaking, the court did not rule against Ray’s religious question, they simply ruled that the question was less important than the timeliness.

And perhaps the court’s conservative justices happen to be united in being more sensitive on questions of timeliness, though I can find no data one way or another on that question.

The Supreme Court has been very consistent in standing up for religious freedom over the past decade. Perhaps this is simply an outlier. But for those who are of minority faiths, this ruling should be concerning, and something to keep an eye on.

Browse Our Archives

Follow Us!

What Are Your Thoughts?leave a comment
  • Keith Cunningham

    Hey – how do I find who voted which way?

    I have also learned that his Imam had been with him for the prior 2 days, and watched just outside the chamber. What seems to be the overriding cause is only employees are allowed in the chamber, and his Imam wasn’t an employee. I don’t think that rule should have prevented his presence though. This is something easily remedied, but now we are here.

    If someone had a particular Christian pastor they wanted in the chamber, and that person wasn’t an employee, would they also be denied? I’m curious about the history here of how others have been treated. In other words, is this only a thing because it is a non-christian that is bringing it up, or has it happen to others, who weren’t employees.

  • Christopher D. Cunningham

    The prison doesn’t have any Muslim chaplains. The state suggested in their argument that it was in the state’s interest to not have non-employees present.

    The effect of that policy is to have no access for anyone of any other faiths. In order to treat people of different faiths differently, a state needs to have a narrowly tailored policy to reach a compelling government interest.

    This is clearly not that. If the compelling interest is safety, there’d be many policies more narrow that would have allowed the imam to be present, such as those Kagan suggests that he could have sworn on penalty of contempt not to interfere or to have received any necessary trainings.

    Part of what worries me is that the standard narrowly tailored for a compelling interest is actually kind of controversial. Instead some on the court believe that as long as a law is religiously neutral it’s legal. So reading Kagan include that standard in dissent is very encouraging. Though it worries me that some of the conservatives may be following Scalia down the neutral standard road. Hopefully this was really just a timing thing, and not a harbinger of things to come.

    As for how I know who voted which way, often in these cases you don’t know the vote. But in this case there was a dissent signed by four justices. So you can deduce who the five votes in favor were. But the list of dissenters is just at the beginning of the dissent, I linked to it.

  • Keith Cunningham

    Thank you for this additional insight. I reviewed the link, and then read the Alabama Code. It states

    (a) The following persons may be present at an execution and none other:

    (4) The spiritual advisor of the condemned.

    It is crystal clear here that this was not afforded to Mr Ray, so the State of Alabama broke its own law.

    Additionally, the State’s contention that he didn’t act in a timely manner is not the case because he did in fact act within the law, as soon as he was aware, and was also not provided information about his rights.

    So – I’m with you hoping this is an outlier, but to Mr Ray and his family, that is little solace. This is not taking away from the justice that was ultimately applied, and the pain and sorrow he caused those he harmed, ad their families. The State has to do these things properly, so that there is no doubt it did what it had to, without prejudice and malice.

    Follow the link and read Alabama Law

    Thanks again

  • a r tompkins

    we just need to outlaw executions. as much as our primitive instincts may compel us to act out in this way, we, that is society, become the murderer in the case of state-sponsored execution, and it will never fix anything. and of course it can’t help but to be applied to an innocent person, or disproportionately applied to those who can’t afford better legal representation, etc. it’s just wrong.

  • HematitePersuasion


    I am certain that, had Alabama denied a Christian minister, the Court would have acted. And there was a time when a Catholic would not have been considered Christian.

  • Elzbieta Kraszewski

    The US is fairly unique in the Western world (in a bad way, as it often is) for having capital punishment at all. Inmates have been found not guilty on death row, and it is almost certain that the State has executed innocent people. Add in the fact that poor and minority prisoners are much more likely to receive the death penalty for the same crimes as their wealthier, white counterparts, and you have a recipe for severe abuse and overreach by the State.

    Capital punishment deters no one, certainly rehabilitates no one, is incredibly expensive for the tax payer, and is subject to prejudice and misuse. Simply put, it is the murder of an individual by the State and has no place in a civilised society.

  • Andrew

    The assumption made is that there is a difference between Catholic/Christian and Islam so great as to suggest they have a different religion. Do the two religions (faiths) serve different gods?

  • Daryl Deniz

    I concur with everything you wrote. Well done. My only quibble is that “murder” is a legal term defined as the unlawful killing of a human being by another. It shouldn’t be blithely tossed out in argument, as the anti-abortion crowd is so wont to do.

  • Kiwi57

    They are unquestionably different religions. But no, they don’t serve different gods. They both serve the same God, while holding significantly different beliefs about Him.

  • Andrew

    In light of that answer, that they serve the same God, the court’s action and decision is acceptable.

  • Kiwi57

    How on earth do you figure that?

    You do not want to have civil courts ruling on theological questions. Trust me on that.

  • Andrew

    A properly informed court can deliver just decisions.

  • Kiwi57

    The justice or otherwise of a court decision isn’t based upon theology. It’s based upon the facts of the case and the applicable law.

  • Andrew

    The question before the court in this matter, as I can see, wasn’t one
    of theology either. Not sure why you keep mentioning that.

  • Kiwi57

    Because you were the one who said that the court’s decision was correct, because of a theological consideration.

    I’m aware that the actual decision was based upon a procedural question rather than on the merits of the case.

  • Andrew

    I did not mention anything about theology.

  • Kiwi57

    Andrew (previously): “Do the two religions (faiths) serve different gods?”

    Kiwi: “They both serve the same God, while holding significantly different beliefs about Him.”

    Andrew: “In light of that answer, that they serve the same God, the court’s action and decision is acceptable.”

    The question of which God they serve is a question of theology.

  • Andrew

    It is your interpretation that what I wrote is a question of theology. That doesn’t make it so. I also did pose the question of which God.

  • Kiwi57

    Sigh. That is exactly, and only, a question of theology. It is in no sense a question of law, and is beyond the jurisdiction of any civil court.

  • Andrew

    It is a question of theology…. to you. For me it is not.

  • Kiwi57


    This is not a matter of “owning your truth,” Andrew. It’s a simple matter of definitions of words.

    Theology: “the study of the nature of God and religious belief.”

    Civil courts, in any jurisdiction that claims to be religously neutral, cannot base their decisions upon doctrinal considerations. The question of who someone worships is a question of theology and nothing else. It’s not about what it means “to you” or “to me,” it’s just what it is.


  • Andrew

    I have no need to study the nature of God or religious belief… which you say is theology. Neither do the courts… unless there are multiple gods with a variety of service to them. When there is one it is not complicated… and you seemed in agreement that there is one. Thus as one it is possible for this one to be known by the courts and for them to act in accordance with it. From a biblical perspective, what is often seen missing and commented in the text is justice in accordance with His will. Courts are set up to act for justice. Perhaps then what they are missing is rendering decisions based upon His will instead of their own.

  • Kiwi57

    “Thus as one it is possible for this one to be known by the courts and for them to act in accordance with it.”

    Not if you support the separation of church and state. Civil courts don’t rule on doctrinal questions, and they don’t make rulings based upon doctrinal assertions.

    “Perhaps then what they are missing is rendering decisions based upon His will instead of their own.”

    They are obligated to render their decisions based upon the law.

  • Andrew

    One God means not two, means it is something that can be known. In knowledge there is no questions or assertions…. there is just is. You seem to be argumentative perhaps thinking that when I speak of God its something open to debate, doctrines, concepts or ideas because that is how you see it.

  • The Last Danite

    Which is why capital punishment should be reserved for the most heinous crimes with undeniable evidence. There is zero moral argument against this.

  • The Last Danite

    Death penalty is not murder since murder is the killing of the innocent.

  • a r tompkins

    that’s not my point at all; I take it you don’t read well? regardless, really? where does it say that?

  • Elzbieta

    “Undeniable evidence”? Maybe some of these former Death Row inmates who were released might beg to differ:

    And even if we were certain that 1) the justice system never makes mistakes 2) Isn’t incredibly biased against the poor and people of color, and 3) is 100% comprised of ethical prosecutors who, if they do make a mistake and wrongly convict, are willing to take a hit to their conviction record (and possibly career) to admit the mistake, it would still be the murder of a citizen at the hands of the State. There is absolutely no social need to kill these people; if they are truly lifelong threats to society, they can be imprisoned indefinitely.

    I love how those who want “small government” are willing to grant the State the power to take the lives of citizens who pose no immediate threat. Unbelievable.

  • a r tompkins

    if the death penalty exists at all it will be applied erroneously. how do I aver this? because humans cannot help but to make mistakes, even at their most competent and honest. Beyond that, some are certainly driven by malicious or reckless intent. the death penalty doesn’t solve a thing.