In Alabama, the law requires a Christian clergyman be there to deliver the last rites when someone is executed by the state. But in a case last week challenging that law by a man who is Muslim and wanted his imam with him instead, the five conservatives on the Supreme Court let him die without even bothering to rule on the merits. My friend Nick Little, legal director for CFI, is rightly outraged:
In Dunn, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Chief Justice Roberts allowed the execution of a man in Alabama to proceed on schedule. That man, a Muslim, is now dead. He was strapped to a gurney, and injected with poisons which stopped his heart. His legal claim, though, was not a claim of innocence. Ray was convicted of a heinous crime, the rape and murder of a fifteen year old girl, Tiffany Harville. Whether you agree with the use of the death penalty or not (and I don’t), Dunn’s crime was horrific, and worthy of severe punishment. But Dunn was not requesting the overturning of his sentence. Instead, he was requesting the right to have his spiritual advisor present with him in the last moments of his life.
This basic right to a moment of solace in face of death is one granted by Alabama law, but apparently now one granted to Christians alone. And in this decision, 5 Christian men on the Supreme Court decided that this right did not extend to Muslims. It’s no surprise that the three members of the Court who are from minority religions, Justices Ginsburg, Kagan, and Breyer, all Jewish, found the decision outrageous. While the right wing majority based their decision on the “last minute” nature of Dunn’s request, this is a transparently false attempt at justification. Dunn’s request for the presence of an imam was denied on January 23. He filed his challenge on January 28, a mere 5 days later.
“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. 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. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.
The counter-argument is so blatantly pretextual that it clearly hides a desire to maintain Christian cultural and legal hegemony, sending a message to all non-Christians that they are second-class citizens at best, being tolerated by those who control the country. Jefferson and Madison are rolling in their graves.