The Constitution in the death chamber: Should the condemned have a right to clergy?
Alabama sentenced to death a man who was convicted of killing, robbing and raping a 15-year-old girl. The prisoner, a practicing Muslim, was allowed to have an imam provide spiritual counseling and support. This was his right, according to the law. But the state of Alabama refused to grant his request to have a Muslim clergy person accompany him inside the execution chamber.
The prison authorities said an imam could sit with Domineque Ray before he was marched out for the execution. The imam would be allowed to observe him from a viewing room during the process.
If the prisoner had been a Christian, the prison would allow Christian chaplains who worked at the prison to stand by the prisoner’s side. But claiming security concerns, the prison refused the request for the Muslim chaplain to provide comfort and guidance inside the execution chamber.
The matter was brought to the federal appeals court, which concluded there was “a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause,” and stayed the execution so it could consider the matter. Instead, the case was fast-tracked to the U.S. Supreme Court.
The high court, in a 5-4 decision, refused the prisoner’s request to have a Muslim clergy person to stand by him in his last hour of life. The majority opinion said the prisoner waited too long to file a request for a chaplain, so the court had no obligation to force Alabama to delay the execution any longer.
Justice Elena Kagan, writing for the minority, decried the rush to judgment. The case of Ray v. Dunn made a powerful claim that the prisoner’s religious rights would be violated “the moment the state puts him to death,” she wrote.
“The 11th Circuit wanted to hear that claim in full. Instead, this court short-circuits that ordinary process ... just so the state can meet its preferred execution date.”
Is this a case of violating a person’s religious liberty, the right to die with his clergy beside him? It appears that in Alabama, had he been Christian, he would have had full access to clergy at his final moment of life. What if the prisoner been Hindu, Jewish or Sikh? No one, not even his attorneys, were arguing ways to avoid the death penalty. It was only about having a clergy person to simply stand beside the prisoner.
Quite simply, the establishment clause of the Constitution means that it is unconstitutional for the government to make any law respecting an establishment religion or taking actions that favor one religion over another. That is the crux of the Muslim prisoner’s request: to have the same rights as a Christian prisoner.
Prison chaplains provide a valuable service inside the prison. They can perform many functions, pastoral care and teaching their religious tradition among them. Years ago I taught a course in a medium security prison in Danville, Illinois. What I saw there, and the inmates I met, led me to realize that this kind of religious work was to be respected. It was sacred. Even though I could never fully understand what it’s like to pastor full time each day in this environment, let alone to death row prisoners, I recognize the special gifts a person needs to work with prisoners facing execution.
Society does not carry much sympathy for people convicted and sentenced to death for committing murder. The families of the victims understandably feel vindicated, and possibly may be at peace, when death row inmates such as Ray have paid the ultimate price for their crimes. Yet should death row prisoners be deprived of their constitutional rights to receive and have equal access to religious support?
The Ten Commandments say “thou shall not murder.” In other sections of the Torah where criminal law is discussed, there are many examples of crimes where capital punishment is decreed.
The core moral issue is whether our society should provide a modicum of dignity, attending to the religious needs of a person who has been sentenced to death, when we terminate a human life. Alabama and the Supreme Court said no.
What would God say?