The Supreme Court's stay of the Louisiana abortion law on Thursday night overshadowed another 5-4 order it issued roughly simultaneously. In Dunn v. Ray, the Court lifted a stay of execution that the Eleventh Circuit had granted. That court wanted time to consider inmate Ray's claim that Alabama's denial of his request for spiritual counseling from an imam during his execution violated the Establishment Clause, in light of the fact that Alabama "regularly allows a Christian chaplain to be present in the execution chamber." That quotation comes from the dissent of Justice Kagan, who was joined by Justices Ginsburg, Breyer, and Sotomayor.
The justices in the majority did not respond to the dissenters' objection on the merits. The entirety of their analysis consisted of the statement that they could take into account the "last-minute nature of an application to stay execution." Ray's request came a little more than two-and-a-half months after the execution date was set and ten days before the scheduled execution. However, it is hardly clear that Ray sandbagged, given that he was first informed of the relevant prison policy only five days before he filed his federal court complaint. In any event, as a consequence of the Court's order, Ray (who murdered three teenagers in the mid-1990s) was executed--without an imam by his side--about two hours after the Supreme Court ruling.
The SCOTUS necessarily concluded that the Eleventh Circuit abused its discretion in staying the execution. Is that right? Certainly the Supreme Court's explanation--that Ray waited too long--does not suffice by itself. Ten days may not be enough time to conduct full briefing and oral argument, but the prison had enough time to arrange for an imam to accompany Ray. Indeed, all the prison had to do was allow the imam who had been visiting with Ray in the holding cell adjacent to the execution chamber to be with him in the execution chamber itself. And anyway, delay is only supposed to be one factor in the equitable balance. Unless the Court also concluded that Ray's substantive argument was clearly meritless, it's hard to justify the conclusion that the Eleventh Circuit abused its discretion by staying the execution in order to consider Ray's challenge.
Did Ray's argument have merit? I think we can stipulate that the Alabama prison authorities acted terribly in denying his request, but not all bad acts are unlawful. Let's consider the two main grounds for concluding that Alabama acted unlawfully.
(1) Both the Eleventh Circuit and the SCOTUS dissenters thought that Ray had established a likelihood of success in an Establishment Clause challenge. Justice Kagan wrote:
Under [the Alabama prison] 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.That sounds persuasive, at least until one thinks about chaplains more broadly. Putting aside the one-off cases (like Marsh v. Chambers and Town of Greece v. Galloway) involving legislative prayer, in ordinary civilian life, the Establishment Clause bars the government from employing clergy to perform religious functions. However, things are different in environments in which the government has isolated people from society.
Accordingly, a not-very-controversial 1985 Second Circuit decision upheld federally funded military chaplains against an Establishment Clause challenge. Likewise, a 2013 Ninth Circuit case rejected an Establishment Clause claim by a Wiccan inmate in a California prison who alleged that the provision of full-time chaplains of other faiths but not Wiccans was unlawful. Those cases are typical in allowing the government to employ chaplains of some religions and sects but not all religions and sects.
And that is what Alabama appears to have done. It has a Christian minister on staff as an official chaplain, and clergy of other denominations and faiths can and do come to the prison to minister to inmates of those other faiths. Just as the Wiccan lost his challenge to the California distinction between on-staff clergy of other faiths and outside Wiccan clergy, so Muslim inmates in Alabama could not successfully challenge the general approach to hiring a chaplain -- at least not without some indication of subjective religious animus.
If it's not a violation of religious equality for a prison to provide what amounts to preferential access to clergy for (certain) Christians in general, is it a violation when that preferential access extends to the execution chamber? Maybe not. Think about the Wiccan. He could (and did) complain that he had less access to his Wiccan clergy than people of other faiths had to on-staff chaplains. But he lost his Establishment Clause case. So why does less access in the execution chamber lead to a different answer?
(2) I'll come back to that question in a moment, but first, consider the possibility that Ray should have prevailed under a different test--the one set out in the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Mimicking the Religious Freedom Act (RFRA) but in the context of prisons (and some other contexts), RLUIPA disallows even religion-neutral policies that substantially burden the exercise of religion, unless such policies are shown to be the least restrictive means of advancing a compelling interest.
The district court judge rejected Ray's RLUIPA claim on the ground that he had not shown a sufficient burden on his religion. The Eleventh Circuit criticized the district court's treatment of the RLUIPA claim but did not ultimately reach it, having found a sufficient likelihood that Ray would succeed on his Establishment Clause claim. I don't have a fully informed view about whether exclusion of an imam from the execution chamber should count as a substantial burden under RLUIPA. I think the Eleventh Circuit did not abuse its discretion in wanting to hold a hearing on that and other questions, which is why I think the SCOTUS erred in lifting the stay. But the question whether the particular burden was substantial is potentially more fact-intensive than the Establishment Clause question.
Accordingly, I'm inclined to think that the Eleventh Circuit and the SCOTUS dissenters were right to focus on the Establishment Clause and religious discrimination after all. There are sound practical reasons why, notwithstanding the general prohibition on sectarianism, the government can hire chaplains for particular institutions without thereby obligating itself to hire chaplains of every possible faith and sect for each institution. That's why the Wiccan properly lost in the Ninth Circuit. Likewise, the Alabama prison can have a Protestant minister on payroll even if it doesn't also have a priest, a rabbi, and an imam on payroll.
But that general allowance should not extend to every possible preference for the minister. The prison needs to have some special reason--needs to satisfy strict scrutiny in order--to keep the imam out of the execution chamber when it would allow the minister in. Alabama did not have any such special reason, and neither the district court judge nor the SCOTUS majority who ruled in the prison's favor appeared to demand one.
That's why the Alabama prison authorities did not only act cruelly; they also acted illegally. That a majority of justices on the Supreme Court could not see that--or, what's worse, that they did see it but nonetheless thought a brief delay in execution even if due to dilatory conduct by Ray's lawyers outweighed the unjust and unconstitutional religious discrimination--is a further injustice.