Ted Olsen: Religious Freedom Isn’t Just for Christians

Had Domineque Ray been a Christian, he’d have been executed with a chaplain kneeling by his side, praying with him. But Domineque Ray was not a Christian, and he did not want a Christian chaplain. He wanted his imam present in the execution chamber instead.

At a January 23 meeting, the warden at the Holman Correctional Facility in Atmore, Alabama, refused Ray’s request. Ray’s imam, who has ministered at Holman for years, would have to watch the execution with the media. It’s policy, the warden explained. Ray asked to see the policy, since it was news to him. The warden refused. It turns out the policy wasn’t actually written down.

That was Wednesday. By Monday, Ray filed a complaint, saying the policy violated both the Religious Land Use and Institutionalized Persons Act and the First Amendment. The district court rejected it and said his execution should go forward: “Ray has had ample opportunity in the past twelve years to seek a religious exemption.” But the appeals court said Ray had a “powerful Establishment Clause claim. … Alabama appears to have set up precisely the sort of denominational preference that the Framers of the First Amendment forbade.” The claim might have been made at the last minute, the appeals court said, but that doesn’t mean Ray delayed.

It was a compelling argument. But on February 7 the Supreme Court issued a short 5–4 decision, saying Ray’s complaint had come too close to his execution date. That evening, he was executed.

Court observers, First Amendment scholars, and religious liberty advocates across the ideological spectrum were flummoxed and flabbergasted.

“In my 30 years of writing about religious freedom, I can’t recall a case as outrageous,” wrote Yale law professor Stephen L. Carter, a former clerk to Justice Thurgood Marshall (and former CT columnist). “To deny [a condemned] person his chosen spiritual counselor at such a moment is the ultimate cruel triumph of our current wave of secularization.”

Likewise, National Review’s David French wrote, “The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.”

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Source: Christianity Today