By Daniel Mach
Last week, the Supreme Court permitted the state of Alabama to execute a Muslim man, Domineque Ray, without his religious advisor present. The court’s 5-4 decision reversed an emergency lower-court order that had temporarily delayed the execution because of grave concerns that Alabama’s practice of allowing only the state’s Christian chaplain to be present in the execution chamber unconstitutionally favored Christian prisoners.
Without even acknowledging those concerns, the court issued a brief, callous decision that is, as Justice Kagan noted in dissent, “profoundly wrong.” It is also the latest example of a disturbing trend of religious favoritism, in which minority faiths — particularly Islam — are given second-class legal status.
The Supreme Court has repeatedly emphasized that the “clearest command” of the First Amendment’s Establishment Clause “is that one religious denomination cannot be officially preferred over another.” The strict rule against denominational preference lies at the heart of American religious liberty, and it dates back to the founding of our nation. The constitutional framers recognized that “religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” When the government officially favors one faith over others, it intrudes on matters of conscience and religious autonomy, fosters religious division and animosity, and tramples our national commitment to equality among faiths.
Yet that’s precisely what happened in Alabama last week. Although Alabama routinely permits a Christian chaplain to be present in the execution chamber to minister to the needs of Christian prisoners, state officials rejected Ray’s request for the same treatment. With the green light from the Supreme Court, Alabama executed Ray without his imam to attend him in his final moments. As the court of appeals recognized, the religious favoritism could not have been clearer: “If Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit.”
Alabama prison officials offered no meaningful defense of their discriminatory policy, beyond unfounded, conclusory assertions that in the interest of safety and security, only the state-employed Christian chaplain could be present. As Justice Kagan made clear, however, the state “offered no evidence to show that its wholesale prohibition on outside advisers is necessary to achieve” the general goal of prison security. And the Supreme Court majority simply ignored the substance of the policy and any claimed justifications for it. Rather, in lifting the stay of execution and reversing the lower court, the majority merely fell back on a two-sentence procedural argument that Ray had waited too long to make his request.
But Justice Kagan easily refuted that theory, noting that Ray had, in fact, sought judicial relief only five days after learning that his imam wouldn’t be with him in the execution chamber — and not, as the majority implied, three months after. Faced with compelling evidence that Alabama’s policy violated “the Establishment Clause’s core principle of denominational neutrality,” the Supreme Court could have allowed the lower courts to address this weighty constitutional issue. Instead, the majority rushed to “short-circuit that ordinary process,” just to let the state have its “preferred execution date.”
Sadly, the Alabama case was hardly the first threat to religious equality in recent years. Just last term, the Supreme Court issued a pair of decisions that cast serious doubt on its commitment to religious liberty for all. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled on narrow grounds in favor of a Christian-owned bakery in Colorado that wouldn’t sell a wedding cake to a same-sex couple on the same terms as all other customers. The court in Masterpiece excused an indisputable violation of the state’s civil rights law because, in the majority’s view, state officials had acted with anti-religious hostility when enforcing the law against the bakery.
The purported evidence of bias was weak at best, yet the court went to great lengths to remind us that fundamental religious freedom “bars even subtle departures from neutrality on matters of religion.” The First Amendment, the court noted, “commits government itself to religious tolerance, and upon even slight suspicion” that state policies “stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”
Alabama prison officials apparently never got that message. Nor, evidently, did President Trump, when he repeatedly disparaged Islam and Muslims and then enshrined that animosity into national immigration policy with his Muslim ban. Remarkably, only weeks after the Masterpiece decision, the Supreme Court let him get away with it.
In Trump v. Hawaii, a deeply divided court upheld the president’s ban, which imposed strict, indefinite entry restrictions on individuals from certain Muslim-majority countries. Unlike in Masterpiece, the evidence of anti-religious hostility underlying the Muslim ban was massive, consistent, and unambiguous. Throughout his presidential campaign, Trump regularly vilified Islam and called for a “total and complete shutdown of Muslims entering the United States” in a statement that remained on his campaign website well into his presidency. Only one week into his presidency, Trump made good on that deplorable promise, issuing an executive order that targeted Muslim-majority countries and included thinly veiled attacks on Muslim communities here and abroad. Later iterations of the ban followed the same basic blueprint, and the president continued to malign Islam throughout the process.
But none of that mattered to the Supreme Court majority in Trump v. Hawaii. In upholding the final version of the ban, the court essentially ignored the overwhelming evidence of blatant anti-Muslim animus underlying the policy, crediting superficial changes the president made in response to earlier court rulings. In the end, the court gave Trump a free pass to discriminate against an entire faith.
Coming on the heels of the Masterpiece decision, the message came through loud and clear. The Muslim ban ruling, Justice Sotomayor explained in dissent, “erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country that they are outsiders, not full members of the political community.”
Later this month, religious neutrality will face another crucial test in the Supreme Court. On Feb. 27, the court will hear oral argument in American Legion v. American Humanist Association, addressing the constitutionality of a 40-foot-tall, government-owned Latin cross. Applying decades of precedent, the lower court in the case concluded that government’s giant display of the cross — “the preeminent symbol of Christianity” — as a war memorial to honor the sacrifices of all veterans violates the First Amendment’s ban on official religious preference. Proponents of the state-sponsored cross, including the Trump administration, hope to upend that precedent and thereby open the floodgates to divisive religious meddling by the government.
But the lower court got it right, and the American Legion case powerfully illustrates the multiple dangers of governmental favoritism in matters of faith. First, the state’s elevation of this singular, prominent religious symbol as a war memorial conveys a message of exclusion and disfavor to non-Christians who sacrificed their lives for their nation. As the Jewish War Veterans of the USA explained to the court, “A government undertakes few tasks more solemn than honoring its war dead. And when the memorial takes the form of a religious symbol of an afterlife available only to Christians, the government favors one faith over others in a profound way. . . . Veterans of all stripes are united by their love of country, but they are not united by the cross.”
Second, just as the founders feared, the government’s display of a Latin cross, including its strained effort to secularize the meaning of this unambiguously and uniquely spiritual symbol, threatens a serious degradation and corruption of the faith. In their amicus brief to the court, a coalition of Christian and Jewish groups, led by the Baptist Joint Committee For Religious Liberty, pointedly noted that the government’s “welter of alleged secular meanings for the cross, and their efforts to minimize its religious meaning, are offensive to many Christians. The [state] violates its obligation to be neutral among faiths both when it sponsors the cross and when it spins stories attempting to secularize the cross.”
Although the Supreme Court continues to pay lip-service to the “clearest command” of the Establishment Clause, its recent decisions have fallen woefully short. In the American Legion case, the court has another chance to honor the constitutional promise of religious neutrality. For Domineque Ray, it’s already too late. But let’s hope the trail of religious favoritism ends here.
Daniel Mach is Director of the ACLU Program on Freedom of Religion and Belief