Freedom from/Freedom to: The case of religious liberty, the Supreme Court, and two inmates on death row

Two virtually back to back conflicting decisions by the Supreme Court on the right of prisoners to have a spiritual guide of their own choosing in their death chamber highlight a new frontier on the separation of church and state. In one case a black Muslim man was refused an imam in his final moments and the Supreme Court did not stop the execution. Domenique Ray was put to death on February 7th.  Less than two months later a white Buddhist in Texas is also refused a spiritual advisor in his execution chamber, and this time the Supreme Court halts the execution. 

The Joint Baptist Committee for Religious Freedom is a faith-based lobbying and advocacy group based in Washington DC that seeks to preserve and defend the separation of church and state. To understand what these decisions mean, Executive Director Amanda Tyler spoke with Beliefs producer J. Woodward via Skype. 


This transcript has been edited for clarity.

Amanda, thank you for joining us on Beliefs. Thank you and welcome.

Thanks so much for having me.

We asked you to come to Beliefs this week because you recently wrote an opinion article for Religion News Service about two Supreme Court decisions on religious freedom and the death penalty. Tell us about the first case, the execution of Dominique Ray.

Sure. So, the issue there was: Mr. Ray who had committed a heinous murder back in the ‘90’s while he was in prison. He had converted to Islam and he had been working with a spiritual adviser with an imam who was provided through the Alabama Department of Corrections for several years.

A few weeks before his scheduled execution date, the prison official came to talk to him about what was going to happen on the day of execution. And at that point he learned that the Alabama's policy was to have a Christian chaplain accompany him into the execution chamber and be with him at the moment of death. He objected to this practice. He said: I don't want a Christian chaplain with me in that moment. I do want to see my imam who's been working with me; I would like him in the chamber.

At that point the state denied his request, and when it came to the Supreme Court, the majority justices said that Mr. Ray had waited too long to raise these claims. Mr. Ray was executed on February 7th.

So, that's Dominique Ray. He's scheduled to be executed on February 7th,  and 10 days prior to that he learns that his imam will not be allowed in the chamber with him at his moment of passing.

So, tell us about the second case: Patrick Murphy.

This case comes out of Texas. Patrick Murphy, again, committed a heinous crime. And while he was in prison, I believe, he also converted to Buddhism. Texas had a similar policy to Alabama: they would only allow state officials who were chaplains into the execution chamber and the only chaplains that the state employed for this purpose were Christian or Muslim. No Buddhists.

So, he requested to the state that he have his Buddhist advisor present with him in the execution chamber. Again, the state denied that request. He did not file his claim with the federal court in this case until two days before his scheduled execution. This time, the [lower] courts said that his execution could go forward, on the same sort of reasoning from the Ray case: that he had just waited too long.

This time, it works its way up to the Supreme Court and they come up with the opposite decision. They say: no, that the state of Texas cannot go forward with this execution until it allows a Buddhist spiritual adviser in the chamber with him.

Well, that doesn’t seem to make a lot of sense...

This is really shocking to a lot of court watchers. We felt like this court, which has been very solicitous of free exercise claims, [has been] very interested in protecting religious liberty in other contexts… that they would deny this prisoner his imam was very shocking.

And then less than two months later the Court issued, basically, the exact opposite opinion.

Yes! We had ten days in the Ray case [and] two days in the Murphy case – so it can't be that it was an issue of timing. And I think a lot of people then ask the question: you know what, what's the difference between these two cases, right?

So that leaves us with only a couple possibilities for what that means, right?  One, that the court took on board some of the public outcry regarding this decision and it affected their thinking so much that they made a contrary decision. Or two, we have to acknowledge that Dominique Ray was a black Muslim whose execution was allowed to proceed, but Patrick Murphy is a white Buddhist. And so, in considering his situation, the court reversed itself inside of two months.

Yeah… I tend to think it is more the first. That the justices who changed their votes in these cases were really swayed by the public outcry and the advocacy both. Justice Kagan, who wrote the dissenting [opinion] in the Ray case, called the court's ruling that the execution could go forward profoundly wrong.

But the fact that the court got it right to me on the second case is small solace for Mr. Ray, of course, who was killed without a spiritual adviser at his side.

Now, in addition to this being a fascinating moment for Supreme Court watchers, it also is important for understanding, what is the state’s role in the spiritual lives of US citizens? Specifically, [for] a conversation on the separation of church and state. Your organization, the Baptist Joint Committee for Religious Liberty, advocates and lobbies in this space. Can you tell us about what you do?

Sure. So, at B.J.C. see we defend and extend religious freedom for all people. We do it from a uniquely faith-based perspective - from the Baptist faith tradition - and in doing so we are the only denominationally-based organization that works solely on religious freedom and separation of church and state. We're located in Washington right across the street from the Supreme Court. We've been doing this work for more than 80 years and a lot of our work is done with the Supreme Court: filing friend of the court briefs in nearly every church state case that comes before them, as well as working in advocacy with Congress and doing education with groups around the country.

A faith-based perspective on religious freedoms cases is a unique perspective, isn't it? There aren't many faith-based organizations that so actively pursue the separation of church and state, and the rigorous enforcement of the Establishment Clause like you do. Is that correct?

I think that's true. I think because we see religious freedom as uniquely protected in this country by robust protection of both of our First Amendment protections, that government will not establish religion, that government will stay neutral in matters of religion, and that that will lead to the greatest freedom possible for all faiths - and for people of no faith at all. That both of those are equally important and protecting religious freedom that that serves well both people who are in a majority religion status and those in a minority status including people who don't claim a faith tradition.

So, as I understand it, that’s how we’ve been looking at these cases for the past ten or 20 years: that we are exploring the distinctions between the freedom to exercise freely, and the freedom from interference with our practice. Are those things in tension? Are they harmonious? Is one becoming more prominent?

Yeah. I think religious freedom requires both. That they're not mutually exclusive. That in order to have freedom to practice your religion you also have to have government not taking a side in that, and that view that government must remain neutral in matters of religion is not anti-religious. If we look back at the founding of the country and the drafting of the First Amendment, it was people of faith including many Baptists who insisted on government neutrality in matters of religion as a way to protect their religious exercise. That's because when governments take sides they necessarily pick and choose, and religion is best left in private hands. And that the government's involvement will only dilute religious practice and could of course harm it for those who are being persecuted.

What do the decisions in these two cases mean for your work at the Baptist Joint Committee, and where are we as a country in this new turn in the conversation about how religious liberty should affect not just prisoners, but convicts on death row?

Well, one, I think we're having a pretty robust conversation about what religious freedom means and what it means in a pluralistic society. It's been heartening to see groups that don't always agree on these issues coming together really in defense of allowing all faiths to have representation there in the death penalty chamber. I do think it’s important to look at what Texas did after the court’s decision... that the state may not carry out Mr. Murphy’s execution unless they permit his Buddhist spiritual advisor or another Buddhist referent of the state's choosing to accompany Murphy into the execution chamber during the execution.

I was reading the entirety of the opinion. There was that one statement in Justice Kavanaugh’s concurrence - again, this isn’t the force of the whole court, it’s what he thought. He thought the state might have two options. They could either allow a Buddhist reverend, or they could say, no reverend at all. And it's that second option that the state has said. They said look, if this is going to be the law, then we're just not going to have any spiritual advisers in the chamber.

And I think that's the exact wrong direction. We at B.J.C. say, when anyone's religious freedom is denied, everyone is threatened, and I think that's what we see here. You know, here we saw Mr. Murphy having his religious freedom denied when his request was refused. But the state's response isn't to accommodate that religion. It's to say: Well, if we have to provide it to you, then we just won't provide it for anyone. And that of course hurts not only Mr. Murphy, but every other prisoner who might be executed now without a spiritual adviser at his side.

That seems strangely petulant... As though you could say Justice Kavanaugh provided an absurd alternative by saying either provide for all faiths or no faiths. Do you suppose it was imagined that Texas would actually turn around and say: Well, we'll choose no faith guide comfort for prisoners being put to death.

I think we see courts having a strong deference to the state in matters [like] prison control and particularly in matters of execution. And I think the Justice Kavanaugh’s suggestion there was a sign of deference because, of course the state's arguments in both of these cases have been - this is all about - prison security.

Their argument isn't that that these other faiths don't deserve representation, but they say: Well, it would somehow impact the security of the execution process. And I think to see Texas go in that direction… they're really just hunkering down on that argument. I think many of us in the religious freedom world think that that's not right.

It will be interesting to see if we see future litigation of this case as it relates to Mr. Murphy and what impact that might have; if the court will indeed say there is actually a First Amendment or a statutory right, under something called the Religious Land Use and Institutionalized Persons Act, that provides extra protection for prisoners… that they actually have an affirmative right to have a spiritual adviser in the death chamber. That could be a question that we'll be seeing in the coming weeks or months the court address.

That was my next question: What is the horizon for death penalty cases, religious freedom cases… what are we going to be talking about for the next three to five years?

Well, I do think that this kind of situation - where we're finding policies that are both written and then executed in a way that show a preference for a majority religion (…Christianity) - are going to be challenged in this way by minority religions and by people who ascribe to people who identify with minority religions.

It'll be interesting to see if the states respond in a similar way. That instead of accommodating minority religions, [they] will just take away the accommodation for all. This Supreme Court has been very solicitous of free exercise rights, but those cases have been coming up recently mostly in the context of Christians raising those claims. When we start saying free exercise rights cases coming from minority rule elections, it'll be interesting to see if the court is consistent in its application of the law for them.

But this particular controversy about religious freedom in the death chamber - it feels like we haven't heard the end of this, because the justices are having conversations with each other in these opinions. And I think they might be reflective of conversations they're having inside and with each other at the court. We'll see if we see future arguments or decisions. I do think this is an evolving area. It's an interesting one and it's one that has gripped the attention of court watchers and in everyday Americans as well.

Is there anything else that you think we’ll be talking about in religious freedoms coming up? What’s going to be next?

Well, the Supreme Court has another church state case pending right now. It's called American Legion vs. American Humanist Association. It's also known as the Bladensburg Cross case.

And this is the World War One Memorial Cross that sits at a traffic intersection, right?

That’s right. And the question before the court is whether a 40-foot cross on government land constitutes an establishment of religion. The parties who are looking to keep this cross in place have made an argument that the cross is a secular symbol, and [as] a secular symbol, that it just stands for death in general and honoring war dead, and therefore it can stay on government land.

And it's in the middle of a very busy intersection and the American Humanist Association challenged this crosses and establishment as the government taking sides and sponsoring a Christian symbol. The justices will have to decide the fate of this particular cross.

But also, they're asking the question: would future such memorials be allowed? We'll see the decision on the court in this case probably this June, and the B.J.P. has been involved in this case. We filed a brief saying that, yes, this is an establishment of religion because the cross is a religious symbol, and we were responding to arguments from the other side that the cross is just a secular symbol.

We say the cross is a religious symbol - in fact, it is the preeminent symbol of Christianity - and for the government to claim that it is merely a secular symbol is offensive to Christianity as it attempts to strip the cross of its religious meaning.

Amanda Tyler, thank you so much for joining us and Beliefs.

 Thanks so much for having me.