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Amy Coney Barrett joins liberal justices to stay execution, grant inmate’s pastor access

The result hinted at Barrett's broader approach to religious liberty.

Supreme Court nominee Amy Coney Barrett listens during a confirmation hearing before the Senate Judiciary Committee on Oct. 14, 2020, on Capitol Hill in Washington. (AP Photo/Susan Walsh, Pool)

WASHINGTON (RNS) — Supreme Court Justice Amy Coney Barrett joined three liberal justices in allowing a pastor to be present during an execution, hinting at her broader approach to religious liberty disputes.

The decision regarding Dunn v. Smith, which was handed down late Thursday evening (Feb 11), involved death row inmate Willie Smith, a Christian who requested his pastor accompany him into the execution chamber. Barrett signed on to the major ruling along with liberal justices Elena Kagan, Stephen Breyer and Sonia Sotomayor in upholding the lower court’s decision to allow the pastor’s presence, while Justices Brett Kavanaugh and John Roberts wrote the dissenting opinion.

The other vote names were not listed, making it unclear who else joined with Barrett and others in granting the pastor access; however, at least one additional conservative judge would have had to have joined in order to reach majority.

“The law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the State puts him to death,” wrote Kagan, who authored the ruling.

Justice Brett Kavanaugh was joined by Chief Justice John Roberts in his dissent, arguing he supported Alabama’s policy of excluding all spiritual advisers from the execution room, because “the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room.”

Justice Clarence Thomas only noted he would have sided with Alabama’s request to overturn the lower court’s decision, meaning he joined the court’s conservatives, but the votes of Justices Samuel Alito and Neil Gorsuch were unclear.

The case is one of several recent legal disputes involving the role of religious leaders in executions. In 2019, the court allowed Alabama officials to bar a Muslim inmate’s imam from the execution room with the four liberal justices being outvoted 5–4, arguing the inmate had waited too long. The court arrived at a different conclusion later that same year, when justices voted to force Texas to allow a Buddhist inmate to be accompanied by his spiritual adviser during his execution.

The court is poised to turn even more sharply on religious liberty issues with the recent addition of Barrett, who, legal experts have noted, has a particular interest in such issues.

During her 2020 confirmation hearing, Barrett responded to a question about the Constitution’s Establishment Clause — which stipulates Congress “shall make no law respecting an establishment of religion” — by recounting a conversation she had with the late Justice Antonin Scalia. When he asked her what part of Supreme Court precedent should be “better organized,” she pointed to cases involving the First Amendment, especially “balancing” the Establishment Clause with the constitutional prohibition against inhibiting religious practice.