Supreme Court says religious freedom is essential even on death row

Written by William C. Duncan

February 19, 2021

While some view religious freedom as divisive, a recent U.S. Supreme Court ruling regarding the execution of an Alabama death row inmate illustrates how religious freedom can and does bring together in unity individuals from across political and ideological spectrums.

In 1991, Willie Smith abducted and killed Sharma Ruth Johnson in Birmingham, Alabama. He was convicted of murder and sentenced to death. Like many death penalty cases, Smith’s has generated significant litigation. Last week, the Supreme Court weighed in on one of the legal issues and vindicated the principle of religious freedom.

The background to the court’s Feb. 11 decision is a 2019 policy change in Alabama. Prior to the change, a Christian chaplain employed by the state was allowed to be in the execution chamber with the inmate when he or she was executed. In 2019, the Supreme Court ruled that a Texas policy of allowing only Christian and Muslim spiritual advisers was unconstitutional as applied to a Buddhist inmate who wanted to have a minister of his faith present at his execution. So, Alabama changed its policy and prohibited all religious ministers from being in the chamber at the time of execution.

Before his execution date, Smith challenged the new Alabama policy so that he could have his pastor with him at the time of his execution.

He made two claims. First, that the ban violated the U.S. Constitution by preventing his free exercise of religion. Second, that the policy violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law unanimously approved by Congress in 2000, which extends the protections of the Religious Freedom Restoration Act to all prisoners incarcerated in prisons that receive federal funds.

The Supreme Court issued its decision about an hour before the scheduled execution, which resulted in the execution being postponed.

A majority of the justices determined the state could not exclude Smith’s pastor from the execution chamber. Justice Elena Kagan wrote a brief opinion, joined by Justices Stephen Breyer, Sonia Sotomayor and Amy Coney Barrett, which argued that “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.”

Kagan and her colleagues noted RLUIPA sets a very high standard for a law or policy that imposes a burden on religious practice. In fact, these justices pointed to practices in Alabama and other states that, they argued, “shows that a prison may ensure security without barring all clergy members from the execution chamber”:

Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.

Alabama had argued that its policy was necessary to prevent disruptions of the execution, but this opinion said the state could not “simply presume that every clergy member will be untrustworthy.”

Justice Brett Kavanaugh (joined by Chief Justice John Roberts) wrote a dissenting statement, arguing the Alabama “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.” Kavanaugh’s opinion pointed out that:

it seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done. Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.

Justice Clarence Thomas announced that he would have allowed the execution to proceed. Justices Neil Gorsuch and Samuel Alito did not publicly announce their positions, but at least one of them must have joined the majority opinion.

There is a common saying that hard cases make bad law, but the Supreme Court has recently shown that this does not have to be the case. By upholding the principle of religious freedom even in difficult cases, like those involving pandemic restrictions or capital punishment, the court has reminded us that our commitment to constitutional rights must be consistent and sustained.

Everything about this case is tragic: the murder of an innocent person, the abuse perpetrated on the murderer as a child. The ruling on this case, however, brought together conservatives and liberals on the court in a unified belief that the religious freedom of prison inmates deserves strong legal protections in both statute and practice. Religious freedom does, on occasion, generate conflict with other liberties and rights – and those conflicts draw a lot of attention from news media. But just as often, and just as often ignored by the media narrative, religious freedom brings conservatives and liberals together in common cause on behalf of Americans’ rights.

The unifying power of religious freedom illuminated by this Supreme Court ruling is something to celebrate – and something our nation desperately needs right now.

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