Why Kavanaugh and a conservative Supreme Court punted a religious liberty case on procedure

Police officers stand in front of the U.S. Supreme Court in Washington, U.S., January 19, 2018. REUTERS/Eric Thayer - RC1AECFD3360

The Supreme Court’s opinion in Dunn v. Ray, which lifted a stay of execution and denied Domineque Ray the chance to fully adjudicate his strong religion-based First Amendment objections to Alabama’s execution protocol is troublesome in its brevity, its conclusion and the issues it refrains from addressing. The operative part of the Court’s justification for allowing Alabama to execute Ray without having his claims addressed is, in its entirety, “On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay…” The Court cited as its only explanatory precedent, Gomez v. U.S. District Court…, a 1992 per curium opinion which in part held, “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”

The Court’s justification falls short on several counts. One is that the cited precedent says “may,” not “must, and even “must” falls short of mandating a decision to lift a stay. The majority in Gomez was clearly frustrated by what it saw as a series of attempts by a prisoner, Robert Harris, to postpone or avoid execution through a series of successive habeas corpus applications in any one of which the claim at issue, namely that the use of cyanide gas in executions was cruel and unusual punishment, might have been raised. It may be that the five justices who voted to lift the stay in Ray were similarly annoyed by what they saw as defense lawyer gamesmanship, but if they were, they picked the wrong case to give vent to their irritation. Ray’s claim was that his First Amendment right to the free exercise of religion, as expanded by the Religious Land Use and Institutionalized Persons Act (RLUIPA), as well as the First Amendment’s bar to the establishment of religion, rendered unconstitutional an Alabama election protocol that placed a Christian minister on the prison team that entered the execution chamber but barred, even upon request, ministers of all other faiths from entering the chamber to give spiritual comfort to the person about to die.

Unlike Gomez, where the method of execution was well known a decade in advance of the last action Harris brought, there was no judicially noticeable evidence that Ray knew the details of Alabama’s execution protocol until a few days before his objection to this procedure was made. The District Court judge, who initially denied the stay in a decision reversed by the Fifth Circuit Court of Appeals, suggested that Harris could hardly claim ignorance of the state’s protocol because he had been on Alabama’s death row for 19 years, but there is no reason to accept the district judge’s suggestion since the state’s execution protocol was not shared with the public and not revealed to Ray until he was on the verge of being killed. Nor is the information the kind of detail that prisoners on death row would have discussed with each other to the extent they were able to communicate. Although it may be that Ray’s lawyer was familiar with the protocol, Ray cannot be charged with his lawyer’s knowledge. Moreover, even a lawyer who had represented other prisoners in the days before execution might have assumed that if a religious inmate facing execution was not a Protestant Christian, the state would accede to a request to allow a Catholic priest, a Jewish rabbi, or a Muslim imam to replace the Christian minister in the execution chamber.

Indeed, it is somewhat surprising that Alabama did not accede to Ray’s request. Their argument that the imam who Ray sought to have beside him, a man familiar to the prison system, was untrained in execution procedures while the Christian minister, officially a part of the execution team, was trained, is weak. The minister’s role was to stay in the background against a wall if the condemned did not seek spiritual comfort or to advance and hold his hand and/or pray with the condemned if such solace was sought. It is difficult to see why an imam could not be similarly “trained,” to act only in these ways and to do nothing that might interfere with the election. This is yet another difference with Gomez. Had Harris prevailed in Gomez, the state would have had to change its method of execution. Ray required almost nothing of the state.

A final difference between Ray and the Gomez case that the majority cited to support its action is the nature of the constitutional rights at stake. Whether one approves or not, the Supreme Court, and in particular the Court’s more conservative justices, have never held the 8th Amendment right to be free from cruel and unusual punishment particularly dear. Social mores have typically had to change substantially before the Court would step in and declare an historically familiar punishment unconstitutional. The situation is different with the First Amendment, and in particular with its Free Exercise clause. Moreover, 8th Amendment claims are typically hard to make because 8th Amendment jurisprudence is such that cases are seldom clear. In Ray, however, it would have been hard to avoid a principled decision upholding Ray’s claim. It is perhaps too cynical to think that the Court majority disposed of Ray’s claim on procedural grounds because it sought to avoid a decision holding that a state preference for Christianity was a clear violation of the Establishment Clause, but the Court’s feeble justification for lifting the stay invites such cynicism.

This does not, however, mean that Ray’s case was an absolute slam dunk. Getting into the weeds, complexities are visible. Two of three claims that Ray had made, the claim that he had a right to have a spiritual advisor of his own choosing accompany him in the execution chamber and the claim that his Muslim faith meant he had a right to exclude a Christian cleric from the execution chamber were brought under RLUIPA, a statute typically seen as extending rights associated with the Free Exercise Clause of the First Amendment. Only the claim that the state could not mandate the presence of a Christian minister in the execution chamber, as the Alabama protocol did, rested explicitly on the First Amendment’s proscription of the establishment of religion.

Alabama’s response to Ray’s Establishment Clause claim and to his similar, although not identical, claim under RLUIPA was to attempt to moot both objections by agreeing to remove the minister from the team that would execute Ray. The problem with dismissing this portion of Ray’s appeal as moot, which the district court did, is a line of cases which suggests that granting specific relief to an individual litigant to moot a constitutional claim will not necessarily defeat jurisdiction if the claim is one that might arise in other cases. Had Alabama unequivocally stated that it would change its execution protocol so that a Christian minister would no longer be part of its execution teams or otherwise given privileged access to the execution chamber, this declaration, coupled with Alabama’s willingness to forego a minister’s presence at Ray’s execution, would have justified a mootness finding. But, after first suggesting it might take this route, Alabama indicated that it was not going to change its protocol to bar or no longer mandate a Christian minister’s presence at future executions or to allow the presence of clergy of other faiths. The issue that Ray raised was thus not moot, even if the Alabama policy would not be applied to him. Alabama’s refusal to renounce this aspect of its execution protocol seems such an obvious violation of the First Amendment’s Establishment Clause that Ray’s case raising this issue should have been allowed to proceed.

The RLUIPA/Free Exercise claim raises its own issues, and ultimately their resolution cannot avoid addressing Establishment Clause issues as well. Had Alabama barred ministers, rabbis, imams and the like from serving in a religious capacity on execution teams, it is doubtful that a court would have found RLUIPA or constitutional problems with this determination. Condemned prisoners, like Ray, were allowed to have pre-execution contact visits with a spiritual advisor and to be accompanied by the advisor as they were brought to the execution chamber. Moreover, advisors could be present at the execution, on the other side of a glass partition, where they were visible to the condemned and could mouth prayers or otherwise try to silently communicate. With this access to religious consolation, the claim that one’s free exercise of religion was infringed on because a spiritual advisor could not be physically present in the execution chamber in the last moments before death would almost certainly have been rejected by the courts.

What makes Ray’s RLUIPA/free exercise claim substantial is that Christian prisoners could, if they wished, exercise a right to have a minister of their faith present before their death but prisoners of other faiths could not. The fact that this right was given by Alabama law and policy and not by the RLUIPA or the Free Exercise Clause of the First Amendment is what makes the Establishment Clause claim relevant to this issue, viable, and in my view persuasive. Indeed, one might go further. I can’t help but wonder whether this case would have been decided differently had Ray been Catholic and requested the presence of a priest at his execution or, indeed, whether Alabama would have denied a Catholic’s request to have a priest present. The possibility of implicit anti-Muslim bias on the part of both Alabama’s prison officials and the Supreme Court majority cannot be wished out of existence.

Coincidentally, the decision in Ray was handed down the same day that the Court decided to stay the effective date of the 5th Circuit’s decision in June Medical Services, the Louisiana abortion regulation case, which, in apparent contravention of recent Supreme Court precedent, might have forced most of the state’s few remaining abortion providers to cease their activities. Justice Kavanaugh, who sided with the majority in refusing to stay Ray’s execution, not only dissented from the majority’s decision to stay the application of Louisiana law but chose to publish his first separate dissent in this case. Although there is good reason to think that Kavanaugh will further empower the Court’s conservative wing, we have had to date few cases that give a clue to how Kavanaugh will approach the issues he will confront. It is perhaps reading too much into a very small sample, but it is notable that in both Ray and in his dissent in June Medical Services Kavanaugh took refuge in procedure to duck the constitutional issues that were posed. In Ray, Justice Kavanaugh was part of a majority that used a claimed procedural default to avoid addressing First Amendment claims. In his dissent in June Medical Services, Kavanaugh objected to a stay on the grounds that the better procedure is to allow the Louisiana law to take effect and then, if it seemed to be having the effects its opponents anticipated, to consider the law’s constitutionality.

True, Kavanaugh’s stance in June Medical Services could be duplicitous, a way to bring about a result he favored without directly advocating for it. In Whole Woman’s Health, where the immediate application of the Texas law that Louisiana imitated was not stayed, by the time the law was declared unconstitutional the number of abortion clinics in Texas had declined from 42 to 19. In Louisiana only one abortion clinic might have been able to keep its doors open had the Circuit Court’s refusal to stay the law not been overturned. If Kavanaugh is not being duplicitous, however, his position on abortion might be more respectful of precedent than most people reading his June Medical Services dissent are willing to recognize. Kavanaugh’s dissent makes little sense unless he thinks that the impact of Louisiana’s law on the availability of abortion services within Louisiana affects the law’s constitutionality. The other three justices who dissented from the denial of a stay—Thomas, Alito and Gorsuch—have no such reservations. By not joining with Kavanaugh, they tell us that they have no need to see how the Louisiana statute affected abortion providers before passing judgment on its constitutionality, an unsurprising position given that they dissented in Whole Women’s Health. Indeed, it is possible that Kavanaugh was motivated to write his dissent more by a concern to distinguish his views from those of his fellow dissenters than by a desire to indicate his differences with the Court’s majority. Coupled with questions he has asked in oral arguments and a few votes he has cast, there is, at least at this early stage of his Court service, some reason to withhold judgment on the likelihood that his votes will always reflect his ideological preferences. He will be part of the Court’s conservative wing to be sure, but he may be more respectful of procedural niceties and precedent than some of his right-wing brethren.