In
Ray v. Commissioner, Alabama Department of Corrections, (11th Cir., Feb. 6. 2019), the U.S. 11th Circuit Court of Appeals granted an emergency stay of execution to a Muslim inmate on death row whose request to have his Imam with him during his execution by lethal injection was denied by prison authorities. Prison rules call for the prison chaplain-- a Christian-- to be in the execution chamber, but allow his Imam to be only in the adjoining witness room. The prison was willing to waive the requirement for the Christian chaplain to be present, but was not willing to allow his Imam to be in the chamber. The appeals court concluded that this amounts to an Establishment Clause violation, saying in part:
The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.
Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”
The court went on:
We acknowledge again that we owe deference to the state’s assessment of its security requirements, and we are reluctant to substitute our judgment for the Commissioner’s.... But we cannot simply rely on the unexplained ipse dixit of the state that there are no less restrictive means in the face of Alabama’s obvious denominational preference. To do so would ignore our constitutional obligations and the unambiguous command of the First Amendment that forbids the state from putting its power, prestige, and support behind one religious belief to the exclusion of all others. It remains the state’s burden to demonstrate that there are no other less restrictive means by which to protect its interests....
The court added:
Ray’s claim may well fit under the rubric of RLUIPA as well, though it seems to us more naturally framed by the Establishment Clause.
AP reports on the decison.
[Thanks to Doug Velardo for the lead.]
