February 15, 2019

Dunn v. Ray: We Should Have Seen This Coming

Frederick Mark Gedicks Guy Anderson Chair & Professor of Law at Brigham Young University Law School


Last week, the Supreme Court confirmed what religious minorities and unbelievers have known for some time: Christianity is the Court’s preferred religion, which states may also officially prefer if they wish.

Muslim Dominque Ray, condemned to death for what all agree was a horrific crime, requested that an imam be at his side as he was executed. For reasons that remain obscure, the state of Alabama refused, insisting that only its state-employed prison chaplain could be present in the execution chamber. It’s hard to know how much comfort a Christian cleric can give a Muslim facing imminent death—probably about what an orthodox rabbi might do for a Roman Catholic, or Mormon elder for an evangelical Protestant: maybe more than no comfort at all—though maybe not, given the stark theological differences—but surely a poor substitute for ministering by a leader of the prisoner’s own faith. For Muslims condemned to death in Alabama, however, it’s either the prison’s Christian chaplain, or nobody. Ray chose nobody.

It wasn’t that the state couldn’t find an imam who wouldn’t undermine “prison security” or unspecified “execution procedures”; the state insisted it had no obligation even to try. The Supreme Court agreed, vacating a lower court ruling which found that the state’s denominational preference for Christianity violated both the Establishment Clause and a federal statute mandating religious accommodation of inmate religion.

The Court’s decision triggered bipartisan, ecumenical condemnation. As Justice Kagan noted in her dissent, “The clearest command of the Establishment Clause”—indeed, the one thing everyone thought was indisputable—“is that one religious denomination cannot be officially preferred over another.” [2019 WL 488293, slip op. at *1] And yet, no one should have been surprised—Kagan least of all—for Dunn v. Ray is the logical endpoint of the Supreme Court’s jurisprudence of state use of Christianity.

This jurisprudence began in 1984, when the Court held that a municipally sponsored Christian nativity was a secular symbol of the equally secular “Christmas holiday season.” [Lynch v. Donnelly] From here the Court moved to government displays of the Ten Commandments, beloved of conservative Christians and, we are told, also secular if the government is not too transparent about its pro-Christian motivations. [Van Orden, McCreary County] Next came Latin crosses at war memorials, which a Court plurality understood to honor non-Christian and unbelieving soldiers despite its ancient association with Christianity. [Salazar v. Buono]

The most recent decision in this line was Town of Greece v. Galloway (2014), where the Court found that prayers delivered by Christian ministers in the Christian manner in advance of government meetings do not violate the Establishment clause, so long as they retain a “solemn and respectful tone” which lends “gravity to the occasion” and causes reflection on “values long part of the Nation’s heritage,” and “shared ideals and common ends.” [572 U.S. at 582-83]

The implicit principle running beneath these decisions is the Court’s belief that the symbols and practices of Christianity speak to, and for, all Americans. If a representation of the virgin birth of the Son of God, the symbol of divine commandments given to a Biblical prophet, and the quintessential sign of the crucifixion of Jesus Christ, are somehow not Christian, if the quintessential act of Christian worship—prayer to God in the name Jesus Christ—is somehow secular, why should we be surprised to find that a Christian chaplain employed by the state is perfectly able to comfort a Muslim facing death?

The various puzzling efforts to both criticize the Court’s decision and absolve the Justices of anti-Muslim bias miss the point of the Establishment Clause. Imagine that what reached the Court was a lower court decision staying an execution with the roles were reversed, a condemned Christian whose only option is a Muslim imam. Does anyone really think that the Court’s suspicion of the death penalty bar [Will Baude, Volokh], or the value it places on finality in death penalty litigation [Luke Goodrich WSJ], would have caused it to reach out and reverse the lower court decision so the Christian could be executed with an imam by his side?

We don’t know the answer to this question, because it has never happened, and probably never will. Islam, unlike Christianity, is not a supposed stand-in for all Americans and All-American values. But in truth, neither is Christianity. The enduring value of the Establishment Clause in the United States has been its guarantee that all believers and unbelievers are equal before the government, that it prefers none of their religions to any other. We should all regret that the “clearest command of the Establishment Clause,” is no longer clear, nor a command.