David French and I do not agree on many things, but in the case of Dunn v. Ray — we find ourselves on the same side.
Dominique Ray was sentenced to death for the rape and murder of a 15 year old girl. The State of Alabama has refused to allow a representative of his faith to be present with him at the moment of his death. They have, however, offered to provide a religious official from another faith. Which seems to defeat the whole point of his request.
I’m not going to talk about my views on the death penalty, I am going to steer away from describing which religion is being favored by the State of Alabama, I’m going to avoid the discussion of God in general. I merely want to say this:
Equal treatment is inherently valuable and protected in our society. Equality of opportunity does not mean equality of results — but when discussing the public sector and the current reality of a country that allows the death penalty, the protections of the First Amendment should guarantee a death row inmate the right to their religious preferences of who stands next to them in their final moments. It is inappropriate that a state prison would offer a substitute religion from which any person would derive no solace.
Perhaps the greatest issue I take with this case is its finality. The prisoner will be executed and his First Amendment rights can never be recovered. He will die without his rights intact. There is no recourse.
The dissent is worth a read in its entirety, as it shreds the majority opinion on both fact and principle.
Kagen, Ginsburg, Breyer, and Sotomayor are correct in their assessment: The majority opinion and the actions of the state of Alabama “go against the Establishment Clause’s core principle of denominational neutrality.”
It will likely be less than a year until a similar case is taken or decided that correctly decides this issue and ensures that the First Amendment rights of all Americans are protected. For the Courts majority to rule in this way, putting procedure above principle, is a bad sign for liberty in the years to come.