Welcome to the Liberty Insider.
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This is a program
designed to bring you up-to-date
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on some of the
logic and the developments
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on religious liberty,
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separation of
church and state primarily,
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on religious liberty
developments in the US
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and around the world.
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My name is Lincoln Steed,
editor of Liberty magazine,
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and my guest on this program
is Attorney Sonia DeWitt,
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distinguished by also
being a Liberty author.
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And I know
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you've got a lot of
thoughts on different things
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and one of the
articles you read recently,
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I found quite troubling.
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And ironically, it had
nothing to do with my faith.
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You told the story of a
recent prisoner execution
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in the US of a Muslim
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and how he ultimately was
denied the right of an imam
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to be present at his execution.
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That's pretty bad. Yes.
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It's your last moment on earth,
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you know?
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We usually think of the priest,
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for the
Catholics shriving someone,
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you know, at the last moment
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or the chaplain in
the military bending over
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and giving those last
words, that's the last charity,
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even if it's your
worst enemy, right?
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Right.
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You at least be kind to them.
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You give them a
Bible or whatever.
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But here, it's withheld
by government edict, right?
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Right.
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Now, what led to such a
thing in the United States?
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Well, that's an
interesting question,
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and I don't
really know the answer.
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I don't know why the
court ruled the way it did.
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There's been a lot of
speculation about that.
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I know why they said
they ruled the way they did,
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but I don't believe it.
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So recount it again. Okay.
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I sort of hopscotched
in the middle of the story.
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Just to get people's
attention, but what happened?
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So Dominique Ray
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was a Muslim prisoner in Alabama
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who is being executed?
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What was his crime, by the way?
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I'm sure, murder or something?
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Murder, yes.
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But I don't remember
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the circumstances of the murder.
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It was pretty brutal 'cause
most capital crimes are brutal.
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Yeah.
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But regardless of that,
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the prison had a
policy that only allowed...
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They had a Christian
chaplain, no other chaplains.
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They only allowed
the Christian chaplain
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to be present in the chamber.
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Other people could
watch from the viewing room,
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but only the Christian chaplain
was allowed in the chamber.
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I have a question.
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I read your article,
but I don't remember this.
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When did he convert to Islam?
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I don't remember.
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Was it in prison?
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I don't remember.
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I don't know
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if that was a
factor in the case.
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It just occurred to me.
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It doesn't change
the legal situation,
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but it may
explain the resistance
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if he had been a
convert in prison
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because I know the
authorities are very troubled
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against recruitment to
radical Islam in prisons.
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Well, I don't think
that that was a factor.
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It certainly wasn't a factor
in the circuit court decision
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because the 11th
circuit, which in Alabama,
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as you can imagine,
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is one of the most
conservative circuits.
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Yeah.
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So their
decision was very strong.
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They basically said, it's
clear in the Constitution,
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which it is, under laws,
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under decisions
that go back 70 years,
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that the
government can't discriminate
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between religions,
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that it has to treat
all religions equally.
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So that decision
by the circuit court
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was very, very clear.
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So it went up to
the Supreme Court,
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and the Supreme Court basically,
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the majority decision
was essentially one paragraph
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saying his
appeal was not timely.
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Now that decision was,
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in my opinion, and many people,
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many commentators I've read,
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completely disingenuous
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because although he knew
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he was going to be executed back
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in November,
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he only became aware
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that his
request to have the imam
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in the chamber was
denied on January 23...
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Too close for the appeal, right?
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He appealed it on January 28.
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So he waited
less than five days.
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So there is really no...
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And this is what the dissent...
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Elena Kagan wrote the dissent.
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And she pointed out
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that their timeliness argument
really didn't make any sense,
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but that was the
only rationale they gave.
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So the implication was clear.
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And Kagan wrote a
very clear dissent
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as well talking about how...
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Citing the multiple cases
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that say you can't discriminate
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based on
somebody's religious beliefs.
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And, of course,
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the majority ignored it
and he died without the imam.
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So that was a
very, very disturbing.
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But I don't even
understand the timely argument
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on certain things
where it's an inherent right.
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I'm sure there was a
chaplain in close proximity.
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Couple of hours
before the event,
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they could have
easily gotten someone.
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Well, there was also discussion.
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So that's an
argument of protocol
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on a principle that
should be automatic.
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Well, yes,
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and you find the
court doing that a lot
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when they want to
dodge the merits of an issue.
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They will rely on
procedural grounds
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that happened in
the Masterpiece Cake,
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by the way, that
it was a decision
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made on procedural
grounds, not on the merits.
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Yeah, I know.
And so that's why...
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And we can talk about
that elsewhere, right?
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On that cake thing,
very little was settled.
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And so I
understand that they only,
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not only, they
primarily were favorable
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to the cake baker
because he had been vilified
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after the fact
by some gang groups.
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Right because
statements that were made
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by the
antidiscrimination organization.
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Yeah, so it really
doesn't settle anything.
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So it was not.
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It was not a
decision on the merits.
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So they like to avoid
making decisions on the merits
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when the merits
are uncomfortable.
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So in this case,
they used timeliness,
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which is clearly, in my opinion,
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not at all a viable explanation.
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The other issue in the
case that was very interesting
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was strict scrutiny,
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which is the highest
level of constitutional review.
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Strict scrutiny means that
it has to be narrowly tailored,
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that means that it's
the most narrow thing
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that you can do to
restrict somebody's rights.
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And it also has to be
the least restrictive means.
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Yeah.
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So the circuit court's
opinion pointed out clearly
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that this...
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What the prison was trying to do
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didn't meet
either of those criteria.
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So it was clear
that they didn't meet
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the constitutional standard.
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In fact, they
didn't even really try...
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They didn't meet
the fairness state.
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They didn't give any real option
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to the prisoner,
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other than just
having the Christian chaplain
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or not having anyone at all.
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Yeah.
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And they didn't give
reasons and that's...
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Constitutional review requires
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that you justify the
decision that you're making.
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Yeah. I've got to admit...
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Personally, that
bothered me more than
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almost any other
article I've read
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because I understand,
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you're
explaining the legal line,
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but, you know, executed man,
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you know, maybe it's
more holy than anything.
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But an idea, a last
cigarette or whatever,
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that's the most severe thing
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that a government
can do to someone,
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take away their life.
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And here, you're
not going to show them
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this modicum of
humanity at that last moment,
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deprive them there.
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Religion is close to
the person's very soul,
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right?
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You've deprived
them of that dignity.
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Yes.
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I just think
it's a gross injustice
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and the most prejudice slack
against another human being.
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Well, yes.
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And as the
circuit court pointed out,
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the prison didn't even
really make a good attempt
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to justify
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why they couldn't have
the imam in the chamber.
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They said, the
circuit court said,
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they could
potentially justify it,
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but they would
have to make a showing
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of why that it's
somehow affected security.
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There was some discussion about
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how the chaplain was
trained in execution procedures.
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But there was no
discussion of why the imam
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couldn't have
received the same training.
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But I can think of
a thousand variants.
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Most executions,
aren't they still witnesses?
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Yes, they're
witnesses in the viewing room.
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Right.
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I didn't know this whole story,
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but even as the
most minimal thing,
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they could have had
some of his fellow faith
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and other imams and
all are sitting there
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to be a support.
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Well, to be clear,
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the imam was
allowed in the viewing room.
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He just wasn't
allowed in the chamber.
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So that's...
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Well, that's at least something.
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Yeah.
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But this doesn't
fully... It doesn't...
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No, because the Christians...
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Even partially
satisfy the legal requirement.
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Because the
Christians had the opportunity
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to have their Christian chaplain
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in the viewing room,
I'm sorry, in the chamber.
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Now was the imam allowed
in his cell closely before?
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I believe so.
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Yeah.
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But not to have
someone there by your side
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at the moment of
execution, to me,
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that's where the
cruelty comes in.
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Yeah, that's a lonely moment.
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So that and even more than that,
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the implication was,
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at the time, and I believe this
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and many other
commentators had similar views
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that the court was
essentially thumbing its nose
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at the principle
of non-neutrality
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that government is not
supposed to discriminate
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between religious faiths.
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So that appeared...
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It appeared that the
court was essentially
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just doing away with that,
or at least by implication,
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they were
ignoring that whole line
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of legal argument.
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Have you read any
of their comments?
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I don't...
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They didn't
really make comments.
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The decision was so minimal.
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And well,
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Gorsuch made some
really nasty comments
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in his decision
in a subsequent case
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about how defendants
shouldn't use these bogus means
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to try to delay
their executions,
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and it was real nastiness.
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This was a case that somebody
was basically tortured to death
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because of their condition,
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reacted to the lethal injection.
00:11:00.79\00:11:03.43
And he said that that was okay
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because that was okay
under the original but...
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Well, it's worth mentioning
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that the US is
somewhat out of sync
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with at least the
rest of the civilized world
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in executions of these
notes or any execution.
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Right.
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I know, for many Protestants,
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we get our back up a bit
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because the pope is
sort of taken so publicly
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an anti-execution stance,
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but the reality
is the Western world
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doesn't see this as
a fully appropriate way
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to deal with the...
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Well, there are
a lot of problems
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with the concept of
execution in general...
00:11:36.69\00:11:40.23
Not least with DNA testing.
00:11:40.26\00:11:42.40
Yes, yes.
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People who have
been freed after decades
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of imprisonment...
00:11:47.10\00:11:48.54
On death row, yeah.
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When it was determined
that they were innocent.
00:11:50.37\00:11:52.07
Yeah.
00:11:52.11\00:11:53.48
Yes, that is.
00:11:53.51\00:11:55.18
And also, their
racial components
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to why people or how
people are convicted.
00:11:57.21\00:12:00.82
So it's...
00:12:00.85\00:12:03.49
The death penalty
is a problematic issue.
00:12:03.52\00:12:06.05
I mean, it's very obvious
if anyone thinks it's true,
00:12:06.09\00:12:09.32
you and I were talking privately
00:12:09.36\00:12:10.79
about the American
War of Independence
00:12:10.83\00:12:15.10
and the role of the
convicts from England
00:12:15.13\00:12:18.23
and then
Australia being settled.
00:12:18.27\00:12:20.17
And I made the comment,
which I know is the fact
00:12:20.20\00:12:22.90
that there was a class
war in England at the time.
00:12:22.94\00:12:26.11
But that was that time,
00:12:26.14\00:12:27.68
but there's a
class war in this country
00:12:27.71\00:12:29.78
and in most western countries,
00:12:29.81\00:12:31.48
and the prisoner
makeup reflects that.
00:12:31.51\00:12:35.98
A very wealthy person
for any number of reasons
00:12:36.02\00:12:39.02
is not very likely
to end up on death row.
00:12:39.05\00:12:42.52
Right.
00:12:42.56\00:12:43.89
So it's the less fortunate
00:12:43.93\00:12:48.40
that suffer this and,
00:12:48.43\00:12:50.53
you know, I'm not willing to say
00:12:50.57\00:12:52.17
and, you know, we're not
putting a political position,
00:12:52.20\00:12:55.34
but I think the death penalty
00:12:55.37\00:12:57.11
should be
looked at long and hard
00:12:57.14\00:12:59.24
in modern civilizations
or modern countries.
00:12:59.27\00:13:01.64
Well, certainly the way
00:13:01.68\00:13:03.01
it's administered
should be looked at.
00:13:03.04\00:13:04.38
Yes.
00:13:04.41\00:13:05.75
And, you know, this
hard and rigid approach
00:13:05.78\00:13:07.88
that's unfeeling
is not a good signal
00:13:07.92\00:13:10.95
to throw it to around citizens.
00:13:10.99\00:13:13.39
Right, to throw back
00:13:13.42\00:13:14.76
to the 18th century
methods of capital punishment
00:13:14.79\00:13:18.49
is a very scary concept.
00:13:18.53\00:13:20.50
Right.
00:13:20.53\00:13:22.43
Anyhow, your article continues,
00:13:22.46\00:13:27.17
that's what you were talking.
00:13:27.20\00:13:28.60
What's the flip
side of this story?
00:13:28.64\00:13:33.31
Well, very interestingly,
00:13:33.34\00:13:35.68
just a few weeks later,
00:13:35.71\00:13:37.98
I think less than
maybe six weeks later,
00:13:38.01\00:13:41.28
there was another case
on almost identical facts.
00:13:41.32\00:13:46.02
This happened in
Texas, the prisoner...
00:13:46.05\00:13:49.52
By the way, Texas
pops up disturbingly
00:13:49.56\00:13:51.69
often on executions basically.
00:13:51.73\00:13:54.43
Yes, that's why this case
is interesting, particularly,
00:13:54.46\00:13:58.47
well, one among many reasons.
00:13:58.50\00:14:01.54
But this case was
almost identical facts,
00:14:01.57\00:14:04.94
except that this
prisoner was a Buddhist.
00:14:04.97\00:14:08.34
There were Christian
and Islamic chaplains
00:14:08.38\00:14:13.31
at the prison,
00:14:13.35\00:14:14.68
but he wanted his
Buddhist spiritual advisor
00:14:14.72\00:14:17.65
to be with him.
00:14:17.69\00:14:19.02
And this was denied based
on the former case, Dunn v Ray.
00:14:19.05\00:14:23.16
I don't think I named it before.
00:14:23.19\00:14:25.89
So the court in that
case said based on Dunn v Ray,
00:14:25.93\00:14:29.96
he doesn't have a
right, blah, blah, blah.
00:14:30.00\00:14:31.77
Incredible, incredible.
00:14:31.80\00:14:33.27
Before we continue on
that, let's take a short break.
00:14:33.30\00:14:35.67
We'll be back.
00:14:35.70\00:14:37.04
Stay with us in very
interesting court case.
00:14:37.07\00:14:40.28