Participants:
Series Code: LI
Program Code: LI190436A
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00:25 Welcome to the Liberty Insider.
00:27 This is a program designed to bring you up-to-date 00:31 on some of the logic and the developments 00:33 on religious liberty, 00:35 separation of church and state primarily, 00:37 on religious liberty developments in the US 00:39 and around the world. 00:41 My name is Lincoln Steed, editor of Liberty magazine, 00:44 and my guest on this program is Attorney Sonia DeWitt, 00:48 distinguished by also being a Liberty author. 00:52 And I know 00:54 you've got a lot of thoughts on different things 00:58 and one of the articles you read recently, 01:02 I found quite troubling. 01:04 And ironically, it had nothing to do with my faith. 01:07 You told the story of a recent prisoner execution 01:12 in the US of a Muslim 01:14 and how he ultimately was denied the right of an imam 01:19 to be present at his execution. 01:20 That's pretty bad. Yes. 01:22 It's your last moment on earth, 01:25 you know? 01:26 We usually think of the priest, 01:28 for the Catholics shriving someone, 01:31 you know, at the last moment 01:32 or the chaplain in the military bending over 01:35 and giving those last words, that's the last charity, 01:38 even if it's your worst enemy, right? 01:39 Right. 01:40 You at least be kind to them. 01:42 You give them a Bible or whatever. 01:43 But here, it's withheld by government edict, right? 01:45 Right. 01:47 Now, what led to such a thing in the United States? 01:49 Well, that's an interesting question, 01:52 and I don't really know the answer. 01:54 I don't know why the court ruled the way it did. 01:56 There's been a lot of speculation about that. 01:59 I know why they said they ruled the way they did, 02:02 but I don't believe it. 02:03 So recount it again. Okay. 02:04 I sort of hopscotched in the middle of the story. 02:07 Just to get people's attention, but what happened? 02:09 So Dominique Ray 02:10 was a Muslim prisoner in Alabama 02:13 who is being executed? 02:16 What was his crime, by the way? 02:17 I'm sure, murder or something? 02:19 Murder, yes. 02:20 But I don't remember 02:22 the circumstances of the murder. 02:23 It was pretty brutal 'cause most capital crimes are brutal. 02:25 Yeah. 02:26 But regardless of that, 02:30 the prison had a policy that only allowed... 02:33 They had a Christian chaplain, no other chaplains. 02:36 They only allowed the Christian chaplain 02:38 to be present in the chamber. 02:41 Other people could watch from the viewing room, 02:43 but only the Christian chaplain was allowed in the chamber. 02:45 I have a question. 02:46 I read your article, but I don't remember this. 02:48 When did he convert to Islam? 02:51 I don't remember. 02:53 Was it in prison? 02:55 I don't remember. 02:56 I don't know 02:57 if that was a factor in the case. 02:59 It just occurred to me. 03:00 It doesn't change the legal situation, 03:02 but it may explain the resistance 03:05 if he had been a convert in prison 03:07 because I know the authorities are very troubled 03:10 against recruitment to radical Islam in prisons. 03:14 Well, I don't think that that was a factor. 03:16 It certainly wasn't a factor in the circuit court decision 03:18 because the 11th circuit, which in Alabama, 03:21 as you can imagine, 03:22 is one of the most conservative circuits. 03:24 Yeah. 03:25 So their decision was very strong. 03:28 They basically said, it's clear in the Constitution, 03:32 which it is, under laws, 03:35 under decisions that go back 70 years, 03:38 that the government can't discriminate 03:40 between religions, 03:41 that it has to treat all religions equally. 03:45 So that decision by the circuit court 03:48 was very, very clear. 03:51 So it went up to the Supreme Court, 03:54 and the Supreme Court basically, 03:56 the majority decision was essentially one paragraph 04:00 saying his appeal was not timely. 04:03 Now that decision was, 04:06 in my opinion, and many people, 04:08 many commentators I've read, 04:10 completely disingenuous 04:13 because although he knew 04:15 he was going to be executed back 04:17 in November, 04:19 he only became aware 04:20 that his request to have the imam 04:22 in the chamber was denied on January 23... 04:25 Too close for the appeal, right? 04:27 He appealed it on January 28. 04:29 So he waited less than five days. 04:31 So there is really no... 04:33 And this is what the dissent... 04:36 Elena Kagan wrote the dissent. 04:38 And she pointed out 04:40 that their timeliness argument really didn't make any sense, 04:43 but that was the only rationale they gave. 04:46 So the implication was clear. 04:48 And Kagan wrote a very clear dissent 04:50 as well talking about how... 04:54 Citing the multiple cases 04:56 that say you can't discriminate 04:57 based on somebody's religious beliefs. 05:02 And, of course, 05:04 the majority ignored it and he died without the imam. 05:08 So that was a very, very disturbing. 05:10 But I don't even understand the timely argument 05:13 on certain things where it's an inherent right. 05:18 I'm sure there was a chaplain in close proximity. 05:21 Couple of hours before the event, 05:23 they could have easily gotten someone. 05:25 Well, there was also discussion. 05:26 So that's an argument of protocol 05:28 on a principle that should be automatic. 05:31 Well, yes, 05:33 and you find the court doing that a lot 05:36 when they want to dodge the merits of an issue. 05:41 They will rely on procedural grounds 05:44 that happened in the Masterpiece Cake, 05:46 by the way, that it was a decision 05:48 made on procedural grounds, not on the merits. 05:50 Yeah, I know. And so that's why... 05:52 And we can talk about that elsewhere, right? 05:54 On that cake thing, very little was settled. 05:57 And so I understand that they only, 05:59 not only, they primarily were favorable 06:02 to the cake baker because he had been vilified 06:04 after the fact by some gang groups. 06:06 Right because statements that were made 06:08 by the antidiscrimination organization. 06:09 Yeah, so it really doesn't settle anything. 06:10 So it was not. 06:12 It was not a decision on the merits. 06:14 So they like to avoid making decisions on the merits 06:16 when the merits are uncomfortable. 06:18 So in this case, they used timeliness, 06:20 which is clearly, in my opinion, 06:22 not at all a viable explanation. 06:25 The other issue in the case that was very interesting 06:28 was strict scrutiny, 06:32 which is the highest level of constitutional review. 06:36 Strict scrutiny means that it has to be narrowly tailored, 06:40 that means that it's the most narrow thing 06:43 that you can do to restrict somebody's rights. 06:45 And it also has to be the least restrictive means. 06:48 Yeah. 06:49 So the circuit court's opinion pointed out clearly 06:53 that this... 06:54 What the prison was trying to do 06:57 didn't meet either of those criteria. 07:00 So it was clear that they didn't meet 07:02 the constitutional standard. 07:04 In fact, they didn't even really try... 07:06 They didn't meet the fairness state. 07:08 They didn't give any real option 07:12 to the prisoner, 07:14 other than just having the Christian chaplain 07:17 or not having anyone at all. 07:19 Yeah. 07:20 And they didn't give reasons and that's... 07:22 Constitutional review requires 07:25 that you justify the decision that you're making. 07:28 Yeah. I've got to admit... 07:30 Personally, that bothered me more than 07:32 almost any other article I've read 07:35 because I understand, 07:36 you're explaining the legal line, 07:38 but, you know, executed man, 07:40 you know, maybe it's more holy than anything. 07:44 But an idea, a last cigarette or whatever, 07:48 that's the most severe thing 07:49 that a government can do to someone, 07:51 take away their life. 07:53 And here, you're not going to show them 07:54 this modicum of humanity at that last moment, 07:58 deprive them there. 08:01 Religion is close to the person's very soul, 08:05 right? 08:06 You've deprived them of that dignity. 08:07 Yes. 08:09 I just think it's a gross injustice 08:11 and the most prejudice slack against another human being. 08:15 Well, yes. 08:16 And as the circuit court pointed out, 08:18 the prison didn't even really make a good attempt 08:21 to justify 08:22 why they couldn't have the imam in the chamber. 08:25 They said, the circuit court said, 08:27 they could potentially justify it, 08:29 but they would have to make a showing 08:31 of why that it's somehow affected security. 08:36 There was some discussion about 08:37 how the chaplain was trained in execution procedures. 08:42 But there was no discussion of why the imam 08:44 couldn't have received the same training. 08:46 But I can think of a thousand variants. 08:48 Most executions, aren't they still witnesses? 08:52 Yes, they're witnesses in the viewing room. 08:55 Right. 08:56 I didn't know this whole story, 08:57 but even as the most minimal thing, 08:59 they could have had some of his fellow faith 09:03 and other imams and all are sitting there 09:05 to be a support. 09:07 Well, to be clear, 09:09 the imam was allowed in the viewing room. 09:11 He just wasn't allowed in the chamber. 09:14 So that's... 09:15 Well, that's at least something. 09:16 Yeah. 09:18 But this doesn't fully... It doesn't... 09:19 No, because the Christians... 09:20 Even partially satisfy the legal requirement. 09:22 Because the Christians had the opportunity 09:25 to have their Christian chaplain 09:27 in the viewing room, I'm sorry, in the chamber. 09:29 Now was the imam allowed in his cell closely before? 09:33 I believe so. 09:34 Yeah. 09:35 But not to have someone there by your side 09:39 at the moment of execution, to me, 09:41 that's where the cruelty comes in. 09:43 Yeah, that's a lonely moment. 09:45 So that and even more than that, 09:49 the implication was, 09:51 at the time, and I believe this 09:53 and many other commentators had similar views 09:57 that the court was essentially thumbing its nose 10:00 at the principle of non-neutrality 10:03 that government is not supposed to discriminate 10:06 between religious faiths. 10:08 So that appeared... 10:11 It appeared that the court was essentially 10:14 just doing away with that, or at least by implication, 10:18 they were ignoring that whole line 10:22 of legal argument. 10:24 Have you read any of their comments? 10:28 I don't... 10:29 They didn't really make comments. 10:31 The decision was so minimal. 10:33 And well, 10:34 Gorsuch made some really nasty comments 10:38 in his decision in a subsequent case 10:41 about how defendants shouldn't use these bogus means 10:47 to try to delay their executions, 10:49 and it was real nastiness. 10:55 This was a case that somebody was basically tortured to death 10:58 because of their condition, 11:00 reacted to the lethal injection. 11:03 And he said that that was okay 11:05 because that was okay under the original but... 11:07 Well, it's worth mentioning 11:09 that the US is somewhat out of sync 11:11 with at least the rest of the civilized world 11:14 in executions of these notes or any execution. 11:17 Right. 11:19 I know, for many Protestants, 11:22 we get our back up a bit 11:23 because the pope is sort of taken so publicly 11:26 an anti-execution stance, 11:28 but the reality is the Western world 11:30 doesn't see this as a fully appropriate way 11:33 to deal with the... 11:35 Well, there are a lot of problems 11:36 with the concept of execution in general... 11:40 Not least with DNA testing. 11:42 Yes, yes. 11:44 People who have been freed after decades 11:47 of imprisonment... 11:48 On death row, yeah. 11:50 When it was determined that they were innocent. 11:52 Yeah. 11:53 Yes, that is. 11:55 And also, their racial components 11:57 to why people or how people are convicted. 12:00 So it's... 12:03 The death penalty is a problematic issue. 12:06 I mean, it's very obvious if anyone thinks it's true, 12:09 you and I were talking privately 12:10 about the American War of Independence 12:15 and the role of the convicts from England 12:18 and then Australia being settled. 12:20 And I made the comment, which I know is the fact 12:22 that there was a class war in England at the time. 12:26 But that was that time, 12:27 but there's a class war in this country 12:29 and in most western countries, 12:31 and the prisoner makeup reflects that. 12:36 A very wealthy person for any number of reasons 12:39 is not very likely to end up on death row. 12:42 Right. 12:43 So it's the less fortunate 12:48 that suffer this and, 12:50 you know, I'm not willing to say 12:52 and, you know, we're not putting a political position, 12:55 but I think the death penalty 12:57 should be looked at long and hard 12:59 in modern civilizations or modern countries. 13:01 Well, certainly the way 13:03 it's administered should be looked at. 13:04 Yes. 13:05 And, you know, this hard and rigid approach 13:07 that's unfeeling is not a good signal 13:10 to throw it to around citizens. 13:13 Right, to throw back 13:14 to the 18th century methods of capital punishment 13:18 is a very scary concept. 13:20 Right. 13:22 Anyhow, your article continues, 13:27 that's what you were talking. 13:28 What's the flip side of this story? 13:33 Well, very interestingly, 13:35 just a few weeks later, 13:38 I think less than maybe six weeks later, 13:41 there was another case on almost identical facts. 13:46 This happened in Texas, the prisoner... 13:49 By the way, Texas pops up disturbingly 13:51 often on executions basically. 13:54 Yes, that's why this case is interesting, particularly, 13:58 well, one among many reasons. 14:01 But this case was almost identical facts, 14:04 except that this prisoner was a Buddhist. 14:08 There were Christian and Islamic chaplains 14:13 at the prison, 14:14 but he wanted his Buddhist spiritual advisor 14:17 to be with him. 14:19 And this was denied based on the former case, Dunn v Ray. 14:23 I don't think I named it before. 14:25 So the court in that case said based on Dunn v Ray, 14:30 he doesn't have a right, blah, blah, blah. 14:31 Incredible, incredible. 14:33 Before we continue on that, let's take a short break. 14:35 We'll be back. 14:37 Stay with us in very interesting court case. |
Revised 2019-05-16