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Religious freedom on death row: How a new lawsuit affects a growing debate

SALT LAKE CITY — A new lawsuit could resolve growing conflict over the religious freedom rights of death row inmates, which have been in the spotlight since the Supreme Court issued two controversial and seemingly contradictory orders in recent months.

Charles L. Burton Jr., a Muslim who has been on death row in Alabama since 1992, has sued the state's Department of Corrections for access to an imam in the execution chamber. Under the department's current policy, only a Christian chaplain is available.

"No matter your political or religious perspective, surely we can all agree on the abiding importance of religious liberty at the hour of our death," said James Sonne, director of Stanford Law School's Religious Liberty Clinic in a press release about the case.

Conservative and liberal organizations, lawmakers and legal scholars have criticized inconsistent policies and rulings affecting religious prisoners across the country. Many see the new lawsuit as a chance to clarify the rights of inmates like Burton and ensure proper treatment moving forward.

"This could be the case that resolves the issue once and for all," tweeted Luke Goodrich, vice president and senior counsel for The Becket Fund for Religious Liberty.

Burton's lawsuit comes after the U.S. Supreme Court allowed another Muslim inmate in Alabama to be executed without an imam present.

Domineque Ray, who was also Muslim, requested a stay of execution in January due to the state's chaplain policy. A stay was initially granted by the 11th Circuit U.S. Court of Appeals, which ruled that allowing Christian but not Muslim religious leaders into the execution chamber represented religious discrimination.

“This could be the case that resolves the issue once and for all.”

Luke Goodrich, vice president and senior counsel for The Becket Fund for Religious Liberty

"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 other non-Christians," the ruling explained.

However, on Feb. 7, the U.S. Supreme Court vacated this stay, allowing the execution to proceed. The court's five conservative justices said that Ray had waited too long to express his concerns.

"Because Ray waited until Jan. 28, 2019, to seek relief, we grant the state's application to vacate the stay," read the Supreme Court order.

This decision was widely condemned, including by Justice Elena Kagan, who called it "profoundly wrong."

However, legal experts disagreed on what motivated the decision. Some liberal observers claimed the court had shown anti-Muslim bias, while others felt the justices were worried about appearing to interfere with state-level death penalty decisions at the last minute, the Deseret News reported.

Ray was executed on Feb. 7.

Nearly two months later, the Supreme Court seemed to change its tune, granting a similar request for a stay of execution. Justices decided that Patrick Murphy, a Buddhist death row inmate in Texas, could not be executed until his religious freedom concerns were addressed. At the time, Texas allowed Christian and Muslim chaplains to be in the execution chamber, but not representatives of other faiths.

"The state may not carry out Murphy's execution … unless the state permits Murphy's Buddhist spiritual adviser or another Buddhist reverend of the State's choosing to accompany Murphy in the execution chamber," the Supreme Court said on Mar. 28.

Again, the court faced charges of religious discrimination, as some legal scholars questioned how the same justices could support these divergent orders.

Others, including Goodrich, argued that the shift could be explained by the different ways the two requests for stay of execution were argued.

Ray's case centered on the First Amendment's establishment clause, which mandates equal treatment of faith groups. Murphy's case was more about the First Amendment's free exercise clause, guaranteeing the ability to exercise your religious beliefs, and the Religious Land Use and Institutionalized Persons Act, which prevents the government from unnecessarily interfering with prisoners' religious freedom rights.

The new lawsuit notes the Supreme Court's two recent orders, presenting Burton's case as a chance to sort out ongoing confusion and injustice. It cites the Religious Land Use and Instutionalized Persons Act, the First Amendment's free exercise and establishment clauses and the Alabama constitution's religious freedom amendment.

“Inmates who share the chaplain’s faith may hold his hand and pray with him in their final moments, but that same comfort and prayer is denied to those of other denominations or faiths.”

"The (department's) actions violate two of the most elementary principles of our constitutional democracy, principles that the law requires to be honored even in prison: to be able to practice one's religion free from substantial and unjustified governmental burdens and to be free from governmental discrimination based on one's religion," reads the legal complaint.

Burton, who converted to Islam 47 years ago, is not asking for a stay of execution, as his execution has not yet been scheduled. Instead, he's asking the court to reject Alabama's current chaplain policy and ensure he has access to an imam when he is ultimately put to death.

"Inmates who share the chaplain's faith may hold his hand and pray with him in their final moments, but that same comfort and prayer is denied to those of other denominations or faiths," according to the press release announcing Burton's lawsuit.

Alabama officials have said they limit access to the execution chamber due to security concerns.

As the lawsuit proceeds, state leaders, judges and death row inmates will continue to navigate confusing and sometimes contradictory laws and rulings.

Texas officials have already changed their chaplain policy in light of the Supreme Court's March order. Now, no death row inmate will have access to a spiritual or religious adviser in the execution chamber.

"The policy, which had previously allowed Christian and Muslim chaplains employed by the department to enter the chamber, now forbids anyone besides security personnel from entering," Reuters reported.