States do NOT have to supply Muslim chaplains for condemned Muslims
Domineque Ray raped and murdered a 15-year old girl in 1995. For that crime, he was rightly sentenced to die, and he was executed on Feb. 7. (He was also serving a life sentence for the murder of two teenage boys in 1994.)
Apparently, Ray was converted to Islam while in prison. Muslims, incidentally, comprise about one percent of our nation’s population, but nine percent of our prison population. (Given the innate violence inherent in Islamic doctrine, there is a question as to whether we should permit any Muslim chaplains in our prison system at all. Prison is one of the chief recruiting grounds for militant Islamists. But that’s a debate for another day.)
As a Muslim, Ray had hoped to be accompanied by his imam right up until the end. However, for understandable security reasons, Alabama does not allow anyone other than Department of Corrections personnel to be in the execution chamber. A Christian chaplain was available, but Ray didn’t want him there, so no member of the clergy was present as the execution proceeded.
Ray filed a last-minute appeal to the Supreme Court for the presence of his imam but the Court turned him away on a 5-4 vote, divided along ideological lines (the Court said he filed his appeal too late).
Many liberal legal organizations are up in arms over what they perceive to be a denial of his First Amendment rights to religious exercise. Even some Christians have made the same claim on his behalf.
So is there a violation here or not? To answer this question, we must use the Constitution crafted for us by the Founders rather than the grotesquely misshapen one cobbled together by our courts.
The first word in the First Amendment is “Congress.” “Congress shall make no law...” Since Congress is the only branch of government that has the constitutional authority to make legislation (the executive branch enforces the law, and the judicial branch applies the law to disputes before it) the ban on Congress is effectively a ban on the entire federal government.
So the First Amendment of the Founders’ Constitution restrains Congress and Congress alone. Only Congress is forbidden to “establish” a church or “prohibit” the free exercise of religion. So why did the Founders put this kind of restraint on Congress?
Because regulating religious expression was to be none of the federal government’s business. Since the federal government was barred from any kind of interference in religious matters, all was left to the states. As Joseph Story put it in his magisterial Commentaries, “The whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.”
Now the “whole power” over religion means the “whole power,” every bit of it. Not a bit of it was left to the federal government. So properly speaking, what happens inside an Alabama prison is no business of the federal judiciary at all. It’s a matter for Alabama judges and Alabama lawmakers alone to set the parameters for religious exercise.
When this case was first sent to a federal court, the court should have immediately sent it back to Alabama authorities with the explanation that the Constitution has not given them any authority to intrude into this case at all.
The bottom line as far as the federal Constitution is this: If Alabama doesn’t want to permit an imam in the execution chamber, it doesn’t have to.
This case, then, should be the exclusive province of the state of Alabama. So how would Alabama address this case? Here’s how the relevant section of Alabama’s constitution reads (emphasis mine:)
“(b) Government may burden a person's freedom of religion only if it demonstrates that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.”
The prohibition of an attending imam certainly burdened Domeneque Ray’s freedom of religion. But it was done “in furtherance of a compelling governmental interest,” the safety and security of a critical law enforcement procedure, and is therefore perfectly constitutional.
Islam is not a friend to Christian America. We have seen this already in the two new Muslima congresswomen, who have been relentlessly anti-semitic and pro-Palestinian since they took the oath of office. The Muslim Brotherhood, which has chapters on hundreds of our college campuses, has dedicated itself to “eliminating and destroying the Western civilization from within.” The less Islam we have in America the better.