Amy Coney Barrett joins Liberals in an execution based on religious freedom.

Late Thursday night, the Supreme Court blocked the execution of Willie Smith in a surprising and somewhat enigmatic decision that divided the court into unusual lines: Judge Amy Coney Barrett joined the three Liberals of the court to determine that Alabama Smith, a pious Christian, must let pastor into the execution room when he is killed. The decision suggests that Barrett may apply the principles of religious freedom more consistently than some of her conservative colleagues, even if it leads to a result favored by progressives and opposed by conservatives. The essence of the court order, however, is a mystery: because it is a “shadow decision”, we do not know who will cast the fifth vote to stop Smith’s execution.

Dunn Teen Smith is the latest in a series of cases asking whether the government may ban prisoners on death row from bringing a religious counselor to the execution room. In 2019 is notorious Dunn v. Rayallowed the Alabama court to exclude a Muslim prisoner’s imam from the room by a 5-4 vote. All four liberals differed. They accuse Alabama of religious discrimination in violation of the First Amendment because it caused the inmates to adopt Christian chaplain to accompany their last moments, but not an imam. Less than two months later, the court apparently reversed the course: with a 6-3 vote, it banned Texas from executing a Buddhist prisoner without the presence of its spiritual adviser. This time, Judge Brett Kavanaugh, along with Chief Justice John Roberts, noted that Texas allowed Christian chaplains to accompany prisoners in their final moments; if the state allows religious figures of one faith in the death chamber, Kavanaugh concluded, he must also allow those of other faiths in the chamber.

In response to these decisions, Alabama simply excluded everyone religious advisers of prisoners who accompany them while they are being killed. Willie Smith, another prisoner in Alabama’s death struggle, attacked this new government under a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The law prohibits prisons from placing a ‘substantial burden’ on a prisoner’s ‘religious practice’ unless the burden is strictly scrutinized. To meet the standard, the prison’s restriction on religion must be ‘the least restrictive’ to promote a ‘compelling government interest’ – an ‘extremely demanding’ standard. Smith’s claim under RLUIPA is therefore wider than previous inmates’ claims under the First Amendment. He does not have to prove that Alabama favored other religions over his, but only that the state’s total ban on religious figures in the death chamber is not the “least restrictive means” of maintaining prison safety.

Judge Elena Kagan – along with judges Sonia Sotomayor, Stephen Breyer and Barrett – endorsed Smith’s argument on Thursday night. Security, Kagan wrote, is definitely a compelling government interest. But “previous practice in Alabama and elsewhere shows that a prison can ensure safety without barring all clergy from the execution room.” Alabama has argued that he cannot trust clerics who are not affiliated with the state or the prison to enter the room – but that Kagan wrote is untrue. She pointed out that many states, as well as the federal government, “allowed spiritual members without commitment to the government to attend the execution of a prisoner” without disruption.

Alito or Gorsuch (or both) should have voted with Barrett and the Liberals judges.

“Nowhere, as far as I can tell, has the presence of a clergyman (whether appointed by the state or independently) disturbed an execution,” Kagan explained. “Alabama can take a number of measures to ensure that a clergyman will act responsibly during an execution,” including a background check, an interview and a promise with a fine on which he will abide by the rules. “What the state cannot do,” she concluded, “in accordance with strict scrutiny, is simply the assumption that every clergyman will be unreliable – or in other words, that only the strictest restriction can work.”

Kavanaugh, along with Roberts, disagreed. “Because the state’s policy is non – discriminatory and in my view serves the overriding interests of the state to ensure the safety, security and solemnity of the execution space,” he wrote, he would have allowed the execution to proceed. Judge Clarence Thomas also noted his disagreement. This leaves us with one big, unanswered question: Who cast the fifth vote to stop Smith’s execution? According to the process of elimination, we know that it was Samuel Alito or Neil Gorsuch. But in 2019, in an opinion Gorsuch added, Alito expressed skepticism against the argument that RLUIPA requires prisons to have spiritual advisers brought into the death chamber. Alito gave the state’s claim that he could not trust an outside spiritual adviser to behave during the execution. And he speculates that ‘allowing members of the clergy and spiritual advisers to enter the execution room outside of official chaplains’ ‘could create an unworkable precedent’.

It is clear that Alito or Gorsuch (or both) have changed their minds from time to time, because somebody brings the casting vote along with Kagan, Sotomayor, Breyer and Barrett to stop Alabama from killing Willie Smith. But in a “shadow dossier” decision like this, issued without full information or arguments, the judges do not have to record their votes. The Supreme Court therefore amended the law on religious freedom and the death penalty without giving a majority opinion for the lower courts to follow – and without telling the public what justice provides the decisive vote to protect Smith’s rights. (Smith will still be killed, albeit with the presence of a pastor who, according to Smith’s words, ‘will lighten his struggle if he passes by’ and help him ‘express his repentance to God in the right way’ ‘.)

Apart from this puzzle, the most important aspect of the court’s decision is in Dunn Teen Smith is probably Barrett’s alliance with the remaining liberal judges. There is no doubt that Barrett is very conservative, but her few votes so far do indicate that she can distinguish herself from the court’s more nihilistic and biased right-wing judges. We know that justice deeply believes in religious freedom. But all judges want to consider it, and not all of them apply it consistently – especially if it conflicts with other conservative priorities such as facilitating quick execution. Barrett, however, remarked, voted to move other executions over the liberal differences of opinion. But she drew the line over Alabama’s extreme policies. With this court, progressives must achieve any victory they can. And Dunn Teen Smith is a small but significant triumph for a principled application of true religious freedom.