Alabama asked the judges to overturn a lower court ruling and allow the execution to continue without the adviser present in the chamber.
The court denied the request.
The exact count of the votes was unclear, although Judge Elena Kagan – along with Judges Amy Coney Barrett, Stephen Breyer and Sonia Sotomayor – wrote to explain why they voted to block the execution.
Kagan said the 11th Circuit Court of Appeals “is right to prohibit Alabama from executing Smith without his pastor on his side” and she rejected the safety issues of the Department of Corrections in Alabama.
“The law guarantees Smith the right to practice his religion free from unnecessary interference, even at the moment the State kills him,” Kagan wrote.
She said Alabama could take a number of measures to ensure that a clergyman would act responsibly during an execution, including the investigation into the secretary of state.
Chief Justice John Roberts and Brett Kavanaugh explained why they would have granted Alabama’s request, citing state security.
Judge Clarence Thomas did not agree with the opinion, but he merely noted that he would have granted Alabama’s request as well.
Judge Samuel Alito and Neil Gorsuch are silent about their vote.
Smith is on trial for the murder of 22-year-old Sharma Ruth Johnson in 1991 that he shot in the head when she swore that his crimes would not be made public, according to court documents.
Issue has bitterly divided the court in the past
This is the fourth time in two years that judges have been asked to consider claims to religious freedom of prisoners to attend their spiritual advisers for their execution – and the case has divided the judges bitterly in the past.
In the case of Smith, the Alabama Department of Corrections told the judges in court documents that its policy was necessary to preserve the safety and solemnity of the execution.
The department does not allow any member of the public to enter the execution room, but allows an outside spiritual adviser to visit with the inmate the day of the execution in the inmate’s cell and immediately before the inmate goes to the execution room. The spiritual counselor can see the execution in the adjoining viewing room.
Smith’s attorneys have cited a federal law that prohibits the government from placing a substantial burden on the religious practice of a prisoner unless the government proves it is the least restrictive way to advance a compelling government interest.
Smith’s attorneys argued that Alabama was not considering less restrictive alternatives, noting that in recent federal executions, the government has had a prisoner’s spiritual adviser choose to be in the chamber.
In 2019, Domineque Ray, a devout Muslim in Alabama, asked for his spiritual adviser to be present, but ADOC did not employ any Muslim chaplains at the time. The Supreme Court allowed the execution to proceed, citing concerns about the timeliness of custody.
Judge Kagan, along with the other three Liberals in court, called the ruling “deeply wrong” and said Ray had made a “powerful allegation” that his religious rights would be violated as soon as the state killed him.
Six weeks later, a Texas prisoner in Texas sought similar relief. The court granted his request. At the time, Judge Brett Kavanaugh wrote his own opinion along with no other justice. He noted that although Texas allowed Christians or Muslim prisoners to attend a Christian or Muslim religious adviser, there were no Buddhist advisers on staff.
“As this court has repeatedly found, discrimination against religion – especially discrimination against religious persons, religious organizations and religious reasons – is unconstitutional,” Kavanaugh wrote.
He proposed a way forward for the states. They can allow all prisoners to have a religious adviser of their religion in the execution room, or they can allow prisoners to have only one religious adviser in the viewing room, not the execution room.
Following the order, the Department of Corrections in Alabama changed its protocols. Only Texas and Alabama currently have explicit bans on advisers in the real room.
Eric Rassbach of the conservative Becket Fund for Religious Liberty praised the court’s ruling in the Willie Smith case.
“If Willie Smith has to leave this world, he must not leave it alone,” Rassbach said. “Prisoners should be allowed to make peace with their Maker at their last moments,” he said.