Dunn v. Ray (2019) Dissenting and Dunn v. Smith (2021) Concurring (Applications to Vacate Stay/Injunction; Inmate Execution; Religious Freedom)

Audio of Dunn v. Ray (2019) Dissenting; Dunn v. Smith (2021) Concurring (Applications to Vacate Stay/Injunction; Inmate Execution; Religious Freedom)

Tip: Dunn v. Smith (2021) begins around minute 10:06, after the reading of Dunn v. Ray (2019)

In 2019, Alabama had a policy holding that only their approved Christian chaplain was permitted to enter the execution chamber during execution - regardless of the inmate's religious beliefs. When Dominique Ray, a Muslim man, requested that his imam be present instead, Alabama refused - eventually changing their policy to exclude all clergy in the execution chamber. When the Supreme Court was asked to intervene, the application for stay was denied, with only the Court's four liberal justices voting for Ray.

About a month later, a Buddhist inmate asked the Court to intervene in Texas when they wouldn't allow his spiritual advisor into the execution chamber and the Court intervened to allow it - with Justices Kavanaugh and Robert's added vote. Somehow, these two conservative justices had a change of heart in this case.

But, when a third almost-identical case from Alabama appeared before the Court in 2021, Kavanaugh and Roberts once again had another change of heart, only back in the opposite direction, dissenting. In that case, when Willie Smith, a Christian man, asked the Court to intervene after Alabama denied his request for a Christian pastor to enter the execution chamber with him, the Court intervened to allow it. Again, two conservatives voted with the liberal justices; but, this time, they were the newly-seated Justice Barrett and one "mystery" Justice that could have only been Justice Alito or Justice Gorsuch since Kavanaugh, Roberts, and Thomas dissented.

These three cases had nearly identical circumstances. What would have made Kavanaugh and Roberts vote so differently for the Buddhist man, Patrick Murphy? After all, Kavanaugh and Roberts are both Christians who have been accused in the past of being unjustly preferential to the freedom of Christian's first amendment rights over other religions. But, Smith, the third prisoner was the only Christian out of the three. Other than the prisoner's religion and the states they were from, the facts of the three cases were nearly identical save for one other major factor: Patrick Murphy, the Buddhist inmate, was white.

Because the Court did not issue an opinion in Patrick Murphy's case, the only two opinions I can read for you today are those of the two black inmates whom Justices Kavanaugh, Roberts, Thomas, and one other conservative justice voted against both times: Dunn v. Ray (2019) and Dunn v. Smith (2021). These two opinions are very brief, so I will be reading them both this episode.

 

Music by Epidemic Sound