Justice Elena Kagan. Credit: Diego M. Radzinschi / NLJ

Justice Elena Kagan’s stinging dissent last week backing an Alabama death row inmate who was executed despite an unresolved religious discrimination claim highlighted her evolving role as a key voice in religion-related cases at the U.S. Supreme Court.

The high court’s conservative majority permitted the execution of a Muslim inmate named Domineque Ray, who had argued his imam should be permitted to be with him in the death chamber at the end of his life. The justices, ruling 5-4, overturned a stay of execution entered by the U.S. Court of Appeals for the Eleventh Circuit.

The appellate court had concluded there was a “substantial likelihood” that the Alabama prison’s policy allowing only Christian clergy to accompany inmates violated the establishment clause. The Supreme Court, denying the stay, gave no reason but its order did suggest the inmate’s claim was a last-minute attempt to delay execution. Kagan called the decision “profoundly wrong” in a dissent that was joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Under Alabama policy “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” Kagan wrote. “But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the establishment clause’s core principle of denominational neutrality.”

Conservative and liberal critics, forming an unusual alliance, have widely assailed the Supreme Court’s order allowing the inmate’s execution to go forward despite his pending claim of religious discrimination.

Ginsburg, as the senior justice in dissent, assigned the opinion to Kagan. The move marked the latest instance of Ginsburg picking Kagan to write on sensitive issues involving religion.

Kagan’s first dissent as a new justice was assigned in 2011 by Ginsburg in the case Arizona Christian School Tuition Organization v. Winn. A group of taxpayers challenged an Arizona tax credit for contributions to tuition organizations. Those groups used the money for scholarships for, among others, religious schools. The majority, led by Justice Anthony Kennedy, said the challengers lacked standing because they were fighting a tax credit, not government spending.

“Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity,” Kagan said in her dissent.

A more direct religion challenge came three years later in Town of Greece v. Galloway. A 5-4 majority ruled that the town’s practice of opening its board meetings with prayers by clergy members did not violate the establishment clause. Ginsburg turned again to Kagan to represent the views of the dissenters.

The town board, Kagan said, “did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions.”

At the end of that term, Ginsburg, in an interview with The National Law Journal, explained why Kagan was her choice.

Justice Ruth Bader Ginsburg. Credit: Diego M. Radzinschi / NLJ

“She was an outsider even in her own religion in that she had to fight to be an insider. She had to fight to be the first girl bat mitzvahed in her Orthodox synagogue. She was insistent. She was not bat mitzvahed on a Saturday morning as the boys did; they made it a Friday night service. I think she has that sensitivity. It’s something that my colleagues don’t really get because they haven’t been in that situation.”

Kagan once called her bat mitzvah in 1973 “the great Jewish experience of my youth.” Kagan last year recalled her youth in Manhattan as her mother “would go from synagogue to synagogue to synagogue to find a rabbi she liked.”

Last term, Kagan took a nuanced view of the role of religion in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The court faced a Colorado baker who had refused, based on religious beliefs, to make a wedding cake for a same-sex couple. In a concurring opinion, Kagan, joined by Breyer, said she agreed with the majority that a Colorado civil rights commission had failed to give “neutral and respectful” consideration to the baker’s religious beliefs.

But if the state’s anti-discrimination provisions had been applied neutrally, the baker ran afoul of the law’s “demand that customers receive ‘the full and equal enjoyment’ of public accommodations irrespective of their sexual orientation,” Kagan said. Ginsburg wrote the dissent, joined by Sotomayor.

The justices this month will face another major religion case when they hear arguments Feb. 27 in a challenge to a 93-year-old war memorial cross on public land.


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