Alabama had asked the judges to overturn a lower court decision and allow the execution to proceed without the adviser in the room.
The court rejected the request.
The exact vote count was unclear, although Judge Elena Kagan – accompanied by Justices 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 “had the right to ban Alabama from executing Smith without his predecessor by his side,” and dismissed concerns about the security of the Alabama Department of Corrections.
“The law guarantees Smith the right to practice his faith without undue interference, even when the state puts him to death,” Kagan wrote.
She said Alabama could take “any number of measures” to ensure that a member of the clergy will act responsibly during an execution, including conducting a background check with the minister.
Chief Justice John Roberts and Brett Kavanaugh explained why they would have granted Alabama’s request, citing the state’s security concerns.
Judge Clarence Thomas did not agree with that opinion, but simply noted that he too would have granted Alabama’s request.
Justice Samuel Alito and Neil Gorsuch were silent on their voices.
Smith is on death row for the 1991 murder of 22-year-old Sharma Ruth Johnson who he shot in the head for vowing not to disclose his crimes, according to court documents.
The issue has divided the court bitterly in the past
It is the fourth time in two years that the judges have been asked to consider religious liberty claims made by prisoners who want their spiritual advisers to carry out their executions – and the issue has bitterly divided judges in the past.
In Smith’s case, the Alabama Department of Corrections told judges in court documents that its policies are necessary to maintain “the security and solemnity” of the execution.
The department does not allow any member of the public to enter the execution chamber, but does allow an outside spiritual adviser to visit the inmate on the day of the execution in the prisoner’s cell and immediately before the inmate enters the execution chamber. The spiritual adviser can attend the execution in the adjacent viewing room.
Smith’s attorneys cited a federal law that prohibits the government from imposing a significant burden on a prisoner’s religious practice unless the government demonstrates that it is the least restrictive way of pursuing an overriding government interest.
Smith’s attorneys argued that Alabama had not considered less restrictive alternatives and noted that in recent federal executions, the government has allowed a spiritual adviser of the inmate’s choice to be in the room.
In 2019, Domineque Ray, a devout Muslim in Alabama, asked for his spiritual advisor to attend, but at the time ADOC was not employing any Muslim chaplains. The Supreme Court allowed the execution to go ahead, citing concerns about the timeliness of the prisoner’s files.
Judge Kagan, accompanied by the other three liberals in court, called the decision “profoundly wrong” and said Ray had made a “strong claim” that his religious rights will be violated by the state’s execution.
Six weeks later, a Buddhist prisoner in Texas sought similar relief. The court has granted his request. At the time, Judge Brett Kavanaugh wrote his own opinion, accompanied by no other justice. He noted that while Texas allowed Christian or Muslim prisoners to have state-employed Christian or Muslim religious advisers, it did not employ Buddhist advisers.
“As this Court has repeatedly held, governmental discrimination against religion – in particular discrimination against religious persons, religious organizations and religious speeches – is unconstitutional,” Kavanaugh wrote.
He proposed a way forward for the states. They could allow all inmates to have a religious adviser of their religion in the execution room, or they could allow inmates to have only a religious adviser in the viewing room, not in the execution room.
After that order, the Alabama Department of Corrections changed its protocols. Only Texas and Alabama currently have an explicit ban on counselors in the actual room.
Eric Rassbach of the conservative Becket Fund for Religious Liberty praised the court’s ruling in Willie Smith’s case.
“If Willie Smith has to leave this world, he shouldn’t leave it all alone,” Rassbach said. “Prisoners should be able to make peace with their Maker in their final moments,” he said.