On Aug. 29, 1863, George Kuhne, a private in the Union Army of the Potomac – and a Jew – was marched on to a parade ground at Beverly Ford, Virginia, with four other soldiers – two Protestants and two Catholics.
There, the five, all charged with desertion, were seated at the edge of their coffins, their eyes bandaged and their hands tied behind their backs, as a firing squad shot them to death.
Desertion was a serious problem for the Union Army – some 200,000 cases between 1863 and 1865 were reported, according to Jewish historian Jonathan D. Sarna. That’s why 25,000 troops were assembled to watch as the executions were carried out.
What made these cases notable, though, was that the clergy of the condemned men’s faiths – a Methodist minister, a Catholic priest and a rabbi – accompanied them to the place of execution.
It was likely the first time that the Army of the Potomac, commanded by General George Gordon Meade, the victor at Gettysburg, had brought together clergy of different religions for this purpose, Sarna has written. What Meade taught his troops at Beverly Ford “was an enduring lesson in religious pluralism.”
Today, that lesson is being forgotten.
Earlier this month, the state of Alabama executed by lethal injection Dominique Ray for the 1995 rape and murder of a 15-year-old girl.
Just as Kuhne had a rabbi with him on the parade ground at Beverly Ford, Ray, who is a Muslim, wanted his imam with him in the execution chamber at Atmore, Alabama. That, he did not get.
The Alabama Department of Corrections would only permit a Christian chaplain in the chamber, claiming that the imam posed a security risk because he was not acquainted with the protocol.
Ray challenged that decision and won a stay of execution from a Federal Appeals Court until it was determined whether the case violated The Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
But the Supreme Court ruled 5-4 on Feb. 7 that Ray’s legal challenge had not been timely (he had filed on Jan. 28, 10 days before his scheduled death), so the execution could proceed without the imam in the chamber.
Ray was put to death that evening. He refused a Christian chaplain; the imam watched from another room.
The high court’s three Jewish justices – Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan – all voted to stay the execution. (Justice Sonia Sotomayor also joined their dissent.) Writing for the dissenters, Kagan called the majority ruling “profoundly wrong.”
“A Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” Kagan went on. “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.”
Dahlia Lithwick, senior editor and legal correspondent for Slate.com, who also is Jewish, put it more bluntly: “This was stomach churning.”
It’s hard to imagine how delaying the execution until the imam was briefed on the protocol and properly vetted – if indeed that was the true reason for keeping him out of the chamber – posed such an imposition. Ray would still have met his fate. Justice – if capital punishment constitutes justice – would have been done.
And the Establishment Clause would not have suffered another assault
There have been others. States have proffered discriminatory acts targeting the LGBTQ community under the guise of religious freedom. Parents seeking to adopt or become foster parents have been turned away by state-sanctioned agencies because of their religion. Christian charter schools receive public funding with little, if any, oversight.
The Establishment Clause is under fire.
Freedom of religion is among the most precious rights American Jews possess. It was reaffirmed over 150 years ago on the parade ground at Beverly Ford. It was forgotten this month in Alabama.
We Jews, who know what it’s like to live without religious freedom, forget that right at own risk.
(Lee Chottiner is the editor of the Jewish Louisville Community.)