The state of Alabama has executed Domineque Ray, a Muslim prisoner, without
granting his request to have an imam present with him at his death.
Ray’s execution followed a decision by the U.S. Supreme Court vacating a stay of
Ray’s execution that was entered by the U.S. Court of Appeals for the Eleventh Circuit on
February 6.
The Supreme Court, in a two-paragraph opinion, explained that, on November 6,
2018, Alabama scheduled Ray’s execution date for February 7, 2019. It then reasoned that
because Ray waited until January 28, 2019 – or what the Court referred to as the “last[]
minute” – to seek relief, it would vacate the stay put in place by the Eleventh Circuit.
Not all justices agreed with the Court’s decision.
Justice Elena Kagan wrote an opinion, in which Justice Ruth Bader Ginsburg,
Justice Stephen G. Breyer, and Justice Sonia Sotomayor joined, dissenting from the
majority’s decision to vacate the stay granted by the Eleventh Circuit.
The dissent explained that the Holman Correctional Facility, the Alabama prison
where Ray was held and scheduled to be executed, regularly allowed a Christian chaplain
to be present in the execution chamber. However, the dissent continued, Ray was Muslim
and the prison refused his request to have an imam attend to him in the last moments of his
life.
The dissent pointed out that the Eleventh Circuit concluded that there was a
substantial likelihood that the prison’s policy violated the First Amendment’s
Establishment Clause, and stayed Ray’s execution so it could consider his claim on the
merits – but that the majority of the Supreme Court reversed that decision and permitted
Ray’s execution to go forward.
The decision by the majority of the Supreme Court to vacate the stay was, in the
dissent’s view, “profoundly wrong.”
The dissent explained that the “clearest command” of the Establishment Clause was
that “one religious denomination cannot be officially preferred over another.” In the
dissent’s view, Alabama’s policy did just that because a Christian prisoner could have a
minister of the prisoner’s own faith accompany the prisoner into the execution chamber to
say last rites, but if an inmate practiced “a different religion – whether Islam, Judaism, or
any other – [the prisoner] may not die with a minister of [the prisoner’s] own faith by [the
prisoner’s] side.”
According to the dissent, that treatment “goes against the Establishment Clause’s
core principle of denominational neutrality.”
To justify what the dissent characterized as “religious discrimination,” the dissent
said that Alabama had to show that its policy was “narrowly tailored to a compelling
interest.” The dissent conceded that prison security was an interest of that kind, but it
pointed out that Alabama had offered no evidence to show that its “wholesale prohibition
on outside spiritual advisers” was necessary to achieve that goal. The dissent said:
Why couldn’t Ray’s imam receive whatever training in execution protocol the
Christian chaplain received? The State has no answer. Why wouldn’t it be
sufficient for the imam to pledge, under penalty of contempt, that he will not
interfere with the State’s ability to perform the execution? The State doesn’t say.
The dissent pointed out that the only evidence Alabama had offered was “a
conclusory affidavit” declaring that its policy was “the least restrictive means of
furthering” its interest in safety and security. In the opinion of the dissenting justices, that
was “not enough to support a denominational preference.”
The dissent said that Ray put forward a “powerful claim that his religious rights”
would be violated when Alabama put him to death. The dissent asserted that the Supreme
Court should have permitted the Eleventh Circuit to hear that claim in full, but that it
refused to allow that so Alabama could “meet its preferred execution date.”
Nelson Madden Black Comment
This issue is unlikely to simply disappear. Numerous commentators have declared
that Alabama’s practice of permitting Christian ministers but not Muslim ministers in these
circumstances violates the Establishment Clause. Future litigation undoubtedly will seek to
challenge the state’s practice, though there have been reports concerning a possible change
in the state’s policy, removing clergy of all faiths from the death chamber.