Domineque Ray died at 10:12 p.m. Thursday night, by lethal injection at the Holman Correctional Facility in Atmore, Alabama. The execution was allowed to proceed after the U.S. Supreme Court declined to stay it earlier in the day on Thursday. The request for the stay came via a religious argument—the prison’s policy only allowed a Christian chaplain into the execution chamber. Ray’s attorneys argued this policy violated his religious freedoms—Ray was Muslim.
By a 5–4 vote, the court vacated the stay. As NPR later reported, the Christian chaplain was not in the execution chamber, at Ray’s request. He died with his imam, Yusef Maisonet, witnessing from an adjoining chamber. Maisonet said there are prayers required of a Muslim before he dies. Maisonet told AL.com, “We want to make sure his last words are, ‘There is no God but God, and Muhammad is his prophet.’ ” He was not permitted to so do.
As Mark Joseph Stern noted earlier this week, Ray’s guilt was not in doubt. He was sentenced to death for the 1995 rape and stabbing of 15-year-old Tiffany Harville. Before that he had received a life sentence for stabbing two brothers, Reinhard and Earnest Mabins, to death. The only reason the 11th U.S. Circuit Court of Appeals had granted the stay on Wednesday was in response to what the panel deemed “a powerful Establishment Clause claim.” If the First Amendment’s Establishment Clause means anything at all, noted the appeals court, it must mean that the state may not create a policy favoring Christian chaplains over those of any other faith. As the appellate court also noted, “We can think of no principle more elemental to the Establishment Clause than that the states and the federal government shall not favor one religious denomination over another.”
Time and time again the courts have demanded religious neutrality from the state, whether the context is schools, government programs, or religious displays. Alabama acknowledges that since 1997, the Rev. Chris Summers has witnessed nearly every execution in the state, kneeling and praying with prisoners just before they are killed. But they would not allow Ray’s imam to do the same.
As the 11th Circuit noted, this was not a complicated question: “The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.” The state argued that only the chaplain was allowed to be present because he was a prison employee and “a member of the execution team.” He was trained in execution protocols—but prison officials would not explain what such training demands, or why Ray’s imam could visit him regularly in prison but not be with him at the time of execution. The appeals court was bothered by the paucity of briefing and had ordered a fast-track hearing to better understand the reasons for the policy. The state agreed that the Christian chaplain need not be present and, feeling that it had cured the constitutional defect, asked the high court to vacate the stay. Ray’s attorneys responded in pleadings that “Mr. Ray does not dispute that the state has an interest in enforcing its judgments. But it does not have an interest in doing so unconstitutionally.”
The Supreme Court, in its brief order reversing the stay, disagreed. In Dunn v. Ray, the majority decided that Ray’s constitutional complaints were just the subject of some really bad timing: “On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay.” That’s because, as the court tersely notes, “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”
Justice Elena Kagan wrote a powerful dissent in which she was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. As she notes, “given the gravity of the issue presented here, I think that decision profoundly wrong.”
Alabama is, according to Robert Dunham, executive director of the Death Penalty Information Center, the only state where the execution protocol calls for only a Christian chaplain to be present in the chamber. Kagan wrote, echoing the appeals court, that “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Nobody disputes that Alabama’s policy does this. In order to survive the strict scrutiny such a policy demands, the state needed to show that its policy is narrowly tailored to meet a compelling interest, which the state argued was prison security. Back to Kagan:
I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. … The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security.
Moreover, Kagan rejects the majority’s assertion that Ray should have known on Nov. 6 that he would be denied access to an imam. The Alabama statute in fact provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice “may be present at an execution.” The prison refused to give Ray a copy of its own protocols—so he only learned about the Christian chaplain rule on Jan. 28 and petitioned five days later. Too bad, says the court, the state’s urgent need to carry out the execution overcomes Ray’s religious freedom. Kagan concludes, pointedly: “Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.”
Religious liberty enthusiasts may claim that this case turned not on the fact that a Muslim man did not want to have his last rites delivered by a Christian, and that instead the only issue is the court’s disfavor for last-minute stays of execution. The injury to a death row inmate who may not have the spiritual adviser of his choosing is seemingly lesser than the injury to the state that needs to kill him immediately. This is a court that has staked its moral legitimacy on the proposition that religion, above all, is at the very core of humanity, to be elevated in all instances no matter the competing interests. In so many faiths, there is no more sacred moment than entry and departure from this life. But never mind. For a court that cannot bear the thought of a religious baker forced to frost a cake in violation of his spiritual convictions to be wholly unaffected at the prospect of a man given last rites by a member of another faith borders on staggering. The court that had no problem with a transparently anti-Muslim immigration ban, promised and performed as an anti-religious measure, looks more and more like it has two standards for protecting religious liberty.
Thursday night, after Ray died, alone without his spiritual adviser present, Alabama Gov. Kay Ivey issued a statement saying, “It is my prayer that, with tonight’s events, Miss Harville’s family can finally have closure.” There was really only one person in Alabama prohibited from praying to his creator as he would have sought to do last night. It was arguably the person who needed it the most.
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