Opinion

SCOTUS Ignores First Amendment, Allows Alabama to Force Muslim Man to Have Protestant Chaplain at Execution

Late Thursday night, five justices of the United States Supreme Court made a decision that was in equal parts lazy and cowardly. SCOTUS faced a last-minute appeal from an Alabama death row inmate; that appeal wasn’t about the unfairness of death penalty generally, or about the inmate’s innocence, or even about clemency. It was about the inmate’s request to have a religious figure of his choosing by his side during his execution – and about Alabama’s insistence that only religious figures of its choosing would be permitted, even if that meant a Muslim man’s execution would be presided over by a Protestant chaplain.

Domineque Ray was a convicted child-rapist and murderer. He was sentenced to death for his crimes at the Holman Correctional Facility in Atmore, Alabama. Per usual practice, two weeks prior to Ray’s execution date, a prison warden explained the logistics of the execution to the condemned man. At that time, Ray, a Muslim, asked that the imam who had been attending him in prison for several years be present in the execution chamber. The warden refused. The imam would not be present, but the Protestant chaplain would.

Ray sued, demanding that the imam be permitted to remain by his side. The Eleventh Circuit stayed Ray’s execution, finding that the State of Alabama had very likely violated his rights under the First Amendment and the Religious Land Use And Institutionalized Persons Act by substituting its religious for his. In its decision, the Eleventh Circuit reprimanded Alabama several times for what it failed to do; Alabama presented no evidence as to why the imam could not safely be allowed to enter the execution chamber, no evidence as to why the Protestant chaplain was somehow uniquely qualified to do so, and no evidence to support its claim that Ray could have raised his request earlier.

Our Supreme Court, however, appears to be far less troubled by Alabama’s total lack of evidence. In a decision that essentially amounts to 32 words, Justice Clarence Thomas vacated the Eleventh Circuit’s stay and ordered that Ray’s execution move forward under Alabama’s conditions.

Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.

Justice Thomas, joined by the usual conservative suspects, chose to utterly ignore the circuit court’s finding that Ray likely presented a “powerful” First Amendment claim, and that Alabama’s obvious preference for Christianity constituted just the kind of behavior the founding fathers sought to preclude. Rather, Thomas side-stepped the substance of Ray’s claim and simply found that it had been made too late.

Until SCOTUS’ decision in this case, it was Alabama’s religious arrogance that was most infuriating. But SCOTUS’ willingness to hang its decision on timeliness when Alabama offered absolutely nothing to demonstrate that Ray could have raised his claim earlier is cruelty masquerading as calendar constraints.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor dissented, calling the majority’s decision “profoundly wrong,” and again drawing attention to the complete lack of evidence presented by Alabama. Kagan wrote:

Here, 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.

Any First Amendment claim, however strong, died with Domineque Ray when he was put to death by lethal injection on Thursday night. His imam watched from the adjoining witness room.

[Image via Alabama Department of Corrections]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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