WHEN THE SUPREME COURT cleared the way for Alabama to execute Domineque Ray, a Muslim man who had wanted his imam by his side as he died, the legal commentary ranged from surprised to outraged. The justices’ order, on February 7th, approved by a 5-4 vote—with the four liberal-leaning justices in dissent—made no mention of the apparent constitutional problem with Alabama’s refusal to grant Mr Ray’s request. According to Alabama Department of Corrections policy, the prison’s Christian chaplain may be present during a lethal injection and, on request, “will kneel at [an inmate’s] side and pray with him”, but clergy of other faiths are barred from the room.
On February 6th, the Eleventh Circuit Court of Appeals had delayed Mr Ray’s execution on the grounds that Alabama’s Christian-clergy-only rule seemed to violate the constitutional bar on preferring one faith over others. In a 28-page opinion explaining this position, Judge Stanley Marcus wrote for two colleagues in concluding that “it looks substantially likely to us that Alabama has run afoul of the establishment clause of the First Amendment”. Mr Ray’s claim “touches at the heart” of America’s ideal of religious liberty. “[W]e can think of no principle more elemental to the establishment clause”, they wrote, “than that the states and the federal government shall not favour one religious denomination over another”.
The Eleventh Circuit panel acknowledged that Alabama had a compelling interest in security, and that this concern was at its height when carrying out an execution. But because prison officials “offered nothing remotely establishing” the necessity of prohibiting certain clergy from the execution chamber, the judges put off Mr Ray’s execution until the court could hear more evidence and consider the matter fully. On January 31st, a district court judge had given the go-ahead to the execution because, among other things, Mr Ray was “guilty of inexcusable delay” in raising his claim. The Eleventh Circuit flatly disagreed. The lower-court judge was wrong to think that Mr Ray had “ample opportunity in the past twelve years to seek a religious exemption” and chose wait “until the eleventh hour to do so”. In fact, the condemned man apparently only learned of Alabama’s clergy monopoly when he requested on January 23rd that his imam be with him at his execution. After he was rebuffed, Mr Ray filed his complaint in court just five days later.
When the Supreme Court weighs in on last-minute execution stays, it usually grants or denies them without comment. This time, the five justices offered a two-sentence explanation that returned to the district court’s reasoning. Citing a 1992 precedent called Gomez v US District Court, the justices wrote this: “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 entered by the United States Court of Appeals for the Eleventh Circuit.” In a biting dissent, Justice Elena Kagan called this move “profoundly wrong”. Alabama’s policy, she wrote, tells an inmate who practices a religion other than Christianity—“whether Islam, Judaism, or any other”—that he “may not die with a minister of his own faith by his side”. The delay argument is specious, Justice Kagan added, as “there is no reason Mr Ray should have known, prior to January 23rd, that his imam would be granted less access than the Christian chaplain to the execution chamber”.
Prominent Supreme Court litigator Neal Katyal said the Supreme Court’s decision in Dunn v Ray will be taught to future law students alongside deplored rulings like Dred Scott v Sanford (stripping blacks of citizenship), Plessy v Ferguson (blessing segregation) and Korematsu v US (upholding the internment of Japanese Americans during World War II). Joshua Matz, founder of Take Care, a legal blog, called Ray a “grave injustice” and an “outrage”. Commentators on the right sounded only slightly less alarmed. Ilya Somin, a law professor at George Mason University, considered it a “terrible” decision but one not rooted in anti-Muslim bias. University of Chicago law professor Will Baude, a former clerk to Chief Justice John Roberts, was “troubled” that the Supreme Court’s decision “seemed to rest on the questionable application of a technicality” when the stakes were “extremely high”.
So why did five justices reverse the Eleventh Circuit and, in Justice Kagan’s words, “short-circuit” the usual legal process? Are the conservative justices showing explicit bias against Muslims? That conclusion would be hard to square with a pair of Supreme Court cases four years ago in which wide majorities coalesced around the religious freedom of Muslim plaintiffs. In Equal Employment Opportunity Commission v Abercrombie & Fitch, only Justice Clarence Thomas dissented from a 7-page ruling by Justice Antonin Scalia vindicating the right of a 17-year-old woman who had lost out on a job selling kids’ clothes just because she wore a hijab. The decision was “really easy”, Justice Scalia wrote. In Holt v Hobbs, the Supreme Court unanimously sided with an inmate who complained that the Arkansas prison policy against facial hair chafed against his religious duty to grow a beard.
One feature distinguishes Ray from these Muslim-friendly rulings: the death-penalty context. The conservative-leaning justices, led by Samuel Alito, have grown increasingly impatient with opponents of capital punishment waging what he called in a 2015 oral argument a “guerilla war against the death penalty”. The five justices’ decision to let Alabama kill Mr Ray without the comfort of clergy may say more about their frustration with last-minute pleas on behalf of awful criminals—Mr Ray was convicted of raping and killing 15-old Tiffany Harville in 1995—than with anything they might feel about Muslims. The order may also stem from a desire to defer to the judgment of prison officials or to regard Alabama’s no-outside-clergy rule as religiously neutral—as it bars all clergy from the death chamber (non-Christian and Christian alike) other than the state-employed chaplain.
None of these possible explanations does anything to ease the injustice of what happened to Mr Ray. In Holt v Hobbs, the Supreme Court had criticised the irrationality of Arkansas’s rule against beards over a quarter-inch in length; here it did not even let the Eleventh Circuit call a timeout on the execution to evaluate Alabama’s rule against non-employee clergy. And even if it was a hard line on the death penalty that motivated the five justices, the constitutional injury to Mr Ray is just as severe. One more piece of evidence suggests that the Supreme Court erred: after the Eleventh Circuit ruling, Alabama suddenly changed course in implicit recognition of the constitutional trouble their policy posed. The state would now bar all clergy, including the chaplain, from the execution chamber. Aside from acknowledging the religious discrimination of their previous policy, this move matched similarly fraught strategies of addressing racial discrimination claims during the civil-rights era. Rather than move toward inclusion, states and cities would attempt to simply shut down the pools, beaches and even school systems that practiced discrimination. Better no one gets the benefit than everyone does.
Whatever the five justices were thinking on February 7th, letting the state kill a man before federal courts could fully review the rule that blocked his religious leader from counselling him in his final moments seems irreconcilable with the motto inscribed on the Supreme Court building: “equal justice under law”.