The Supreme Court shocked religious liberty advocates last week after the justices dismissed a Muslim death row inmate’s plea to have an imam by his side in the execution chamber instead of the prison’s official Christian chaplain, saying he waited too long before making the last-minute request.
Domineque Ray, 42, had been on death row since 1999 after he was convicted of raping and murdering 15-year-old Tiffany Harville in 1995. By then, he had already begun serving a separate life sentence for the murder of two brothers, 18-year-old Reinhard and 13-year-old Ernest Mabins. Ray reportedly became a devout Muslim in 2006.
The decision was reached along strict ideological lines, with the court’s five conservative justices determining that Ray could be executed without a Muslim spiritual advisor present at the time of his death. The two-paragraph order, issued late Thursday evening, did not address the religious aspects of the case, but rather dismissed Ray’s case because he filed his request too late.
Ray was executed by lethal injection Thursday night as his imam watched from the separate witness room.
Critics blast decision
Critics of the ruling were both swift and fierce in condemning the verdict. Deepak Gupta, a Capitol Hill attorney with experience arguing before the Supreme Court, was one of the most outspoken experts to vilify the holding. “I can’t recall the last time that I was as shocked by a Supreme Court decision,” Gupta said. “This decision is indefensible on the merits, and the court doesn’t even bother to try.”
Other observers pointed to the Supreme Court’s recent track record for protecting religious liberties to make the case that anti-Muslim sentiment may have been at play. “Consider the opposite circumstance — a Christian person who is told that, during the final moments of his life, he can have only the services of an imam,” argued Amir H. Ali, a Harvard Law School lecturer who takes Supreme Court and appellate cases at the MacArthur Justice Center. “It is hard to imagine the court reaching the same result as it did here,” Ali added. “And that’s a real problem because the very purpose of the Establishment Clause is to prevent this sort of religious preference.”
Conservatives were also dismayed by the decision. “Any policy that by law or practice provided death-row inmates with access only to Christian chaplains would likely fail 9-0 if addressed on the merits,” National Review columnist David French wrote. “In this case, however, the Supreme Court didn’t decide the merits. It determined that Ray’s request for an imam was made too late.”
Before reaching the Supreme Court, Ray’s case was heard at the U.S. Court of Appeals for the 11th Circuit. The lower court issued a stay of execution, unanimously concluding that Ray’s counsel made a “powerful” argument that Alabama’s execution procedures favored one religion over another. “[I]t looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment,” the 11th Circuit wrote.
The federal justice system is notoriously overburdened by death penalty cases, and an objectionable 40 percent of death row inmates spend at least 20 years navigating appellate courts and filing desperate last-minute appeals. Therefore, when Alabama issued an emergency request to reverse the 11th Circuit’s stay, the Supreme Court quickly agreed that Ray’s 11th-hour request for a Muslim imam violated stated procedures designed to carry out executions in an “orderly and secure fashion.”
Kagan issues dissent
The court’s majority argued that Ray was too late in requesting a co-religious chaplain, waiting until January to file a lawsuit demanding an imam even though he was furnished with an execution date in November. However, Justice Elena Kagan, who called the majority decision “profoundly wrong,” issued a dissenting opinion disputing this timeline.
According to Kagan, the Alabama death penalty statute states that “both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at an execution.’” It wasn’t until January — just days before Ray filed his appeal — that the death row inmate learned that a Muslim chaplain wouldn’t be available to him during his final moments.
“Ray has put forward a powerful claim that his religious rights will be violated at the moment the state puts him to death,” Kagan wrote. She was joined by liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor in dissenting with the majority ruling.