Thursday, February 7, 2019

Domineque Ray is a death row inmate in Alabama. Convicted of raping, robbing, and murdering a teenage girl in 1999, Ray was set to be executed today. About two weeks ago, he met with a prison official to discuss the terms of his execution. He asked, among other things, that a Muslim imam be present with him in the execution chamber for spiritual guidance. The prison official explained that only a Christian chaplain can witness executions from inside the chamber. Inmates can bring along their own witnesses, including a spiritual adviser if they so choose, but these extra guests must stay in a sealed-off room.

Ray argued that the prison’s policy was unconstitutional under the Establishment Clause of the First Amendment, which says that the government can’t officially prefer one religion over another. Here, Ray asserted, Alabama was preferring Christianity over Islam. The Court of Appeals for the Eleventh Circuit held that his argument was “substantially likely to succeed on the merits,” and it temporarily suspended his execution.

Tonight the conservative wing of the Supreme Court voided the Eleventh Circuit’s suspension. The Court held that Ray had waited too long to seek relief, which, in Alabama’s view, should have happened when his execution date was set in November. He will probably be executed very soon.

In response, Justice Kagan penned her most full-throated dissent in a religious freedom case since Town of Greece v. Galloway (2014). Joined by Justices Breyer, Ginsburg, and Sotomayor, she called the majority’s decision “profoundly wrong” for a couple reasons. Here’s a (cleaned up) excerpt:

“The clearest command of the Establishment clause,” this Court has held, “is that one religious denomination cannot be preferred over another” (Larson v. Valente). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate of a different religion – whether Islam, Judaism, or another other – he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.

Usually, state policies that seem to prefer one religion over another must pass strict scrutiny. If the policy isn’t “justified by a compelling government interest” and narrowly tailored to achieve that interest, then it must fail under Larson v. Valente. Justice Kagan found that Alabama’s policy belonged in this category, and she expressed skepticism about the state’s rationale for excluding imams from the execution chamber.

Her second point of disagreement is that Ray was justified in seeking relief so soon before the execution.

The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at the execution’ (Alabama Code). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear).

Here is the link to her full dissent, from which I copied-and-pasted quite heavily. You may also be interested in the Court’s other order tonight in June Medical Services v. Gee, where the four more liberal justices plus Chief Justice Roberts prevented a restrictive Louisiana abortion law from going into effect. Justice Kavanaugh dissented from their decision.

— Anna Salvatore

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