The Supreme Court can’t make everyone happy, but it rarely makes everyone mad. Chief Justice John Roberts and his four conservative colleagues did just that last week when they let the state of Alabama execute Domineque Ray, a Muslim prisoner, without honoring his request to have an imam present at his death. Justice Elena Kagan, in a dissent joined by the other three liberal justices, condemned the majority opinion for giving no attention to Ray’s religious-freedom claims. “Given the gravity of the issue presented here,” she wrote, “I think that decision profoundly wrong.”
Observers across the political spectrum agreed with Kagan’s assessment. ThinkProgress described the ruling as “a truly shocking attack on Muslims.” National Review’s David French called it “a grave injustice,” adding, “The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.” Rod Dreher, a prominent conservative Christian writer, said the court’s decision was a “profound moral wrong, and it should not be forgotten.” Neal Katyal, a former acting U.S. solicitor general in the Obama administration, compared it to some of the most shameful rulings in the court’s history.
The near-unanimity of this criticism is remarkable by the Supreme Court’s recent standards. By letting Alabama execute Ray without equal access to the clergy of his faith, its conservative justices highlighted two disturbing trends in its recent decisions: the unequal treatment of Muslims who have faced religious discrimination, and an unyielding desire to preserve the death penalty.
Ray’s case dates back to 1999, when an Alabama jury convicted him for the rape and murder of a 15-year-old girl. He spent the next 20 years on death row while his appeals process worked its way through the state and federal courts. Last November, Alabama scheduled his execution for February 7. The prison warden met with Ray on January 23 to discuss the procedures for his upcoming lethal injection. It was then that Ray was told that the prison chaplain, a Protestant Christian minister, was required to be in the execution chamber during his death.
There may be no moment where it’s more important to have a cleric of one’s faith than at the moment of one’s death. Ray, who was a devout Muslim, asked if his imam could be present instead. The state said no. He asked if the minister could be excluded from the execution chamber. The state refused that request as well. Five days after the meeting, on January 28, Ray filed a lawsuit in federal court to halt his execution. He argued that the prison’s policy violated federal religious-discrimination laws as well as the First Amendment’s Establishment Clause, which forbids government officials from elevating one faith or denomination above another.
Alabama responded by citing the court’s need to maintain prison safety and control who is present during an execution. The state also waived its requirement that the prison chaplain be present in the execution chamber when officials administered a lethal injection to Ray. But this merely changed the discrimination instead of curing it: A Protestant Christian prisoner would still be able to have a cleric of their faith by their side when they died, while those from other denominations and faiths would not.
The district court denied Ray’s appeal on timeliness grounds on February 1. Ray had told the court he only learned about the policy five days before he filed the lawsuit, and Alabama offered no evidence to the contrary. Despite this, the judge ruled that Ray should have filed the complaint after the state set the execution date in November. On Wednesday, a three-judge panel of the Eleventh Circuit Court of Appeals overruled that decision and stayed Ray’s execution until it could gather more evidence. Judge Stanley Marcus wrote that “it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.”
The Supreme Court’s conservative majority, in quashing the panel’s stay on Thursday and letting the state of Alabama kill Ray hours later, offered no explanation beyond a short, unsigned statement that cited the late timing of the appeal. So it’s unclear why they ruled as they did. But Kagan’s dissent shows how they made three unjustifiable decisions along the way. First, the majority didn’t just let the execution go ahead on schedule; they squelched the Eleventh Circuit’s effort to find out more facts before rendering a final judgment. “The Eleventh Circuit wanted to hear that claim in full,” Kagan explained. “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.” In doing so, the majority sent the message that the convenience of state officials ranks higher than the religious-freedom claims of a condemned prisoner.
Second, the majority did not acknowledge that Alabama had come nowhere near proving its case. The state had to justify its religious discrimination by proving it had exhausted all other options when pursuing the “compelling interest” of prison security; it did not. “Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received?” Kagan asked in her dissent. “The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say.” Nor does the majority, which stuck to the procedural aspects of the case.
Third, and perhaps most importantly, the majority’s only justification for their decision—that Ray filed his claim too late—was factually wrong. “On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019,” they wrote. “Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the [Eleventh Circuit].” This implies he should have filed the appeal in November, but Kagan notes that it would have been impossible for him to know at that time. State law does not specify where spiritual advisers are allowed during an execution, she pointed out, and the state refused to provide its execution policies and procedures to Ray.
“So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber,” Kagan explained. Her dissent would have been made available to all of her colleagues before it was made public on Thursday night. Either the conservative justices each didn’t know that they were wrong, which suggests an incredible level of sloppiness on their part in a life-or-death matter, or they didn’t care that they were wrong.
How did they screw up so badly? Ray’s adherence to Islam seems to have played a role. It’s impossible to imagine that the court would have allowed a state to only provide an imam or a rabbi to a Christian death-row prisoner. Indeed, the justices have gone to great lengths to defer to religious-freedom claims by Christian plaintiffs over the past decade. The Little Sisters of the Poor, a Catholic order of nuns, is exempt from filling out a waiver from contraceptive coverage under the Affordable Care Act. A Lutheran church in Missouri has the right to obtain a state grant to resurface its playground blacktop. Colorado’s civil rights commission can no longer sanction a Christian baker in that state for refusing to sell a wedding cake to a same-sex couple.
To be fair, the Supreme Court isn’t entirely hostile to religious-freedom claims made by non-Christians. In recent years, the justices have sided with a Muslim woman in an employment-discrimination case against Abercrombie and Fitch, as well as a Muslim prisoner who challenged an Arkansas prison’s beard-length policy. But this is also the court that gave its stamp of constitutional approval to President Donald Trump’s travel ban targeting six Muslim-majority countries. While the justices are willing to interpret unconstitutional bias from remarks by civil-rights commissions about a Colorado baker, that clarity somehow got muddled when it came to one of the most explicit acts of presidential bigotry in the modern era.
Perhaps the main reason the conservative justices rejected Ray’s claims was because they oppose to what Samuel Alito once called the “guerrilla war against the death penalty.” The justices have criticized the abolition movement in the past. In 2015, they upheld Oklahoma’s use of a sedative tied to two botched executions after complaining at oral arguments that the state only used it because an activist-led embargo had cut off other supplies. The majority opinion summarized itself with circular reasoning: “Because capital punishment is constitutional, there must be a constitutional means of carrying it out.”
Ray’s status as both a devout Muslim and a death-row prisoner made the injustice even more readily apparent. The deafening criticism since his execution may deter the Supreme Court’s reinvigorated conservative majority from making the same mistakes again. If it doesn’t, then at least the injustices will be more apparent to the American public when they happen.