Bench Memos

Law & the Courts

On Supreme Court Order Allowing Execution in Alabama

Some observations on last Thursday’s Supreme Court order, by a 5-4 vote, allowing the state of Alabama to proceed with the execution of Domineque Ray in the face of his Establishment Clause challenge to the prison policy that prevented him from having a Muslim imam present in the execution chamber:

1. Although you might not know it from the media coverage, the divide between the majority and the dissent appears to turn entirely on whether Ray unduly delayed making his Establishment Clause claim, not on any disagreement over Establishment Clause principles. Here’s the majority’s single-paragraph opinion accompanying its order:

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. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

The divide between the majority and the dissent on this procedural question mirrored the divide between the district court (which ruled that Ray had unduly delayed bringing his claim) and the Eleventh Circuit (which disagreed). In her dissent, Justice Kagan explains why she “see[s] no reason to reject” the Eleventh Circuit’s conclusion. But it might well be that the majority believed that the Eleventh Circuit failed to accord proper deference to the district court on this question. Given its brief statement, we can’t know.

2. Under the prison’s policy, the only people allowed in the execution chamber with the inmate are prison employees. One of those employees is the prison chaplain, who is a Christian and who will pray with the inmate upon the inmate’s request.

It is very lamentable that the prison did not alter this policy when Ray objected to its obvious religious favoritism. (The policy disfavors not only Muslims and other non-Christians but also, given the internal conflicts within Christianity, many Christians. I wonder how a Catholic inmate’s request that the chaplain pray a Hail Mary with him would be received.) The simplest way to abolish the favoritism would have been to bar the chaplain from the execution chamber. Had the prison made that policy change, the execution of Ray could have proceeded exactly as it did, but not under an Establishment Clause cloud.

3. According to the state’s brief (page 13, note 30), under the prison’s policy Ray was allowed to “meet with an imam in the holding cell immediately prior to his execution” and to “have a Koran and pray at that time.” Plus, Ray was able to see the imam in the viewing room during the execution.

These facts do not of course eliminate the problem of religious favoritism in the prison’s policy, but they do suggest that the prison’s policy offered far greater accommodation of Ray’s religious beliefs than you’d know from Kagan’s dissent or the media coverage.

4. In a Wall Street Journal op-ed today, Luke Goodrich of the Becket Fund explains that “accusations that the Supreme Court’s decision reflects anti-Muslim bias are also mistaken.” As he points out, beyond the fact that the majority ruled against Ray on grounds of untimeliness, the Court, with strong support from the conservative justices, has recently delivered victories to Muslims making religious-liberty claims.

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