An Alabama Imam in the Execution Chamber

The Supreme Court building at dusk. (Unattributed/Wikimedia Commons)

On February 7, 2018, Domineque Ray was executed by lethal injection in Alabama. Less than two hours prior, the Supreme Court of the United States reversed a stay on the execution, allowing the execution to move forward even though it highlighted a potential First Amendment policy violation.

Ray, a Muslim, requested his imam be allowed to accompany him into the execution chamber. Alabama denied Ray’s request despite the fact that Christian chaplains regularly accompany prisoners. Ray found out on January 23 that the state was denying him the same religious rights it grants other prisoners and on January 28, he appealed his execution on the grounds that his treatment by the state violated the First Amendment. The Eleventh Circuit Court of Appeals “concluded that there was a substantial likelihood that the prison’s policy violate[d] the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits.” The state then turned to the Supreme Court on February 6, seeking relief from the Eleventh Circuit’s order so that it could continue with Ray’s execution as scheduled.

The Supreme Court vacated the stay. The five justice majority said Ray had waited too long to seek relief.

In an episode of First Mondays, a weekly podcast discussing Supreme Court news, podcast host and Washington University law professor Dan Epps noted that the Court’s decision to vacate the stay was shocking because it had no reason to intervene. By doing nothing, the Court “would’ve been allowing a stay to stay in place [which would have led to a delay in] the execution…and [allowed] the case [to be] litigated” on the religious liberty issue. The case could have been mooted by a change in state policy, but even if the Eleventh Circuit released an opinion compelling the state to allow Ray’s imam to be present at the time of execution, Ray would still have been executed.

Leah Litman, a UC Irvine law professor and former Supreme Court Clerk, noted in that same episode of First Mondays that in past cases, the Court has shown “that it is very willing to balance…legitimate state interests [against] religious liberty interests.” In these cases though, religious liberty was protected over other valid state concerns, like non-discrimination statutes (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission) and women’s access to contraception (Burwell v. Hobby Lobby Stores).

The First Amendment is explicit. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Why, then, is the Court willing to intervene to protect the religious freedom of some people, while also allowing the state the prohibit the free exercise of other religions?

The Court cited the fact that Ray’s request for the stay was submitted too late, as his execution had been scheduled in November. However, Ray submitted the request one week after learning that his imam would not be allowed into the chamber with him. In an interview, Litman noted that the decision to take a delay into account is “a matter of discretion” for the Court. Therefore, it is not clear why the Court is holding defendants to a “should have known” standard, rather than the time a defendant did know when making decisions on the relevance of a delay, especially in a matter as serious as religious discrimination.

It is hard to reconcile this decision with past cases on religious rights of prisoners. The Court has previously held that prisoners “do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” and as such, prisons are often required to accommodate religion when there is no “legitimate penological interests” by the prison to restrict the free practice of faith. As such, prisons have had to accommodate religious diets, allow prisoners to observe the Sabbath, provide religious literature, and in some cases allow prisoners to possess religious objects. While restrictions may be allowed in cases of valid security interests, policies that are not enforced uniformly (long hair and beards being allowed for some religions but not others, for example) are vulnerable to attacks on religious grounds.

The Court’s actions, therefore, seem odd if we examine the decision in light of past religious liberty jurisprudence alone. However, there are currently five Roman Catholics, one Episcopalian, and three Jews on the Court. There appears to be a pro-Christian, and beyond that pro-Catholic, bias on the Court which seems to favor protecting the religious liberties of Christian groups without extending those same protections to other religious groups.

Litman noted that Dunn v. Ray is “not a decision that can be viewed in isolation.” If we look at past religious liberty decisions through a lens of a potential pro-Christian bias, the seemingly conflicting opinions begin to make sense. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission the Court ruled that while same-sex couples are afforded civil rights protections under the law, religious objections to same-sex marriage are still protected views under the First Amendment, and people cannot be compelled to go against their expressed religious views when providing services. In Burwell v. Hobby Lobby Stores, the Court ruled that corporations are made up of individuals whose rights transfer to their corporations, so corporations run by religious people cannot be compelled to provide contraception if it goes against their stated religious principles. Both of these cases suggest a willingness on the Supreme Court to protect religious liberties against state interests. But in Trump v. Hawaii, the Court determined that the president had broad authority to suspend entry of non-citizens into the United States, disregarding the fact that the president had showed broad religious animus when he called the travel ban a “Muslim ban.” And now, we have Dunn v. Ray, a clear violation of the Establishment Clause that was dismissed on procedural grounds. These past religious liberty cases have focused on “generally applicable neutral rule[s]” that led to religious discrimination. While the rules were facially neutral, “the Court was attuned to that fact that it applied in a way that operated to the detriment of someone” with firmly held religious beliefs. Therefore, it is not clear why “Alabama’s ostensibly facially neutral rules only allowing prison employees into the execution chamber” which “operated to the detriment of adherence to Islam” was not treated in the same manner.

In response to public backlash, the State of Alabama banned all religious figures from accompanying prisoners into the execution chamber, rather than creating a more inclusive policy. This change presents an eerily similar fact pattern to segregation-era policies from southern states pushing back against orders to segregate, such as the decision to close all public swimming pools in Jackson, Mississippi, rather than desegregating them. If a state is reacting to the idea that a Muslim prisoner be afforded the same rights Christian prisoner’s have in the same way they reacted to the idea that people of color be afforded the same rights as white people, perhaps the original policy was similarly discriminatory.

Ray committed a crime, was tried fairly, and was sentenced to death. The state has a legitimate interest in executing its prisoners in a timely manner. This interest does not conflict with a prisoner’s religious liberties, though. The Court’s decision to allow religious discrimination to continue on procedural grounds highlights the discrepancies in religious protection in the Court and in the country.