The Supreme Court just handed down a brief order holding that a man named Domineque Ray must die without his spiritual adviser being made available to give him comfort. The decision was 5-4 along party lines. The case is Dunn v. Ray.
Ray is a death row inmate, and there is no doubt that the state of Alabama may execute him. The only issue in this case was whether Ray, who is Muslim, may be killed with his imam at his side. Moreover, as Justice Elena Kagan notes in a dissenting opinion, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites” under the prison’s policy. So if Ray were a Christian, he would have his spiritual adviser present.
One of the cornerstones of the Supreme Court’s religion jurisprudence is that the government may not discriminate among faiths. As it explained in Larson v.
Valente, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Yet, as Kagan writes, that is exactly what the court did in Ray.
The Supreme Court’s Republican majority couches its decision as simply a matter of procedure. Ray’s execution was set for Thursday on November 6th. According to the majority, “Ray waited until January 28, 2019 to seek relief,” and thus his request may be denied under the principle that “a court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”
This, however, is the same Supreme Court that has rewritten fundamental principles of its own religious liberty jurisprudence in cases like Burwell v. Hobby Lobby when conservative Christians claimed that their religious beliefs were under attack. It is also the same court that upheld President Donald Trump’s Muslim ban despite the fact that Trump literally bragged repeatedly about his plans to ban members of a certain faith from the country.
Moreover, as Kagan notes, the prison warden did not deny Ray’s request to have his imam present until January 23. So Ray went through the prison’s administrative channels to get the relief he sought, and then he filed suit just five days after his request was denied. Given this timing, it appears very likely that the majority’s claim that Ray waited too long to file his suit is pretextual.
To be fair, it is possible that the Republican majority denied Ray’s request due to a lack of sympathy towards death row inmates generally, rather than out of particular animus towards Muslims. Yet it is also unclear why a mere desire to ensure that executions are carried out would justify the decision in Ray.
Again, the issue in this case is not whether Mr. Ray may be executed, it is whether a Muslim inmate is entitled to be treated exactly the same way as a Christian while that inmate is being executed.