Alabama Executes Muslim Prisoner Amidst Charges of Religious Discrimination

In a 5 – 4 deci­sion that Justice Elena Kagan char­ac­ter­ized as ​“pro­found­ly wrong,” the U.S. Supreme Court on February 7, 2019 per­mit­ted Alabama to exe­cute a Muslim death-row pris­on­er, Domineque Ray (pic­tured), who had claimed that the state’s exe­cu­tion process dis­crim­i­nat­ed against him because of his reli­gion. Without expla­na­tion, the Court assert­ed that Ray had wait­ed too long to chal­lenge a pro­vi­sion in Alabama’s exe­cu­tion pro­to­col that made a Christian chap­lain part of the state’s exe­cu­tion team and pro­hib­it­ed oth­er reli­gious advi­sors from being present in the execution chamber. 

Ray argued that Alabama’s prac­tice con­sti­tut­ed an estab­lish­ment of reli­gion that dis­crim­i­nat­ed against non-Christians. 

During fed­er­al court hear­ings on the con­sti­tu­tion­al­i­ty of the pol­i­cy, Alabama with­drew its require­ment that the chap­lain be present in the exe­cu­tion cham­ber. However, it con­tin­ued to reject Ray’s request that his imam — a prison-approved spir­i­tu­al advi­sor — be per­mit­ted in the exe­cu­tion cham­ber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was like­ly to suc­ceed on his reli­gious dis­crim­i­na­tion claim, sched­uled brief­ing in his case, and stayed his exe­cu­tion. The Supreme Court reversed, with­out address­ing the constitutional issue.

Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dis­sent­ed. Quoting pri­or Supreme Court deci­sions, Kagan wrote, “‘The clear­est com­mand of the Establishment Clause is that one reli­gious denom­i­na­tion can­not be offi­cial­ly pre­ferred over anoth­er.’ 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 prac­tices a dif­fer­ent reli­gion — whether Islam, Judaism, or any 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.” 

In assert­ing that its exe­cu­tion process com­plied with con­sti­tu­tion­al guar­an­tees of reli­gious free­dom, the Alabama Attorney General’s office told the fed­er­al courts: ​“Like any oth­er inmate, Ray has been and will be giv­en oppor­tu­ni­ties to speak with his spir­i­tu­al advis­er, includ­ing up to the moment that he is tak­en into the cham­ber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to hon­or that promise and that Ray lost access to his imam three hours before the execution.

Ray was con­vict­ed and sen­tenced to death for the rape and mur­der of a 15-year-old girl. No phys­i­cal evi­dence linked him to the crimes and a sole pros­e­cu­tion wit­ness, Marcus Owden, impli­cat­ed Ray. In 2017, Ray’s appeal lawyers dis­cov­ered for the first time that Owden — who avoid­ed the death penal­ty by tes­ti­fy­ing against Ray — had schiz­o­phre­nia and was suf­fer­ing from delu­sions and audi­to­ry hal­lu­ci­na­tions when he accused Ray of the rape and mur­der and tes­ti­fied against him. Ray’s lawyers argued that the prosecution’s delib­er­ate sup­pres­sion of this evi­dence, despite being aware of Owden’s men­tal ill­ness, vio­lat­ed Ray’s due process rights and enti­tled him to a new tri­al. Without com­ment, the Supreme Court declined to review the claim and denied a stay. Ray was the sec­ond per­son exe­cut­ed in the U.S. in 2019 and the first in Alabama.