Supreme Court’s Intervention to Allow Execution of Domineque Ray Provokes Widespread Condemnation

The U.S. Supreme Court has found itself in the cross­fire of harsh crit­i­cism from across the polit­i­cal spec­trum after its inter­ven­tion in a death penal­ty case allowed Alabama to exe­cute a Muslim pris­on­er with­out pro­vid­ing him access to a religious adviser. 

Evangelical Christians and Catholic Bishops joined edi­to­r­i­al boards and com­men­ta­tors from the New York Times to the National Review in con­demn­ing the Court’s 5 – 4 deci­sion per­mit­ting the exe­cu­tion of Domineque Ray (pic­tured) on February 7, 2019. Los Angeles Times deputy edi­to­r­i­al page edi­tor Jon Healey wrote: ​“If you need a rab­bi, an imam or oth­er non-Christian spir­i­tu­al advi­sor to accom­pa­ny you into the death cham­ber in Alabama, God help you. Because the U.S. Supreme Court won’t.” Libertarian pro­fes­sor Ilya Somin, of the George Mason University Antonin Scalia Law School, called the deci­sion a ​“grave injus­tice” and the con­ser­v­a­tive National Review head­lined a col­umn by its senior writer David French, ​“The Supreme Court Upholds a Grave Violation of the First Amendment.”

Alabama sched­uled Ray’s exe­cu­tion on November 6. Undisclosed to Ray and the oth­er death-row pris­on­ers, Alabama’s secret exe­cu­tion pro­to­col man­dat­ed that a Christian chap­lain — and no oth­er reli­gious advis­er — be present in the execution chamber. 

Ray sought to be pro­vid­ed the same access to reli­gious com­fort that the state afford­ed Christian pris­on­ers, and request­ed that his imam be allowed in the exe­cu­tion cham­ber. The state denied his request on January 23, 2019, say­ing that the chap­lain was allowed in the cham­ber because he was a trained employ­ee of the Department of Corrections, but an untrained vol­un­teer imam would present security concerns. 

Five days lat­er, Ray sought a stay of exe­cu­tion alleg­ing that Alabama’s pol­i­cy vio­lat­ed his First Amendment right to free exer­cise of reli­gion. A fed­er­al appeals court grant­ed a stay to allow brief­ing on the issue, but the U.S. Supreme Court, in a con­tentious 5 – 4 deci­sion, reversed the deci­sion. In a dis­sent joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Elena Kagan wrote, ​“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.”

Christian lead­ers raised con­cerns about the decision’s dis­re­gard of human dig­ni­ty and its broad­er impact on reli­gious lib­er­ty. In a news release issued under the head­ing ​“U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution,” the chairs of the U.S. Conference of Catholic Bishops com­mit­tees for Religious Liberty and for Domestic Justice and Human Development called the death penal­ty itself ​“an affront to human dig­ni­ty.” The state­ment said ​“Mr. Ray bore the fur­ther indig­ni­ty of being refused spir­i­tu­al care in his last moments of life.” 

The com­mit­tee chairs — Archbishop Joseph E. Kurtz of Louisville, Kentucky, and Bishop Frank J. Dewane of Venice, Florida — wrote: ​“This unjust treat­ment is dis­turb­ing to peo­ple of all faiths, whether Muslim, Christian, Jewish, or oth­er­wise. People deserve to be accom­pa­nied in death by some­one who shares their faith. It is espe­cial­ly impor­tant that we respect this right for religious minorities.” 

In an op-ed for The New York Times, Alan Cross, a pas­tor and mis­sion­al strate­gist with the Montgomery Baptist Association, wrote, ​“I am not a Muslim. I am an evan­gel­i­cal Christian min­is­ter in Alabama. But my reli­gious free­dom — everyone’s reli­gious free­dom — took a hit when my state decid­ed that instead of slow­ing down to accom­mo­date reli­gious dif­fer­ence, the exe­cu­tion, which is final and irrev­o­ca­ble, had to go on as scheduled.” 

Pastor Cross stressed the val­ue of reli­gious diver­si­ty, say­ing ​“The solu­tion to diver­si­ty is not to elim­i­nate reli­gious dif­fer­ence, but rather to work togeth­er to be ful­ly who we are, to cul­ti­vate a soci­ety where reli­gious belief is rec­og­nized and accom­mo­dat­ed. Mr. Ray’s reli­gious free­dom mat­tered as much as any­one else’s. That free­dom is part of what makes America great. When it is lost, it is replaced by a steril­i­ty and silence that will ulti­mate­ly dri­ve us apart.” 

In its own edi­to­r­i­al, the New York Times edi­to­r­i­al board called the Supreme Court rul­ing a ​“moral fail­ure” that dimin­ished Muslims and com­pound­ed the indig­ni­ty of its pri­or acqui­es­cence in the trav­el ban imposed by the Trump administration.