Adam Ares, Associate Member, University of Cincinnati Law Review
On Thursday, February 7, the State of Alabama executed Domineque Ray for the 1995 murder and rape of 15-year-old Tiffany Harville after a lengthy court battle over whether Ray could have his imam in the room at the time of his execution. At the heart of the case was the question of whether the prison’s decision to deny Ray access to his imam violated the First Amendment’s Establishment Clause, which prohibits preferential treatment of one religion over another. After being granted a stay of the execution by the Eleventh Circuit, the case made its way to the United States Supreme Court, which ruled in a 5-4 decision that because of the “last-minute nature” of Ray’s request the State could proceed with the execution. This article will provide an overview of the case, including a summary of both the Eleventh Circuit and Supreme Court opinions. Lastly, the author will explain why the Supreme Court decision was wrong and highlight the public reaction to the decision.
Ray was a committed Muslim since 2006 and had been meeting with his current imam regularly since 2015. Ray’s execution was schedule for February 7, 2019. On January 23, the Warden of the prison explained to Ray for the first time the execution policies and procedures. These practices provided that a Christian minister would be present in the execution chamber at the time of the execution and that the minister would either pray with the inmate if requested or he would stand unobtrusively against the wall. Any other spiritual advisor requested by the inmate is only permitted in the witness room, adjacent to the execution chamber. During the meeting with the Warden, Ray requested that his imam be present in the execution chamber at the time of his death and that the Christian minister be excluded from the chamber. He was denied both requests. Ray filed an emergency motion for stay of execution in the Middle District of Alabama on January 28, 2019. Ray claimed that Alabama was violating Religious Land Use and Institutionalized Persons Act and the First Amendment’s Establishment Clause by denying access to his imam in the execution chamber, but requiring the presence of a Christian minister. Prior to a determination by the District Court, the State agreed to exclude the Christian minister from the execution chamber, but explained that for safety concerns it would still not allow Ray’s imam access to the chamber because the imam is a non-ADOC (Alabama Department of Corrections) employee and is unfamiliar with the execution procedures. The District Court denied Ray’s motion to stay the execution and found, in part, that “‘Ray has had ample opportunity in the past twelve years to seek a religious exemption, instead of waiting until the eleventh hour to do so.’”
The Eleventh Circuit on appeal disagreed with the District Court and found that Ray had a “substantial likelihood of success” on the merits for his Establishment Clause claim. The Supreme Court in Larson v. Valente held that “‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’” The Eleventh Circuit held that it seemed to them that the ADOC has adopted a policy that “aid[s] one religion or prefer[s] one religion over another.” Specifically, the Court found that “[i]f Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit.” The Eleventh Circuit acknowledged that the State does have a compelling interest in maintaining security during “the most consequential act of carrying out an execution.” However, the Court felt that Alabama did not meet its burden to show that there are no other less restrictive means to protect the State’s interests. Additionally, the Eleventh Circuit disagreed with the District Court’s conclusion that Ray unduly delayed filing his action so as to delay the execution. The Eleventh Circuit found that the Alabama Code does not specify the policy of the ADOC, nor was there any evidence that Ray knew about the policy before his meeting with the Warden on January 23. Therefore, the Eleventh Circuit granted Ray’s emergency motion to stay his execution.
One day later, on February 7, the day of the scheduled execution, the Supreme Court issued a ruling on the case. In an opinion that consists of less than 150 words, the majority of the Court ruled to vacate the Eleventh Circuit’s motion to stay the execution. The only rationale provided by the majority was in quoting Gomez v. United States Dist. Court for Northern Dist. of Cal., which provided that “‘[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.’” The Court held to vacate the stay of the execution “[b]ecause Ray waited until January 28, 2019 to seek relief[.]” The dissent by Justice Kagan stated that the majority’s decision was “profoundly wrong[,]” and found that there was “no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner.” Justice Kagan found that the Alabama Code would not have put Ray on notice that his request would be denied and also noted that the prison refused to give Ray a copy of its practices and procedures. Following the Supreme Court’s decision, Ray was executed later that day.
Justice Kagan was correct in finding that the majority’s decision was “profoundly wrong.” This should be an easy Establishment Clause case. The ADOC had a policy in place that clearly favored Christian inmates over non-Christian inmates by denying access to non-Christian spiritual advisers while simultaneously requiring the presence of a Christian minister in the execution chamber. This is clearly in violation of the Establishment Clause. Furthermore, all of the facts of the case tend to show that Ray did not have knowledge of the ADOC’s policy until days before his execution and that he would have had no way of knowing the policy before his discussion with the Warden. There is no other way to view the Supreme Court’s decision than as a blatant disregard of religious freedom in order to expediate the death penalty. The holding, especially given its brevity, seems to show a lack of respect for the Muslim faith. The result seems even more baffling given the Court’s new conservative majority’s dedication to religious freedom. As pointed out by Dahlia Lithwick in Slate, “[f]or a court that cannot bear the thought of a religious baker forced to frost a cake in violation of his spiritual convictions to be wholly unaffected at the prospect of a man given last rites by a member of another faith borders on staggering.” Even the conservative National Review called the decision a “grave injustice” and argued that “[t]he state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.” Hopefully the universal public outcry will bring about change to Alabama’s discriminatory execution policies. However, Dunn v. Ray seems positioned to likely go down as one of the low moments in the history of the Supreme Court.
 Mathew S. Schwartz, Justices Let Alabama Execute Death Row Inmate Who Wanted Imam By His Side, NPR (Feb. 8, 2019, 7:08 AM), https://www.npr.org/2019/02/08/692605056/supreme-court-lets-alabama-execute-muslim-murderer-without-imam-by-his-side.
 Ray v. Comm’r, Ala. Dep’t of Corr., 2019 U.S. App. LEXIS 3664 *1, 2 (11th Cir. 2019).
 Id. at *2-3.
 Id. at *3.
 Id. at *4-5.
 Id. at *7.
 Id. at *8 (quoting the Middle District of Alabama).
 Id. at *9.
 Id. at *10 (quoting Larson v. Valente, 456 U.S. 228, 244 (1982)).
 Id. at *13.
 Id. at *20.
 Id. at *17.
 Id. at *17-18.
 Id. at *26-28.
 Dunn v. Ray, 2019 U.S. LEXIS 817 *1 (2019).
 Id. at *2-3.
 Id. at *4.
 Dahlia Lithwick, An Execution Without an Imam, Slate (Feb. 8, 2019, 2:56 PM), https://slate.com/news-and-politics/2019/02/domineque-ray-alabama-execution-imam-first-amendment-scotus.html.
 David French, The Supreme Court Upholds a Grave Violation of the First Amendment, National Review (Feb. 8, 2019, 2:30 PM), https://www.nationalreview.com/corner/the-supreme-court-upholds-a-grave-violation-of-the-first-amendment/.