When I wondered on Twitter why they’d do this, someone replied to the effect of “Because f*** that guy, that’s why. He raped and murdered a 15-year-old girl. No mercy.” That’s super but none of the five conservatives on the Court would endorse that logic. They had a legal reason for denying Domineque Ray’s request for a stay of execution. What was it?
Ray had argued Alabama’s execution procedure favors Christian inmates because a Christian chaplain employed by the prison typically remains in the execution chamber during a lethal injection, but the state would not let his imam be there in the room…
Ray’s imam, Yusef Maisonet, watched the execution from an adjoining witness room, after visiting with Ray over the past two days. There was no Christian chaplain in the chamber, a concession the state agreed to make…
The 11th U.S. Circuit Court of Appeals on Wednesday had stayed the execution over the religious arguments, but the U.S. Supreme Court allowed it to proceed in a 5-4 decision Thursday evening. Justices cited the fact that Ray did not raise the challenge until Jan. 28 as a reason for the decision.
That does appear to have been the reason, which you can see for yourself by reading the opinion. It’ll take you 90 seconds; it’s three pages long, and two of those are taken up by Elena Kagan’s dissent (which the other three liberals on the Court joined). The conservative majority appears to have decided that Ray simply waited too long to make this claim, a conclusion which the district court judge also reached. He was on death row at the prison for 19 years and it only first occurred to him two weeks out from the big day to object to having a chaplain instead of an imam in the death chamber with him? Too late. Too late.
But wait. It’s not that simple. From the 11th Circuit’s opinion:
Ray didn’t know. To the extent he was aware that a spiritual advisor would be given some role at his execution, he probably assumed, not unreasonably, that it’d be an advisor of his choice. Nope, said Alabama. You get a Christian chaplain in the chamber with you; the imam can watch from the viewing room. Once Ray was told that, he filed his petition in court objecting to it within five days, a not unreasonable delay for an appeal involving a constitutional claim and a death sentence. When the Eleventh Circuit panel asked Alabama’s lawyers why they couldn’t just let the imam replace the chaplain in this case, they were told that the chaplain on duty is familiar with all the execution procedures already. He could show the imam what to do beforehand, then, Ray’s counsel argued. The state seemed to have no answer to that, ultimately resorting to a request for deference. They have these policies for a reason, even if they … can’t explain why.
Normally courts do defer to them. The reason they should have gotten less deference in this case is because there’s an obvious Establishment Clause problem in letting the state designate a cleric from one faith as the only option in a state function. In a case where a constitutional right appears to have been violated, courts don’t defer to the government. They apply “strict scrutiny” by demanding that the state show a compelling reason for doing what it did, a standard which Alabama seemingly didn’t even try to meet. The Eleventh Circuit ended up ruling in Ray’s favor. SCOTUS’s decision overturned that ruling. Ray was executed late last night with his imam in the viewing room, not the chamber with him.
The most charitable spin on the majority’s decision is that they’re trying to discourage endless dilatory eleventh-hour appeals of death sentences, but this is a hell of a case to choose to make that point. As far as I can glean, Ray wasn’t asking for his death sentence to be vacated, merely stayed for a few weeks (or days?) until the imam could be trained and included in the process. Given that he obviously did have a strong constitutional claim, you can’t call his appeal a pure delay tactic. And it’s strange that he’d be denied relief by a conservative majority on the Court that’s devoted no small amount of judicial effort over the past few years to strengthening … religious liberty. They couldn’t spare the needle for a few days or whatever to let an inmate have his final moments together with a minister of his own faith? Terrible.