We aren’t a religious nation by law, but a lot of facts tend to make us one. Prayer is offered before Congress. Our currency says so. For some, this brings comfort, and there’s nothing wrong with that. For others, it strikes at the First Amendment, which not only promises us the right to believe in the religion of our choice, but to not believe. The Establishment Clause precludes the government from siding with religion, or any particular religion.
Then there’s Alabama. It’s not bad enough that he was executed last night, but they wouldn’t let him have his choice of spiritual adviser at his side. A stay was sought at the Eleventh Circuit and granted. After all, they can always execute him later. But the Supreme Court lifted the stay and now Ray is dead.
On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).
To glean a rationale from this paragraph is to be forced to read between lines, as the majority doesn’t do much to explain itself. The key takeaway is that Ray had plenty of time between November and last night to raise the issue, but sat on his right until January 28th, making it an 11th hour application. On its surface, the decision to vacate the stay would appear to be grounded in process, that Ray waited too long to assert his issue.
But below the surface is another problem, that opponents of the death penalty have sought wedges to prevent it having nothing to do with the primary issue, whether the death penalty is constitutional under the Eighth Amendment. The primary mode of attack is the method of execution, such as midazolam as the first of the three-drug cocktail, being torturous. Killing them is one thing, but making them suffer as they’re killed is another.
The Supreme Court has been reluctant to countenance these last ditch efforts to stymie executions, viewing them as ploys in the battle to end the death penalty. Ray’s stay raised a different question, albeit at the last minute. As discussed in the four-justice dissent, the prison’s claim was that they had an in-house chaplain, trained in ministering to the person the state was about to kill. The chaplain was of the Christian faith. If you could only have one, Christian makes sense as it’s the predominent religion, even if we’re not supposed to have a religion at all.
Yesterday, the Eleventh Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits. Today, this Court reverses that decision as an abuse of discretion and permits Mr. Ray’s execution to go forward. Given the gravity of the issue presented here, I think that decision profoundly wrong.
Justice Kagan’s concern for the “gravity” of denying Ray an imam at his side is well-founded. We all get religion when it serves our purpose.
To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least
restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.
The argument is clear as could be. The counter is perfunctary at best, and withers upon even the slightest scrutiny. On the one hand, the worst that would come of staying execution long enough to decide the question on the merits is Ray would be executed later. Ray’s crime was horrific, the rape and murder of a 15-year-old girl in 1995. A few more years of the slow death penalty wouldn’t change much.
And despite the majority’s resistance to these last minute stays, Justice Kagan addresses the issue head on.
I also see no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner. The warden denied Ray’s request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January 28. The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice “may be present at an execution.” Ala. Code §15–18–83(a) (2018). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.
Until Alabama said no to Ray having an imam as his spiritual advisor, there was no reason for him to know that it would be denied. There’s no problem until there’s a problem, so neither Ray nor his lawyers could be faulted for being unaware this was a problem until Alabama made it one.
It’s bad enough that the Supreme Court has yet to come to serious grips with the death penalty, but the same majority that appreciates the Free Exercise clause when it suits their purposes blithely shrugs it off when it doesn’t. Then again, the dissent’s embrace of the state impairing the same right as “profoundly wrong” isn’t any less dubious.
Whether you believe in religion or see it as some zombie in the sky nonsense isn’t relevant. They weren’t putting you to death, but Domineque Ray. If the state is going to execute a person, the least they can do is allow a spiritual advisor of his religious choosing at his side.