On Thursday night, the Supreme Court, by a vote of 5–4, allowed the Alabama state prison in Atmore to execute Domineque Ray, a convert to Islam, by lethal injection for the 1995 rape and murder of 15-year-old Tiffany Harville, and the murders of two brothers. He died alone. He was denied his request to have his imam, Yusef Maisonet, by his side.
Reading the majority’s decision, I kept asking myself, How would these five justices have responded if all the facts were the same but Ray were a Christian and the imam were a priest? Would they have decided to reverse the ruling of the United States Court of Appeals for the Eleventh Circuit in Atlanta that stayed the execution? That appellate court stated, “It looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.” That’s the clause that prohibits the government from establishing an official religion and unduly favoring one religion over another. The Eleventh Circuit highlighted that Alabama allows Christian clerics in the execution room for all Christian inmates but refuses “to provide the same benefit” to a devout Muslim such as Ray, and all other non-Christians.
The conservative majority wrote little in granting Alabama’s application to vacate the stay, but it was apparently convinced by the state’s argument that Ray had waited too long to seek relief.
In her dissent, Justice Elena Kagan, joined by the Court’s liberal justices, called the decision “profoundly wrong.” She wrote, “The clearest command of the Establishment clause” is “that one religious denomination cannot be officially preferred over another.” Under Alabama’s policy, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” she wrote. “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.”