This past week we learned that the US Supreme Court denied the request of a man executed in Alabama to have his spiritual clergy available to him during his execution. Dominque Ray had been sentenced to death in 1995 for the rape and murder of a 15-year-old girl according to court documents. Following prison procedures prior to an execution, the warden met with Ray to review the policies and process of lethal injection. It is at that point that Ray, a Muslim, made several requests: (1) that his body not be subjected to an autopsy as it would conflict with his religious beliefs; (2) that an imam be present during his execution to offer spiritual guidance; and (3) that any Christian minister be specifically excluded from the execution chamber.
His requests were not honored. The prison warden argued he had no power to address the autopsy request and then denied the others. Ray’s attorney filed a motion with the U.S. 11th Circuit Court of Appeals, which granted Ray a stay of execution. Judge Stanley Marcus commented “it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.” However, the State of Alabama pursued the matter to the US Supreme Court, which, in a 5-4 decision, overruled the stay at 8PM on February 8, 2019, and the execution began at 9:44PM. His imam and lawyers were outside the execution chamber; and Mr. Ray’s last words were reportedly the Shahada in Arabic, the Muslim declaration of faith: “There is no god but God. Muhammad is the messenger of God”. Ray died at 10:12PM.
The story is heinous in so many ways: a raped and murdered girl, the execution of person, the functions of the industrial prison complex, the racism, and the inherit religious bias. It is a repulsive mix.
It is also a moment where the state demonstrates the supremacy of its powers against an individual; and where the state exposes the fullness of its commitments to its founding principles. That didn’t happen here.
The US Supreme Court failed. It weakened the Establishment Clause and added another decision that favors one religion, Christianity, above others.
Writing for the dissent, Justice Elena Kagan described the decision as “profoundly wrong” citing the court’s 1982 decision in Larson v. Valente: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
Justice Kagan went on to note that the process of the decision was equally flawed. She pointed out three important components to the decision that affects all of us living in the United States. First, the Supreme Court did more than lift the execution. It obviated the Eleventh Circuit courts desire to hear the claim in full. The Supreme Court rendered a decision without allowing the full process of fact-finding sought by the lower court. She noted, “this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.”
Second, the majority opinion did not affirm that Alabama had proved its case. The Supreme Court circumvented the need for proof and moved forward without question Alabama’s decision process. Justice Kagan asked “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.” She added “Nor does the majority, which stuck to the procedural aspects of the case.”
Finally, and perhaps most gravely, Justice Kagan noted that the majority decided as they did because Ray decided to wait too long to file his petition. Kagan writes that “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”. In other words, correctly following the process removed the possibility of an appropriate timeline for petition and thus no petition was possible.
This favoring of Christianity isn’t really news either. The US Supreme Court has moved to favor Christianity in the Masterpiece Cake decision, the Hobby Lobby decision and some lesser-known decisions like the Lutheran Church in Missouri having the right to receive public funds for re-surfacing its playground and other religious orders receiving exemptions under the Affordable Care Act for contraception. While the Court has supported the rights of minority faiths in other decisions, it still seems that on balance, there is subtle and consistent favoring of one religion over another.
We think the dissenters are correct. We think Pagans heard the result loud and clear: Christianity is the preferred religion whose clerics will be afforded special privileges to enter any space in society regardless of religious objection or spiritual need. Despite the case hinging on truly heinous crimes, the state has moved again to delicately strip privileges of minority faiths, chipping away at their freedoms, to sculpt a Christian landscape.