SCOTUS: Condemned Inmate Waited Too Long to Raise Religious Discrimination Issue

As his execution date approached and final preparations were made, Domineque Ray requested to have his pastor present. The prison told him no, but that an imam, a Muslim prayer leader, would be permitted. Citing his religious freedom, Ray requested a stay of execution so that he could fight to have the religious leader of his own faith with him in his last moments. The stay was granted, and the Supreme Court of the United States ruled in Ray’s favor, protecting his Christian faith from this discrimination.

Wait, no.. that’s not how it went. Ray is actually a practicing Muslim who requested the presence of his imam and was told no; he’d have to make do with the prison’s Christian chaplain or no spiritual leader at all as he met his state-sponsored end. And SCOTUS agreed, in a 5–4, libs vs. cons decision. Ray was put to death Thursday night without the imam present.

As with all things, the facts are more complicated than what can be fit in a headline.

Without going into details of Ray’s crime, which may tend to skew your analysis of this issue against him, suffice to say he was convicted of a heinous murder in the late 1990s. In 2006, he converted to Islam while in prison. His appeals were exhausted, the date was set for him to die and the necessary final preparations made. A few weeks before the execution date, Ray put in his request to have his imam present to pray with and comfort him as he was put to death. His imam was no stranger to the prison; he had been there regularly since 2015 to meet the religious needs of the prison’s Muslim population. According to prison officials and the state of Alabama, Ray’s request was denied because regulations forbid the presence of anyone in the death chamber who is not employed by the state Department of Corrections and has not been trained in execution protocol. However, they would allow Ray to meet with the imam up until it was time to go to the room to be strapped down.

Ray’s lawyers filed an appeal and a motion to stay, which was denied by the U.S. District Court, based on Ray “waiting to the eleventh hour” to raise the issue. But the 11th Circuit overturned the District Court and issued a stay of execution, reasoning that “it looks substantially likely to us that Alabama has run afoul of the establishment clause of the First Amendment.”

In its application to vacate the stay, the State of Alabama nonsensically reasons that because 45 inmates had been put to death at the prison during Ray’s time on death row, he should have known the procedure (as if those inmates returned to report the details.) Justices Thomas, Gorsuch, Roberts, Alito, and Kavanaugh all agreed. They granted the state’s petition to vacate the stay, under the same reasoning as the District Court: because Ray waited too long.

Ah, yes, the old doctrine of waiting too long.

While it is not unheard of for the Court to consider timeliness in its analysis of the merits of a case, there is no specific rule or law that time-bars a claim such as Ray’s. It seems that a decision of this much gravity should rest on much firmer ground than a nebulous, arbitrary standard of “you took too long”.

Even if timeliness was a legitimate grounds for rejecting Ray’s claim, the facts show that Ray raised the issue when he found out it would be an issue. As Justice Kagan points out in her succinct and forceful dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, the prison refused to give Ray a copy of the rules and procedures for executions. Even beyond that, Alabama law provides that the inmate may have his or her chosen spiritual adviser “present at an execution.” It makes no distinction that this extends only as far as the death chamber door. In fact, common sense would suggest there is no greater moment of need for comfort and spiritual guidance than the moment at which one is knowingly about to die. There was simply no reason, prior to the denial of his request, that Ray should have known of the policy. Thus, there was no way he could have raised the issue any earlier than he did.

The State contends that their policy is for the safety and security of the staff and, ironically, the condemned. Limiting to employees only, they reason, ensures that only those trained in the execution protocol are in the death chamber. As for why the imam, or a rabbi, or other non-Christian faith leader could not also be trained in protocol, Kagan points out that “the state has no answer.”

In fairness, we can speculate that had Ray requested some other outside minister of the Christian faith, the same rules would have applied. There are some real questions here about whether or not the prison’s policy is discriminatory on its face, although the effect unquestionably will result in the denial of certain prisoners of their spiritual leader of choice. And there is no constitutional right to have a spiritual leader present in the execution chamber, let alone the cleric of one’s choosing. But when the law expressly allows such a thing, should it not extend to all faiths?

Perhaps the answer is to treat all faiths the same by not allowing any religious leader into the room, Christian or otherwise. That is one of many possibilities that the Supreme Court could have contemplated. Their refusal to do so, particularly along split ideological lines, might lead one to wonder whether they would have done the same if the scenario presented in the leading paragraph of this piece had occurred rather than the opposite.

Domenique Ray is dead now, and one can only hope he made peace with himself and his higher power before he was taken into that room. The issue he tried to bring before the Court remains undecided. We should hope that some other similarly situated inmate raises the same claims- on a time schedule more satisfactory to the powers that be.

Originally published at on February 9, 2019.