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

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.


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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33 thoughts on “SCOTUS: Condemned Inmate Waited Too Long to Raise Religious Discrimination Issue

    • Justice Roberts: “Had the complaint arisen in different circumstances we would agree with Ray’s claim to unconstitutional discrimination by the State of Alabama, but given the timing the court rejects that argument as merely a last ditch effort to prolong Ray’s life.” {{slams the gavel down}}

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    • How do you raise an issue you are unaware of? They were making the arrangements, final meal requests etc, when he first found out this would be a problem. He raised it at the first possible opportunity.
      Beyond that, there would not have been any delay if they’d made a very simple concession. They caused the attempt to delay by making him have to take it to the courts.
      In any event, an arbitrary “you took too long”, where there is no codified time limit, is a sorry excuse for grounds to reject a constitutional claim that they’d “otherwise agree” with.

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      • My impression is the court feels the system is being abused by anti-death penalty activists. Does this issue have merit? Maybe… although this sort of religious objection opens yourself up to conversion to the flying spaghetti god and insisting delays because only a personal priest will do.

        Justices cited the fact that Ray did not raise the challenge until Jan. 28 as a reason for the decision. https://deathpenaltynews.blogspot.com/2019/02/alabama-executes-domineque-ray.html

        He was executed less than two weeks later on Feb 8th.

        He’d been on death row for… I think 20 years(ish). How many other times have his crew attempted to desperately find or invent other merit-worthy issues? That link I put up had 7 pages of people on Alabama’s death row. Some have been sitting on Alabama’s death row for 30+ or even 40 years.

        Also for perspective, Ohio is scheduling executions as far out as 2023. https://deathpenaltyinfo.org/upcoming-executions#year2019

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        • It doesn’t matter, imo, if it WAS simply a delay tactic. A constitutional right is a constitutional right regardless of your sincerity in asserting it. They must be protected.

          Once again: two weeks before the execution date was when they began making arrangements. That’s the point at which he requested and was denied his cleric. He was refused a copy of the rules and procedures prior. He had no way of knowing until then.
          It only posed a delay when they refused his request. He didn’t go looking for this cause of action-it was imposed upon him.
          As for the slippery slope argument: they could properly train the condemned’s chosen cleric on protocol. Or they could deny a minister to every one. The problem here is special treatment of one specific religion to the exclusion of all others.

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          • It doesn’t matter, imo, if it WAS simply a delay tactic. A constitutional right is a constitutional right regardless of your sincerity in asserting it. They must be protected.

            He’s had 20 years to get his act together. The justice system has decided that “justice” in this case is for him to die, presumably asap.

            If *that* is actually justice then there needs to be a way to schedule an execution in years and not decades, or even better in months; If for no other reason but to let everyone else go on with their lives.

            At some point the bell needs to ring and the game needs to end. It’s unrealistic to expect him to agree to his own execution. It’s unrealistic to expect the anti-death fanatics to agree to it either. He may not have run out of arguments but he did run out of time.

            And yes, it’s not fair… but “fair” in this case would have been executing him a long time ago, so big picture he’s ahead in the game.

            As for the slippery slope argument: they could properly train the condemned’s chosen cleric on protocol. Or they could deny a minister to every one. The problem here is special treatment of one specific religion to the exclusion of all others.

            How long does it take to train/vet someone enough to put him on the “can be there” list?

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            • If “he had 20 years to get his act together”, then they had 20 years to accommodate his request and train/vet the person.

              Hard to do when nobody ever told him the rules until it was time to carry out the sentence. What part of that are people not understanding? He couldn’t have raised the issue sooner because he had no way of knowing. Even the law, if he’s presumed to have known it, says the condemned may have the religious leader of his choosing present at the execution. How would he have known they decided to limit their interpretation of this law to outside the chamber?
              Personally, I don’t care if he died scared and in spiritual anguish. I DO care about upholding constitutional law equally for everyone.

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              • Hard to do when nobody ever told him the rules until it was time to carry out the sentence. What part of that are people not understanding?

                The part where it doesn’t comport with their predetermined view of the case.

                You have to raise the issue in a timely fashion. There are mechanisms in place to prevent you knowing the issue exists until it’s too late to raise it timely. It’s no excuse for being a laggard in raising it.

                Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

                “That’s some catch, that Catch-22,” he observed.

                “It’s the best there is,” Doc Daneeka agreed.

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              • If “he had 20 years to get his act together”, then they had 20 years to accommodate his request.

                Which he made 10 days before his execution.

                How would he have known they decided to limit their interpretation of this law to outside the chamber?

                The bulk of the people he interacts with are presumably experts in the nuts and bolts of carrying out the process. It’s a pity he didn’t ask anyone about this issue… but of course this line of thought makes the breathtaking assumption that he wasn’t simply looking for ways to throw sand into the gears.

                I DO care about upholding constitutional law equally for everyone.

                Part of the “committing heinous crimes” package is “losing some constitutional rights”. Imperfect religious accommodations can be added to the list.

                I think there’s a LOT to be said for making the process more transparent and more competent. However that will also probably make it faster… which I suspect is very much part of the problem from some points of view.

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  1. I’ve tried to find the opinion online, but the only thing I’ve found is Kagan’s dissent. Does that mean the majority just issued an order without offering an opinion? Apologies if I should’ve understood that from the OP.

    The reason I’m checking is that I’d like to have a clearer idea of which facts were agreed on and which were in dispute. I haven’t read Kagan’s dissent yet, so maybe she makes that clear.

    ETA: d’oh! I didn’t realize that what I thought was the “dissent” was actually the entire case. A paragraph from the court and then Kagan’s dissent. Sorry for the confusion.

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    • Now that I’ve read (the 3 pages of) the decision, it’s still not clear to me what facts are in dispute and what facts are not. I didn’t read the link to the new story Em linked to or any other post I’ve seen on this case. And I haven’t read any of the briefs, etc. So maybe they clarify.

      Knowing what I do from what little is presented, however, I have to say the court was wrong in refusing to stay the execution. I should say that while the first amendment issue is important, to me the crueller aspect of the decision is the timeliness argument, again, with me not knowing what is and is not in dispute.

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    • It is an odd lack of a majority ruling. At least I’m not used to seeing that.

      But I’m confused about something Kagan wrote in her dissent. “I also see no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner.” The majority didn’t say that, though. They pulled a quote from Gomez v District Court: “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” That’s different. It’s not saying that Ray failed to raise this issue sooner; it’s saying that the lateness of a motion may be considered as a factor.

      Did the Court ever “reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner”?

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      • She is referring to the procedural history of the case. The district court found Ray’s claim was not timely; the 11th circuit said it was timely and granted the stay of execution while the first amendment issue was litigated. The state appealed to SCOTUS to vacate the stay, before the 11th circuit could rule on the merits of the constitutional claim.
        By vacating the stay, the Court is implicitly rejecting the 11th Circuit’s ruling re: timeliness, because that is the only thing the 11th circuit has ruled on.

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