A divided Supreme Court cleared the way for Alabama to execute a Muslim inmate after denying his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber.

By a vote of 5-4, the justices lifted a stay of execution imposed yesterday by the U.S. Court of Appeals for the 11th Circuit. The Atlanta-based court had put the execution of Domineque Ray, who was convicted of raping and murdering 15-year-old Tiffany Harville in 1995, on hold, reasoning that the prison’s policy of excluding the imam from the execution chamber while allowing a Christian chaplain likely violates the Constitution’s establishment clause, which bars the government from favoring one religion over another. But the justices reversed that ruling today, explaining that Ray had waited too long to challenge the policy: Although today’s execution date had been set back in early November, Ray didn’t go to court until January 28, 2019.

Justice Elena Kagan – joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – dissented from the Supreme Court’s decision to lift the stay, calling it “profoundly wrong.” Allowing an inmate to have a Christian minister but not a Muslim imam by his side at his execution, Kagan wrote, “goes against the Establishment Clause’s core principle of denominational neutrality.”

Kagan pushed back against the majority’s suggestion that Ray’s execution could go forward because he had sought relief too late. Ray couldn’t have brought this challenge earlier, she explained, because he would not have known that his imam would not be allowed in the execution chamber until January 23, when the warden denied Ray’s request to have the imam in the chamber as his spiritual adviser.

Kagan stressed that the Supreme Court is “ordinarily reluctant to interfere with the substantial discretion” that federal courts have to issue stays. And in this case, she observed, “Ray has put forward a powerful claim that his religious rights will be violated at the moment the state puts him to death.” Although the 11th Circuit would have reviewed that claim, Kagan concluded, the Supreme Court instead “short-circuits that ordinary process” “just so the State can meet its preferred execution date.”

This post was first published at Howe on the Court.

Recommended Citation: Amy Howe, Divided court allows Alabama execution to go forward, SCOTUSblog (Feb. 7, 2019, 10:14 PM), https://www.scotusblog.com/2019/02/divided-court-allows-alabama-execution-to-go-forward/