The Supreme Court can’t make everyone happy, but it rarely makes everyone mad. Chief Justice John Roberts and his four conservative colleagues did just that last week when they let the state of Alabama execute Domineque Ray, a Muslim prisoner, without honoring his request to have an imam present at his death. Justice Elena Kagan, in a dissent joined by the other three liberal justices, condemned the majority opinion for giving no attention to Ray’s religious-freedom claims. “Given the gravity of the issue presented here,” she wrote, “I think that decision profoundly wrong.”

Observers across the political spectrum agreed with Kagan’s assessment. ThinkProgress described the ruling as “a truly shocking attack on Muslims.” National Review’s David French called it “a grave injustice,” adding, “The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.” Rod Dreher, a prominent conservative Christian writer, said the court’s decision was a “profound moral wrong, and it should not be forgotten.” Neal Katyal, a former acting U.S. solicitor general in the Obama administration, compared it to some of the most shameful rulings in the court’s history.

100 years from now, law students will read about this decision. It may be read alongside Dred Scott, Plessy v. Ferguson, Korematsu, and the Chinese Exclusion Act cases. https://t.co/SwqM547yGV — Neal Katyal (@neal_katyal) February 8, 2019

The near-unanimity of this criticism is remarkable by the Supreme Court’s recent standards. By letting Alabama execute Ray without equal access to the clergy of his faith, its conservative justices highlighted two disturbing trends in its recent decisions: the unequal treatment of Muslims who have faced religious discrimination, and an unyielding desire to preserve the death penalty.



Ray’s case dates back to 1999, when an Alabama jury convicted him for the rape and murder of a 15-year-old girl. He spent the next 20 years on death row while his appeals process worked its way through the state and federal courts. Last November, Alabama scheduled his execution for February 7. The prison warden met with Ray on January 23 to discuss the procedures for his upcoming lethal injection. It was then that Ray was told that the prison chaplain, a Protestant Christian minister, was required to be in the execution chamber during his death.

There may be no moment where it’s more important to have a cleric of one’s faith than at the moment of one’s death. Ray, who was a devout Muslim, asked if his imam could be present instead. The state said no. He asked if the minister could be excluded from the execution chamber. The state refused that request as well. Five days after the meeting, on January 28, Ray filed a lawsuit in federal court to halt his execution. He argued that the prison’s policy violated federal religious-discrimination laws as well as the First Amendment’s Establishment Clause, which forbids government officials from elevating one faith or denomination above another.

