JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS
DOMINEQUE HAKIM MARCELLE RAY
APPLICATION TO VACATE STAY
application to vacate the stay of execution of sentence of
death entered by the United States Court of Appeals for the
Eleventh Circuit on February 6, 2019, presented to Justice
Thomas and by him referred to the Court, is granted.
November 6, 2018, the State scheduled Domineque Ray's
execution date for February 7, 2019. Because Ray waited until
January 28, 2019 to seek relief, we grant the State's
application to vacate the stay entered by the United States
Court of Appeals for the Eleventh Circuit. See Gomez v.
United States Dist. Court for Northern Dist. of CaL, 503
U.S. 653, 654 (1992) (per curiam) ("A court may consider
the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.").
Justice Kagan, with whom Justice Ginsburg, Justice Breyer,
and Justice Sotomayor join, dissenting from grant of
application to vacate stay.
Correctional Facility, the Alabama prison where Domineque Ray
will be executed tonight, regularly allows a Christian
chaplain to be present in the execution chamber. But Ray is
Muslim. And the prison refused his request to have an imam
attend him in the last moments of his life. Yesterday, the
Eleventh Circuit concluded that there was a substantial
likelihood that the prison's policy violates the First
Amendment's Establishment Clause, and stayed Ray's
execution so it could consider his claim on its merits.
Today, this Court reverses that decision as an abuse of
discretion and permits Mr. Ray's execution to go forward.
Given the gravity of the issue presented here, I think that
decision profoundly wrong.
clearest command of the Establishment Clause," this
Court has held, "is that one religious denomination
cannot be officially preferred over another." Larson
v. Valente, 456 U.S. 228, 244 (1982). But the
State's policy does just that. Under that policy, a
Christian prisoner may have a minister of his own faith
accompany him into the execution chamber to say his last
rites. But if an inmate practices a different
religion-whether Islam, Judaism, or any other-he may not die
with a minister of his own faith by his side. That treatment
goes against the Establishment Clause's core principle of
denominational neutrality. See, e.g., Epperson v.
Arkansas, 393 U.S. 97, 104 (1968) ("[Government]
may not . . . aid, foster, or promote one religion or
religious theory against another"); Zorach v.
Clauson, 343 U.S. 306, 314 (1952) ("The government
must be neutral when it comes to competition between
justify such religious discrimination, the State must show
that its policy is narrowly tailored to a compelling
interest. I have no doubt that prison security is an interest
of that kind. But the State has offered no evidence to show
that its wholesale prohibition on outside spiritual advisers
is necessary to achieve that goal. 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. The only evidence the State has offered is a
conclusory affidavit stating that its policy "is the
least restrictive means of furthering" its interest in
safety and security. That is not enough to support a
see no reason to reject the Eleventh Circuit's finding
that Ray brought his claim in a timely manner. The warden
denied Ray's request to have his imam by his side on
January 23, 2019. And Ray filed his complaint five days
later, on January 28. The State contends that Ray should have
known to bring his claim earlier, when his execution date was
set on November 6. But the relevant statute would not have
placed Ray on notice that the prison would deny his request.
To the contrary, that statute provides that both the chaplain
of the prison and the inmate's spiritual adviser of
choice "may be present at an execution." Ala. Code
§15-18-83(a) (2018). It makes no distinction between
persons who may be present within the execution chamber and
those who may enter only the viewing room. And the prison
refused to give Ray a copy of its own practices and
procedures (which would have made that distinction clear). So
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.
Court is ordinarily reluctant to interfere with the
substantial discretion Courts of Appeals have to issue stays
when needed. See, e.g., Bugger v. Johnson, 485 U.S.
945, 947 (1988) (O'Connor, J., joined by Rehnquist, C.
J., dissenting). Here, Ray has put forward a powerful claim
that his religious rights will be violated at the moment the
State puts him to death. The Eleventh Circuit wanted to hear
that claim in full. Instead, this Court short-circuits that
ordinary process-and ...