Guest post by Mandy Fatemi. Mandy is a 3L from Jacksonville, Florida. She received her Bachelor’s Degree from the George Washington University and worked in the federal government prior to attending law school. Mandy is passionate about election law, criminal justice reform, and women’s rights issues. She is also a former Online Content Editor and past contributor to the Amicus Blog.

By a 5-4 decision, the Supreme Court vacated a stay of execution, and denied an incarcerated Muslim man’s request to have his imam by his side in the execution chamber. The same prison that denied Domineque Ray’s request, however, allows individuals condemned to Death Row access to a Christian chaplain. The prison is in Alabama, which is the sole state whose execution protocol allows only a Christian religious leader to be present in the execution chamber.

This holding, which Justice Kagan correctly labeled as “profoundly wrong” in her dissent, has ignited a national conversation about the death penalty and religious freedom. The Eleventh Circuit Court of Appeals issued a stay of execution after determining that Ray had demonstrated a “powerful Establishment Clause claim.” The Establishment Clause under the First Amendment bars the government from preferring one religion over others. The prison prohibited Ray from having a cleric of his own religious faith present in the execution chambers, but allowed individuals on death row to have a Christian chaplain present under the same circumstances. In turn, the prison’s policy was contrary to clearly established law forbidding the government from favoring one religious denomination over another. The state of Alabama appealed the Eleventh Circuit’s decision, and a day later, the case appeared before the Supreme Court.

Far from being a neutral policy, the prison’s policy facially differentiates between various religions by only allowing Christian chaplains to be present inside the execution chambers. As both Justice Kagan and the Eleventh Circuit correctly recognized, the differential treatment non-Christian individuals receive at Holman Correctional Facility in Alabama violates the tenets of the Establishment Clause because the state fails to practice denominational neutrality. The constitutional injuries a death row individual suffers upon denial of his or her religious rights is exacerbated by the execution itself, which would permanently foreclose any avenues of relief.

For such a discriminatory policy to hold constitutional muster, courts will apply strict scrutiny, which requires the state to demonstrate that its policy is narrowly tailored to achieve a compelling state interest. Additionally, a policy burdening First Amendment rights will be invalidated absent a showing that the state used the least restrictive means to achieve its asserted governmental interest. The state prison alleged security interests for denying Ray’s request to have his imam present, saying it would pose a security risk to allow someone into the execution chamber who was not an employee of the state’s corrections department. But, in addition to the prison failing to show how its “wholesale prohibition on outside spiritual advisers is necessary to achieve that goal,” Ray’s imam, Yusef Maisonet, is a regular, pre-screened volunteer with the Alabama Department of Corrections. Indeed, Maisonet stated that he visits the correctional facility Ray was kept in once a month to lead prayers for Muslim individuals on Death Row. On these visits, Maisonet gathers with Muslim individuals in a locked cell, where they read prayers together. As Justice Kagan argued in her dissent, the state did not even attempt to explain why an imam could not receive the necessary training in execution protocol the state afforded to the Christian chaplain. Thus, the state failed to show that allowing only Christian clerics inside the execution chambers represented the least restrictive means to achieve its purported security interests.

In a one sentence order, the majority vacated the Eleventh Circuit’s holding, ruling that Ray waited too long to raise his Establishment Clause argument. However, this is misleading. As Justice Kagan pointed out, the prison’s warden denied Ray’s request to have his imam present on January 23, 2019. Ray filed his complaint five days later. The State argued that Ray should have known to bring his claim when his execution date was set on November 6, 2018. But this too is misleading because the state statute at issue did not give Ray adequate notice that the prison would deny his request to have his imam present inside the execution chamber. The statute simply declares that either the prison’s chaplain, or the Death Row individual’s preferred choice of spiritual advisor, “may be present at an execution.” Ala. Code §15-18-83(a) (2018). However, as the dissent pointed out, the statute is ambiguous on its distinction between those who can be present within the actual execution chamber and those who can only remain in the viewing room. Moreover, the prison refused to give Ray written copies of its procedures, which would have given Ray notice of the prison’s specific rules about whom could and could not be present within the chambers. Thus, Ray could not have reasonably known to bring his Establishment Clause claim on November 6.

Imagine if a Catholic prisoner was denied the ability to receive his or her final rites because the prison only allowed access to Rabbis. When we consider why Ray insisted on having his imam present, we must afford him the same assumptions we would hold towards our own respective faiths. Maybe he just wanted mercy. Maybe he just wanted comfort. Maybe he did not want to be alone. At the very least, he wanted to freely exercise his religion one last time. Five justices on the Supreme Court, however, sent a clear message to non-Christians: even in our final moments, we are deemed as lesser individuals who are unworthy of constitutional protections.

On Thursday February 7, 2019, at approximately 10:12 P.M, Domineque Ray died alone. The Supreme Court’s erroneous holding will live forever in infamy