By a 5-4 vote, the court said Domineque Ray could be executed without an imam present. One appellate lawyer said he was shocked by the “indefensible” decision.
The Supreme Court’s late-night, two-paragraph order that sent an Alabama Muslim inmate to his execution last week has become the court’s most controversial act of the term, drawing intense criticism from the right and left, the Washington Post reports. Five conservative justices agreed with Alabama officials that Domineque Ray could be put to death without an imam present, although a Christian chaplain who works for the prison system is in place for other executions. The court did not deal with the religious issue, saying that Ray made his request too late. His lawyers and liberal justices disputed that.
“I can’t recall the last time that I was as shocked by a Supreme Court decision,” said Deepak Gupta, a lawyer who argues before the justices. “This decision is indefensible on the merits, and the court doesn’t even bother to try.” Amir Ali of the MacArthur Justice Center and Harvard Law School said the order was in contrast with recent decisions that have protected religious rights. “Consider the opposite circumstance — a Christian person who is told that, during the final moments of his life, he can have only the services of an imam,” Ali said. “It is hard to imagine the court reaching the same result as it did here. And that’s a real problem because the very purpose of the Establishment Clause is to prevent this sort of religious preference.” Criticism from the right also was strong. “The Supreme Court Upholds a Grave Violation of the First Amendment,” was the headline above conservative commentator David French’s article in the National Review. In a dissent that called the majority’s decision “profoundly wrong,” Justice Elena Kagan said Alabama law provides that “both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at an execution.’ ”