The Supreme Court in the Twilight Zone. February 17, 2019

This week I found myself pondering a story that brings together social, moral, religious, and legal dilemmas, all wrapped up in a single dramatic moment of life and death.

One of the great mysteries of life centers not on one’s earthly life, but on what happens right after the last breath is exhaled. Generations of theologians have produced mountains of pious books, the greatest philosophers have agonized over deep moral quandaries, and terrified believers have repented the worst (and often imagines) sins, all in the most monumental human effort to comprehend, ascertain, and prepare for the afterlife.

The person at the center of this particular true story is not a sympathetic character by a long stretch. Domineque Ray, 42, was convicted and sentenced to death in 1999 for the rape and murder of a teenage girl, Tiffany Harville, in Selma, Alabama. (He was simultaneously serving time for the murder of two teenage boys the year before Tiffany Harville’s murder). As with most capital punishments, it had taken two decades for various judicial proceedings and appeals to pave the way for the actual execution, which was scheduled for Thursday, February 7, 2019.

In fact, the last legal barrier was cleared less than two hours before Ray was executed, when the United States Supreme Court (in a 5 to 4 decision) denied Ray’s request (which the prison had refused) to have a clergy of his own Muslim faith accompany him into the execution chamber, rather than the prison’s chaplain, who is a Christian minister. The Supreme Court’s decision reversed a decision by the Eleventh Circuit Court of Appeals that granted a stay of execution based on the reasoning that the prison’s policy (to provide only a Christian clergyman during executions, no matter what’s the particular faith of the condemned prisoner) violated the U.S. Constitution’s First Amendment’s Establishment Clause.

The majority in the Supreme Court gave only one reason: “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, in her dissenting opinion wrote: “I think that decision profoundly wrong. “The 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 sects”).”

The majority’s reasoning (that Ray waited too long) begs several questions: first, after twenty years of legal proceedings, what damage could possibly be inflicted if the court allowed a short delay in order to consider this important constitutional issue on the merits. Second, the relief Ray sought did not involve the execution itself, his conviction, or his punishment, but rather a technical aspect of the execution that came up only after all substantive appeals had been resolved. (In Justice Kagan’s words: “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.”) Third, while any decent person would shudder at the heinousness of the crimes Ray committed in 1995, today, in 2019, as his life is about to be terminated by the government according to the law, why do it in a manner that unnecessarily tramples his religion and hinders his ability to fully repent in accordance with his faith at the moment of paying the ultimate price for his crimes?

“Justice justice you shall pursue,” says the Bible (Deuteronomy 16:18), repeating the word “justice” twice in order to emphasize that it’s not enough to achieve justice, but the way we pursue it must also be just and fair. Similarly, in the famous 1924 English case of R v Sussex Justices, Ex parte McCarthy (concerning the appearance of judicial bias), Lord Hewart CJ said that it “is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Considering the polarized political, racial, and xenophobic atmosphere in America today (and the Supreme Court’s recent qualified approval of the Administration’s Muslim travel ban), it is only reasonable for many to wonder: Would the Court’s majority have ruled differently if Ray were not an adherent of Islam?

Avraham Azrieli