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Even in Death, Muslim Rights Are Violated

Arjun Singh Sethi
Georgetown University Law Center & Vanderbilt University Law School

Domineque Ray robbed, raped, and murdered fifteen-year-old Tiffany Harville in 1995, a crime for which he was sentenced to death. Ray later became an observant Muslim, joining a community that now represents 10–15 percent of the total U.S. prison population.

Ray was devout and genuine in his beliefs, according to Yusef Maisonet, a local imam who routinely visits and counsels Muslim prisoners at Holman Correctional Facility in Atmore, Alabama. And so, as his date of execution, February 7, 2019, drew nearer, Ray made a routine request: he wanted Imam Maisonet to be by his side as he passed from this world.

On January 23, 2019, the prison denied Ray's request, stating that under prison policy the only spiritual adviser that could be present in the execution room was the prison chaplain. Ray brought suit in federal court five days later seeking to vindicate his religious rights. The case quickly moved through the judicial system, reaching the Supreme Court on February 7.

That same day, just hours before the scheduled execution, a divided Supreme Court dismissed Ray's claim, stating that he had waited too long to bring it. In a strongly worded dissent, four justices called the ruling "profoundly wrong," noting that Ray "put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death."

The Establishment Clause

The Establishment Clause of the U.S. Constitution prohibits the government from favoring one religion over another, faith over secularism, or secularism over faith. The drafters of the Constitution were deeply concerned about religious persecution, many of them having experienced it first-hand, which is why they enshrined this prohibition in the very First Amendment to the Bill of Rights. Courts, in turn, have repeatedly found that denominational preference by the government chills and deters free religious expression and stigmatizes small and less popular traditions. Preferential treatment can even incite hate and bias against unfavored communities and those with dissident beliefs. The Supreme Court has used the Establishment Clause to strike down religious displays at courthouses, religious decorations on public land, clergy-led prayer at public school graduations, and student-led and initiated prayers over a school's public address system.

To justify religious favoritism, the government must generally demonstrate a compelling interest and show that its policy is narrowly tailored to achieving that interest. It's an extraordinarily high constitutional standard and few policies can meet it. And yet, in the case of Ray, the Court abandoned this jurisprudence in a startling and revealing decision.

Ray's Rights Were Violated

The Supreme Court's decision shows first and foremost the bias and bigotry that has become commonplace in SCOTUS reasoning, in particular towards Muslim communities. Just last year, in a 5‒4 opinion, a divided Court upheld President Trump's travel ban, finding that it was a lawful exercise of executive power. It didn't matter to the Court that Trump had made hateful and derogatory comments about Muslims on the campaign trail. He could wipe away that discriminatory and racial animus through an easy pivot: so long as he offered a few findings of facts that supported the reasoning behind the travel ban and window-dressed it with several non-Muslim majority countries, Trump could proceed with one of his original campaign promises—the banning of Muslims. The Court that day prescribed a formula for how to promulgate laws rooted in bias. Preach hate and division, mask it by drafting a facially neutral policy, and offer some iota of evidence that the policy is "plausibly related to the government's stated objective to protect the country." The policy would then pass Constitutional muster.

Perhaps the decision to deny Ray's request should have been expected, given the Court's previous hostility to Muslims. Indeed, the Court may care deeply about vindicating religious liberties and enforcing governmental neutrality in matters of faith, except when it comes to Muslims.

Imagine, for instance, if the identities were reversed. What if Ray was Christian and the prison permitted only an imam to be present at his execution? The five Supreme Court justices who allowed the execution to proceed, all of whom are Christian men, surely would have objected and ensured that their Christian brother had the benefit of a chaplain as he passed.

The opinion also shows that the Court is more interested in vindicating the religious rights of commercial businesses than those of criminal defendants. In another controversial decision, in 2018, the Court upheld the right of Masterpiece Cakeshop, a bakery in Colorado, to refuse to provide a wedding cake to a gay couple on the grounds that it violated the bakery owner's religious beliefs. Although the reach of that case is limited—the court found that the Colorado Civil Rights Commission was openly hostile to the bakery and failed to adopt a neutral approach in evaluating the case—the Court nevertheless made an important choice that day. It weighed competing interests and found it more important to affirm governmental impartiality and vindicate religious liberty than to protect the LGBTQ+ community from discrimination. Where was this same zeal when Ray sought relief? Surely his right to an imam at the time of his execution is more important than the right of a baker to discriminate against a gay couple.

Finally, the Court's reasoning shows how often and the extent to which the body acts as an extension of state power. The Court would rather serve the elite and strong, rather than protect the weak and vulnerable. Here, the Court sided with the government despite scant evidence in support of the latter's position. Although the government claimed a compelling interest in prison safety and security, they never explained why a non-Christian spiritual adviser would impede these goals, or why this imam, who had spent time at the prison since 2015, could not be trained in the relevant execution room protocols. The prison employed a facially discriminatory policy that favored one faith over another and was not even required by the Court to offer a cogent explanation.

Nor did the state establish that Ray was late in filing his case. The prison refused to give Ray a copy of its policies, and he thus had no way of knowing that his imam couldn't be present at his execution until January 23, the day the prison denied his request. Just five days later, two of which fell on the weekend, Ray brought suit in federal court. Though he offered compelling evidence elucidating this timeline, the government hardly bothered. And still, the highest court in the land deferred to the state over the individual, and the prison over the prisoner.

So blinded was the court by the power and authority of the government that it chose death over life. If ever there was a time for caution, it was here; if ever there was a time to pause and reconsider, it was now. Ray could not have avoided the inevitable, after all: he was to be executed, the only question was with whom. But in the twisted eyes of the Justices, the injury to the state—a short delay in execution—outweighed the religious rights of a Muslim man about to leave this world.

Mere hours after the Court rendered its macabre decision, the State of Alabama executed Ray by lethal injection. Even in his very last moments, the United States of America refused him mercy.

Bibliography

Abington School District v. Schempp, 374 U.S. 203 (1963).

Domineque Hakim Marcelle Ray v. Commissioner, Alabama Department of Corrections, D.C. Docket No. 2:19-cv-00088-WKW-CSC (11th Circuit: 2009).

Engel v. Vitale, 370 U.S. 421 (1962).

Huq, Aziz. "The travel ban decision echoes some of the worst Supreme Court decisions in history." Vox, 26 June 2018.

Jefferson S. Dunn, Commissioner, Alabama Department of Corrections v. Domineque Hakim Marcelle Ray, 586 U.S. ____ (2019).

Larson v. Valente, 456 U.S. 228 (1982).

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ____ (2018).

Smith, David, and Lucia Graves. " Supreme Court Sides With Baker Who Refused to Make Gay Wedding Cake." The Guardian, 4 June 2018.

"Why Inmates Are Converting to Islam." AJ+, 8 Apr. 2018.

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