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By: Lauren Wiggins
Research and Writing Editor, American Journal of Trial Advocacy
On February 6, 2019, the United States Court of Appeals for the Eleventh Circuit entered an emergency stay for the execution of Dominique Ray.[1] Ray petitioned for the stay after learning that, according to prison policy, a Christian minister would be present in the execution room, but his Imam would not.[2] Holman Correctional Facility, where Ray was incarcerated, had its chaplain attend every execution.[3] If asked by the inmate, the chaplain would pray with the inmate during the execution.[4] Otherwise, the chaplain remained standing at the room’s edge.[5] Alabama law permits a limited number of people to be present at an execution, including “the spiritual advisor of the condemned.”[6] The State’s policy is to have the prison’s chaplain present in the execution room, while requiring the inmate’s spiritual advisor to observe from the viewing room.[7] Ray requested that the prison’s chaplain be excluded from the execution room and that his Imam be granted access to the execution room, but the Warden denied both of these requests.[8] After the Warden denied Ray’s requests, Ray petitioned the district court for an emergency stay of his execution in order that Ray might bring a claim alleging the State’s policy violated the First Amendment.[9]
Ray alleged that the State’s prohibition of spiritual advisors, other than the prison’s Christian chaplain, in the execution chamber specifically violates the First Amendment’s Establishment Clause.[10] The Establishment Clause states that “Congress shall make no law respecting an establishment of religion . . . .”[11] The Supreme Court of the United States has interpreted the Establishment Clause to require the government to remain religiously neutral, not favoring any one religion over another.[12] In addition to actions of the federal government, the Supreme Court of the United States has incorporated the Establishment Clause’s demand for religious neutrality to apply to state governments.[13] The Eleventh Circuit noted that it had the ability to grant Ray a stay of execution only if his underlying claim was substantially likely to succeed.[14]
The Eleventh Circuit stated that Alabama’s practice of routinely providing for the presence of a Christian chaplain, while excluding religious leaders of other faith, did in fact exhibit a religious preference that could only be deemed constitutional upon surviving strict scrutiny review.[15] The State, therefore, must demonstrate that its policy serves a compelling interest and is the least restrictive means of serving that interest.[16] The State maintained that it had a security interest served by only allowing a prison employee in the execution chamber.[17] The Eleventh Circuit considered the State’s interest in maintaining prison security during execution to be a compelling interest, but the court observed that there were less restrictive means available to serve that interest.[18] One available method noted by the court was the facility’s ability to pre-clear and train Ray’s Imam before the execution.[19] Further, the court held that the policy was not made constitutional by the State’s acquiescence to exclude the prison chaplain from the execution chamber because the availability of a spiritual leader in the execution room was a benefit reserved specifically for Christians.[20] After concluding that Ray was substantially likely to win his constitutional claim, the Eleventh Circuit entered an emergency stay of his execution until the court could hear his claim.[21]
The Commissioner of the Alabama Department of Corrections, Jeff Dunn, appealed to the Supreme Court of the United States to vacate the stay.[22] In a four-sentence opinion, the Court vacated the stay.[23] The Court held that Ray had waited too long to petition for relief, noting that he filed for relief ten days before his execution was scheduled to occur.[24] Because the statute did not put Ray on notice that only a Christian chaplain could accompany him into the execution chamber, Ray did not know to bring his claim until after learning of the prison’s execution practices.[25] Justice Kagan, who characterized the Court’s decision as “profoundly wrong,”[26] maintained that Ray’s claim was timely because he filed a petition in the district court just five days after the warden denied Ray’s request to have his Imam present in the execution room.[27] Hours after the Court issued its opinion, Ray’s Imam watched from the viewing room as Ray was executed.[28] The constitutional challenge to Alabama’s policy that prohibited Ray’s Imam from being present in the execution chamber was never heard.
The issue of whether or not such a policy is constitutional is not yet resolved but will be soon. On March 28, 2019, the Supreme Court of the United States, in a 7-2 decision, granted Patrick Murphy a stay of execution.[29] Murphy alleges a Texas statute, which allows only Christian or Muslim religious advisors to be present in the execution chamber, violates the First Amendment’s Establishment Clause.[30] Murphy seeks to have a Buddhist spiritual advisor present in the execution chamber with him, rather than in the adjoining viewing room.[31] The issuance of the stay means that Texas cannot execute Murphy until his claim is heard, or he no longer has a claim, meaning the state allows a Buddhist spiritual advisor to be with him in the execution chamber.[32] Why, one month after its decision in Dunn v. Ray, did the Court issue a stay for Murphy to bring essentially the same challenge Ray would have brought had his stay not been vacated? In its two-sentence per opinion, the Court does not mention its previous ruling in Dunn. The best insight we have into the Court’s reasoning is found in the single footnote accompanying Justice Kavanaugh’s concurring opinion. Justice Kavanaugh’s lone footnote states that Murphy’s request is timely, because Murphy brought his claim one month before he was scheduled to be executed.[33] It is worth noting that Murphy filed his petition eight days before he was scheduled to be executed.[34] Murphy’s counsel did, however, contact General Counsel for the Texas Department of Corrections one month before his scheduled execution to request the presence of a Buddhist spiritual advisor in the execution chamber.[35] Some note that public reaction may have pressured justices, specifically those most eager to protect Christian liberty, to reconsider such a hasty decision regarding religious freedom.[36]
With a stay entered, Murphy has time to file a petition for certiorari that challenges the constitutionality of Texas’s law. Whether the Court will find the Texas law, and similar laws of other states, unconstitutional is uncertain; however, the Eleventh Circuit seems to believe such a practice is likely to be found unconstitutional.[37] In direct response to Murphy, the Texas Department of Criminal Justice banned all religious advisors from execution chambers, effective immediately.[38] Murphy’s stay is still entered, but other Texas inmates no longer have standing to challenge the law because it is not applied to them. Although a ruling issued in Murphy’s challenge of the former Texas law will not apply to death-row inmates in Texas, Murphy’s challenge of the law affects death-row inmates in states like Alabama by preempting religiously-discriminatory laws or practices of this nature.
For inmates currently on death row, and their advocates, these cases illustrate the need to educate oneself regarding a prison’s execution policies and raise any legal challenges as quickly as possible. The difference between ten and thirty days may be the sole factor the Court can highlight in deciding whether it will entertain an inmate’s challenge.
[1]Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689, 703 (11th Cir. 2019).
[2]Id. at 693.
[3]Id. at 694.
[4]Id. at 692.
[5]Id. at 692–93.
[6]Ala. Code §15-18-83(a)(4) (2019).
[7]Ray, 915 F.3d at 694.
[8]Id. at 693.
[9]Id. at 692.
[10]Id. at 693.
[11]U.S. Const. amend. I.
[12]Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689, 695 (quoting Larson v. Valente, 456 U.S. 228, 246 (1982)).
[13]See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (“Neither a state nor the Federal Government . . . can pass laws which aid one religion . . . or prefer one religion over another.”).
[14]Ray, 915 F.3d at 695.
[15]Id. at 697–98.
[16]Id. at 698.
[17]Id. at 694.
[18]Id. at 698–99.
[19]Id.
[20]Ray, 915 F.3d at 700.
[21]Id. at 703.
[22]Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (mem.).
[23]Id.
[24]Id.
[25]Id. at 662 (Kagan, J., dissenting).
[26]Id. at 661.
[27]Id.
[28]Kim Chandler, Dominique Ray, Muslim Inmate, Executed After Appeal Over Spiritual Adviser Fails, HuffPost (Feb. 7, 2019, 10:29 PM), https://www.huffpost.com/entry/dominique-ray-muslim-inmate-supreme-court-execution_n_5c5cf494e4b0a502ca3401a7.
[29]Murphy v. Collier, 139 S. Ct. 1111, 1111 (2019) (mem.).
[30]Id. at 1112 (Kavanaugh, J., concurring).
[31]Id. at 1111.
[32]Id.
[33]Id. at 1112, n.* (Kavanaugh, J., concurring).
[34]Murphy v. Collier, No. H-19-1106, 2019 WL 1369001, at *2 (S.D. Tex. Mar. 26, 2019).
[35]Id. at *1.
[36]See e.g., Mark Joseph Stern, Why Did Brett Kavanaugh Change His Mind About the Rights of Religious Minorities in the Execution Chamber?, Slate (Mar. 29, 2019, 5:30 PM), https://slate.com/news-and-politics/2019/03/patrick-henry-murphy-brett-kavanaugh-supreme-court-domineque-ray.html.
[37]See Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689, 701 (11th Cir. 2019) (“Faced with this substantial Establishment Clause claim . . . we [conclude] that Ray is substantially likely to succeed on the merits.”).
[38]See Doug Stanglin, Texas Prisons Ban All Chaplains From Execution Chamber After Supreme Court Ruling, USA Today (Apr. 4, 2019, 9:41 AM), https://www.usatoday.com/story/news/nation/2019/04/04/texas-executions-all-prisons-chaplains-banned/3362398002/.
American Journal of Trial Advocacy 
