Cite as: 586 U. S. ____ (2019)

1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS v. DOMINEQUE
HAKIM MARCELLE RAY
ON APPLICATION TO VACATE STAY
No. 18A815.

Decided February 7, 2019

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the
Court, is granted.
On November 6, 2018, the State scheduled Domineque
Ray’s execution date for February 7, 2019. 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, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting from grant of application to vacate stay.
Holman Correctional Facility, the Alabama prison
where Domineque Ray will be executed tonight, regularly
allows a Christian chaplain to be present in the execution
chamber. But Ray is Muslim. And the prison refused his
request to have an imam attend him in the last moments
of his life. Yesterday, the Eleventh Circuit concluded that
there was a substantial likelihood that the prison’s policy
violates the First Amendment’s Establishment Clause,
and stayed Ray’s execution so it could consider his claim
on its merits. Today, this Court reverses that decision as

 2

DUNN v. RAY
KAGAN, J., dissenting

an abuse of discretion and permits Mr. Ray’s execution to
go forward. Given the gravity of the issue presented here,
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”).
To justify such religious discrimination, the State must
show that its policy is narrowly tailored to a compelling
interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to
show that its wholesale prohibition on outside spiritual
advisers is necessary to achieve that goal. Why couldn’t
Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no
answer. Why wouldn’t it be sufficient for the imam to
pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The
State doesn’t say. The only evidence the State has offered
is a conclusory affidavit stating that its policy “is the least
restrictive means of furthering” its interest in safety and
security. That is not enough to support a denominational
preference.

 Cite as: 586 U. S. ____ (2019)

3

KAGAN, J., dissenting

I also see no reason to reject the Eleventh Circuit’s
finding that Ray brought his claim in a timely manner.
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. The State contends that Ray
should have known to bring his claim earlier, when his
execution date was set on November 6. But the relevant
statute would not have placed Ray on notice that the
prison would deny his request. To the contrary, that
statute provides that both the chaplain of the prison and
the inmate’s spiritual adviser of choice “may be present at
an execution.” Ala. Code §15–18–83(a) (2018). It makes
no distinction between persons who may be present within
the execution chamber and those who may enter only the
viewing room. And the prison refused to give Ray a copy
of its own practices and procedures (which would have
made that distinction clear). So there is no reason Ray
should have known, prior to January 23, that his imam
would be granted less access than the Christian chaplain
to the execution chamber.
This Court is ordinarily reluctant to interfere with the
substantial discretion Courts of Appeals have to issue
stays when needed. See, e.g., Dugger v. Johnson, 485 U. S.
945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J.,
dissenting). Here, Ray has put forward a powerful claim
that his religious rights will be violated at the moment the
State puts him to death. The Eleventh Circuit wanted to
hear that claim in full. Instead, this Court short-circuits
that ordinary process—and itself rejects the claim with
little briefing and no argument—just so the State can
meet its preferred execution date. I respectfully dissent.