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On The Front Lines

Rutherford Institute Asks Court to Protect Death Row Inmate’s Right to Choose Religion of Clergy Present During Execution

ATLANTA, Ga. — The Rutherford Institute has come to the aid of a death row inmate who has been told that he must either submit to the presence of a chaplain representing a religion of the government’s choosing or have no clergy at all present during his execution.

In an emergency amicus brief filed with the U.S. Court of Appeals for the Eleventh Circuit, The Rutherford Institute is challenging Alabama’s decision to only allow death row inmate Domineque Hakim Marcelle Ray, a Muslim, to have a Christian chaplain present when he is put to death by lethal injection on Feb. 7, rather than accommodating his request for clergy to be present who share his religious beliefs. Rutherford Institute attorneys argue that the state’s refusal to accommodate Ray’s religious beliefs violates the First Amendment and federal laws protecting religious freedom.

Affiliate attorneys Anand Agneshwar, Paige Hester Sharpe, and Murad Hussain of Arnold & Porter Kaye Scholer, LLP, in New York and Washington, D.C., assisted The Rutherford Institute in presenting its arguments.

“It doesn’t matter what religion is being endorsed—whether it be Christianity, Judaism, Islam, or something else—government officials cannot favor one religion over another,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This scenario—where the government dictates which religious beliefs are acceptable and which are not—is exactly why we have a clause in the First Amendment protecting religious freedom and prohibiting the government from establishing, or favoring, one religion over another.”

Domineque Ray was convicted of murder and sentenced to death in 2000. Ray, a Muslim convert, is scheduled to die by lethal injection on February 7, 2019. Under Alabama’s capital punishment protocol, a condemned inmate is allowed to meet with family and a spiritual adviser of his own choosing in the time leading up to the execution, but only a state-employed Christian prison chaplain may accompany the inmate into the death chamber. In January 2019, Ray filed a lawsuit arguing that the presence of the Christian chaplain during his execution and exclusion of his Muslim clergy from the chamber would violate his rights under First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that forbids prison officials from substantially burdening the religious beliefs and practices of inmates. Although the state agreed that the Christian chaplain would not be in the chamber during Ray’s execution, a federal district court in Alabama rejected his claim, stressing that Ray had delayed too long in bringing his claim and that exclusion of the imam did not burden Ray’s religious beliefs.

In its amicus brief in support of Ray’s appeal, The Rutherford Institute argues that allowing the spiritual counsel of only one religion in the execution chamber is overt religious favoritism in violation of the First Amendment. As the Institute’s brief points out, “The issue presented in this case—whether a State prison may prohibit an imam from accompanying a Muslim inmate into the death chamber during his execution, despite routinely allowing similarly situated Christian inmates the spiritual comfort of Christian chaplains—implicates significant statutory and constitutional religious protections… Inmates who are not Christian may either forgo their religious exercise in the last minutes of their lives, or conform to the State-endorsed Christian prayer the Alabama Department of Corrections offers. This is precisely the discrimination the Establishment Clause forbids.”

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.

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