Judicial Establishment Clause Discretion: The Use of Procedure as Pre-text by SCOTUS

By: Maya Jefferson

Bird sitting on barbed wire fence looking into sunlight.

Recently, the United Supreme Court damaged its reputation and adopted a playbook similar to that of Donald Trump’s. Trump is known for his racist and anti-Islamic ideology, his contradictory statements, and inability to admit when he is wrong.[1] Earlier this year, the Court made a grievous mistake that runs parallel to what we see on the news from the President of the United States. In Dunn v. Ray,[2] a case involving a black death row inmate’s right to have his religious leader present at the time of his execution, the Court affirmed the State’s argument and held that Mr. Ray’s request for his imam’s presence was untimely and, therefore, the prison did not have to accommodate his request. In contrast, the Court, on March 28, 2019, granted the stay of execution for a white inmate requesting Buddhist religious accommodations in the same context. The Court seemingly attempts to correct its decision with no explanation or acknowledgement of its glaring contradictory decision just a month later.  While race and religion should not matter in a case involving the Establishment Clause, I argue that a potential reason for the court’s discrepancy are those two factors.

The legal concept of pretext can provide a useful analogy to explain why the reasoning of the Court is so unacceptable and may be discriminatory. Typically, employee-plaintiffs use the idea of pretext in employment discrimination cases to prove that the employer’s proffered reasons for adverse action against the employee were phony, and that the employer’s actions were actually driven by discriminatory intent.[3] Pretext can be established directly by showing that an employer was more likely that not motivated by a discriminatory animus or, indirectly, by providing evidence that the employer’s explanation is not credible. Let’s assume, for the sake of this analogy that the Court is the employer, the Court’s decision is its explanation, and that indirectly, its decision was discriminatory. Indirect proof of pretext can be supported by showing that the employer’s (SCOTUS) actions had no basis in fact or the reason given (untimeliness of Ray’s request) for the adverse action (vacation of the stay for executions) was insufficient to warrant the action. In other words, the Court distinguishing between the black Muslim’s request for religious accommodation and white Buddhist’s request based on timeliness is pretext for discriminatory action.

First, the Court’s decision in Dunn v. Ray had no basis in fact because the Court disregarded key facts that would have affected its determination regarding whether Domineque Ray’s request was timely. In January 2019, an Alabama prison refused Ray’s request to have an imam attend his last moments of life.[4] On February 7, 2019, the Court granted the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.[5]  Prior to the Court’s decision, the Eleventh Circuit granted Ray’s stay request because Ray was substantially likely to succeed on the merits of his First Amendment claim, and equities weighed in favor of granting the stay.[6] The Court reversed the lower court’s decision without mentioning that Ray could not have known earlier that only religious advisors who were prison employees could enter the execution room. The Alabama prison warden informed Ray of the prison policies on January 23rd, fifteen days before his execution date, and denied Ray’s request to see the prison’s policies that supposedly controlled the institution’s denial of his request. The State did not offer evidence that Ray could have known the policy before this date, and the prison’s actions that impeded Ray’s ability to advocate for himself are material in light of the procedural reasons provided by the Court in its decision. Consequently, the facts that the Court relies on are incomplete and the decision should be considered without factual basis.

Lastly, the Court’s reason for its decision to vacate the stay of execution was insufficient to warrant the vacation.[7] In a fourteen line decision, the Court disregarded the concerns of the Eleventh Circuit using arbitrary procedural rules to conclude that Ray’s failure to request his imam’s presence in a timely manner precluded consideration of the request.[8]  In contrast, on March 28, 2019, in Murphy v. Collier,[9] just over a month after deciding Ray’s case, the Court granted Patrick Murphy’s stay request.[10] In the latter case, Murphy was a practicing Buddhist and requested that a Buddhist adviser be present in the execution room. The Texas prison, only employing an imam and a Christian minister, ignored his request. The policy in the Texas prison and the Alabama prison in Ray are identical in all relevant aspects.[11] Before the Texas prison could formally deny his request, Murphy sought relief and the Court provided it. In Justice Kavanaugh’s concurrence in Murphy, he notes that Murphy expressed his desire to have a Buddhist adviser in the execution room one month before his execution date, and this was a timely request.[12] He added this footnote to seemingly explain why Murphy’s case was different from Ray’s—who requested his religious accommodation fifteen days before his execution date.

While a month obviously gives a prison more time than two weeks to make religious accommodations, this two-week difference does not warrant the Court’s decision. The Court has told the American people that a difference of two weeks in notice before an arbitrary execution date can either give or take away a human being’s right to practice his faith in his last moments of life.

Religious leaders from multiple faiths, respected columnists, and professors were among the critics of the Court’s contradictory decisions in Ray and Murphy.[13] With little distinguishable facts, it seems that the Court decided these cases on discriminatory grounds. While other critics see the Murphy case as an example of simple correction, it is not. The Court would not have made this mistake had Ray been a white man. Moreover, the Court may have even made the same mistake again had Murphy been a black man.


[1] See David Leonhardt and Ian Prasad Philbrik, Donald Trump’s Racism: The Definitive List, New York Times (Jan. 15, 2018); Brian Klass, A Short History of President Trump’s Anti-Muslim Bigotry, Washington Post (March 15, 2019).

[2] Dunn v. Ray, 586 U.S. 1 (2019).

[3] McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

[4] Dunn v. Ray, 586 U.S. 1 (2019).

[5] Id.

[6] Ray v. Commissioner, Alabama Dep’t of Corrections, 915 F.3d 689 (11th Cir. 2019).

[7] Adam Liptak, Justices Allow Execution of Muslim Death Row Inmate Who Sought Imam, NEW YORK TIMES (Feb 7, 2016)

[8] See Dunn v. Ray, 586 U.S. 1 (2019) (reasoning that Ray’s request for religious accommodation was in an untimely manner with no mention of the lower court’s acknowledgment of prison action that impeded Ray’s ability to request the accommodation sooner).

[9] No. 18A985, 2019 WL 1410989 (S. Ct. March 28, 2019).

[10] See id.

[11] See Murphy v. Collier, Complaint Filed Pursuant to 43 U.S.C. 1983, 2019 WL 1382339 (S.D. Tex.2019) (noting that the Texas and Alabama employed chaplain is present during executions unless the inmate requests otherwise; both facilities’ policies state that only employees can be present during the execution; both departments employ no religious clerics other than those already on staff; and the effect of these policies is that the inmate must choose to have either the religious cleric on staff  or no spiritual advisor present during his execution).

[12] Murphy, 2019 WL 1410989, at fn. 11.

[13] See David French, The Supreme Court Upholds A Grave Violation of the First Amendment, National Review (Feb. 8, 2019); Ilya Somin, George Mason University Antonin Scalia Law School; United States Conference of Catholic Bishops, U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution, (Feb. 8, 2019); Alan Cross, Does Alabama Support Religious Liberty?, NEW YORK Times (Feb. 10, 2019).