SCOTUS under Trump


Your citation just confirms what I said: That the lower court ignored when Ray learned that his imam would not be permitted, and decided instead that he should have learned earlier, and that because he didn’t learn earlier, his religious freedom claim needn’t be treated as sincere.

Here is the SCOTUS majority in Masterpiece:

In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise,


Despite my poor paraphrasing, the court did not judge Ray’s “sincerity”. It judged whether he was “reasonable”. Because the standard is always what a “reasonable person” would have done, not what actually happened.

If you are served a lawsuit but don’t actually read the summons, you might miss your court date. And therefore lose the lawsuit. At that point no court will listen to your defense, even if it has a rock-solid basis on your fundamental rights. It’s too late. And no court will care if you didn’t know your court date, because the papers were literally in your hands and you should have known.


Sure, but that’s a terrible analogy to this case. Ray was given information that led him to believe his Imam would be permitted, because the information the prison provided didn’t clearly distinguish between in the chamber and in the audience. You’re basically arguing that I should be scouring the legal databases and filings every day to see if I have been served a subpoena that has somehow gotten lost, and that if I don’t do that, it’s on me.

We can agree to disagree, but there’s really no doubt that SCOTUS could have kept this whole thing at arms length and let the 11th circuit here the argument on Ray’s rights. Even conservatives are arguing that point. Basically the court determined that the state’s procedures and rules trumped his rights without ever hearing the case.


The reality is though, this guy was likely not actually a devout Muslim. So the effect of the decision likely didn’t actually have a significant impact, beyond not delaying his execution for a horrific crime.


I’m pretty sure that SCOTUS has similarly opined that it isn’t their place to decide if someone’s avowed beliefs are sincere or not.

Alabama’s laws / rules are transparently biased in favor of Christians. Why isn’t that a matter worthy of review by the 11th circuit? Why cut off that review to expedite an execution that not even Ray was fighting any more?


No, I’m arguing that if he had made the same request sooner, he would have succeeded.

Is it reasonable to wait until the last minute to make a request from an administrator, particularly if you’ve never filed it before and are not well-versed in the bureacracy? I don’t think so. Even for something as mundane as a passport, I’m sure not going to wait until the last possible minute to file an application. And if I did that and there were a misunderstanding (eg application rejected because the photo did not meet requirements) then I would accept the blame.


The state set his execution date on November 6, it denied Ray’s request for an imam on January 23, and Ray filed his application for judicial relief on January 28.


And when did he first inform the state of his request?


According to the dissent he did it as soon as he knew about it, which wasn’t for a while because they didn’t tell him.

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.

Basically the statute said he can have a spiritual advisor. So he assumed he could. Then later he finds out: “Well, we mean they can be in the viewing room, you get a Christian dude in the chamber with you.” They never gave him a copy of that, in fact they refused to give him a copy.

It’s Alabama, so I’m giving no one the benefit of the doubt, even if the world is probably a better place without Ray in it. They could’ve accommodated him easily and their system is setup to deny non-Christians in all cases. You have to be hired by the state. The state only hires a Christian dude.


Famous last words. That’s what lawyers are for. He had a lawyer.

Ok, that could stand improvement.

On the other hand, his imam said that out of 581 inmates, only 8-10 people attend his monthly service. And this particular prison can’t even afford to pay more than half of its guards. So I think there might be more going on than plain old religious animosity.


Thanks. Great article.


Probably a shitty court appointed one. He was a child rapist and murderer, not to mention poor as shit odds are not a lot of people were lining up to represent him.


It’s no longer possible to believe that you’re uncertain how the court should have decided this matter. Several people have pointed out to you that the prison kept from Ray the information he needed to make his claim earlier, and you just keep repeating that it’s his fault for not making his claim earlier. What’s with that?


Because I still don’t know when he initiated his request.

If he or his lawyer made a request on November 8 and the prison didn’t give an answer until January, then I think he should have won. Likewise if they told him the imam could enter the chamber and then changed their mind.

If he made a request on January 22 and the prison said no on January 23, then I think he was too late.

The information “kept from Ray” seems to be a written policy. If they didn’t give him any answer at all, then of course he should prevail. But whether the policy is written doesn’t actually matter to me, provided the prison can show it has never let non-employees into the chamber and has promptly stated this whenever asked.

The important thing is a prompt and reproducible answer. Writing the policy down is the means, not an end in itself.


The National Review and Kagan both pointed out that they didn’t give him that information. They even withheld that information. Plus, it’s kind of assumed that he would be allowed in there because this is America, not Iran.

When the National Review and Kagan agree on something, odds are they’re right because they agree on basically nothing. If this dude was a Christian denied access to a priest, they would’ve come down on Alabama like Tunguska. People would be marching in the streets and jobs would be lost. But he was a poor black child rapist murderer and a Muslim, so most people don’t give a fuck.


I haven’t found a full timeline of what happened.

As far as I can tell, Ray made the request at some point. His request was denied. He subsequently asked for a written policy, and they didn’t provide one. Their failure to provide a written policy after denying him is the basis for the claim, “they withheld information”.

But that’s silly. If he had a prompt answer, he already had all the information he needed. If the answer was not prompt, or if there were multiple conflicting answers, then again a written policy is irrelevant and he should prevail.

Asking, “Can I see your written policy?” often strikes me as a stalling tactic. There are always some decisions that must be made without a written policy in place. You write down a policy only when the same circumstances have repeatedly arisen or are expected to do so.

If you walk into a random government building and urinate on a desk, you will promptly be escorted out. Even if there is no specific written policy at that facility about desk-urination. Absence of a desk-urination policy is not unfair, since (a) every desk-urinator is escorted out, and (b) if you had bothered to ask then you would have been told this in no uncertain terms.

Finally, I don’t care what the National Review thinks, even if they agree with liberals. In fact, taking the National Review seriously because they agree with liberals is naked confirmation bias. I will note that some of the Volokh crew have expressed the same uncertainty as I do, so thoughtful conservatives do not all necessarily agree with Kagan.


It is quite clearly the case in this situation that the decision not to permit the Imam was not a seat-of-the-pants decision and that there was with certainty some kind of documented regulation which prohibits non-employees in the chamber. Which is to say, I don’t even know why you’re making this argument.


I brought it up because I thought I read somewhere that the state couldn’t produce its policy. I assumed it was due to poor record keeping. It turns out that execution protocols are secret.

The fact that the state could not (or would not) provide their written policy matters only if their practices were inconsistent, which to my knowledge nobody has alleged.


So how is someone supposed to ask for a change to secret information?

I don’t see the argument of: “It’s fine that the government violates your Rights as long as it’s a secret that they’re violating them.” But that’s the argument you’re going with. That’s some Gestapo-level shit.


That’s not what happened. He asked for his imam to be present. He was told the request was denied, because the imam was not an employee. He asked for a copy of the execution protocols, which was also denied.

It would be one thing if he never received an answer to his first request. But he did. So his status was not a secret.

Maybe you mean that the process that led to his status was kept secret. But that’s very common:

Let’s say you are bumped from a flight. You demand the airline show you the algorithm they use to determine who will be bumped. Your request will most certainly be denied.

Let’s say you are laid off. You demand your company show you their internal documents regarding who will be terminated if cutbacks are necessary. Again, very unlikely to happen.

Ray had a legitimate question regarding his status, and it was answered. That doesn’t mean he automatically gets access to all of the paperwork that supports the decision. That information very often doesn’t come out until after a lawsuit is filed. You can’t just pretend you have subpoena power the moment you hear something you don’t like.