Alabama asked the U.S. Supreme Court on Thursday to permit it to execute a Muslim man convicted of murder without his imam present in the room.
Domineque Ray was scheduled to be executed at 7 p.m. ET on Thursday before the sentence was halted on Wednesday by a federal appeals court in Atlanta. Ray was convicted of a 1995 killing of a 15-year-old, although, in a separate court petition, he is challenging certain evidence that was used to convict him.
Alabama had said it would allow for a Protestant chaplain to be in the execution chamber. The state said the chaplain is a state employee and a member of the execution team, and that permitting a member of the "free-world" into the room — such as Ray's imam — would raise security concerns.
A three-judge panel of the U.S. 11th Circuit Court of Appeals stayed the execution, saying that the case "touches at the heart of the Establishment Clause."
The Establishment Clause of the U.S. Constitution's First Amendment bars the government from "prohibiting the free exercise" of religion, which the top court has interpreted to mean that the government may not favor one religion over another.
Alabama asked the justices to overturn the lower court's ruling, reasoning that its prohibition on the imam being in the room does not substantially burden Ray's religious freedom. In court documents, the state said the imam "may witness from one of the adjacent viewing rooms, separated from the execution chamber by two-way glass."
But that argument was unlikely to succeed, the Eleventh Circuit said in its Wednesday ruling. It requires five of the nine justices to grant a stay of the lower court's order.
"We are exceedingly loath to substitute our judgment on prison procedures for the determination of those officials charged with the formidable task of running a prison, let alone administering the death penalty in a controlled and secured manner," wrote Judge Stanley Marcus.
"Nevertheless, in the face of this limited record, it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment," Marcus wrote.
The court also chided Alabama for failing to provide evidence for its claims that it could not allow an imam into the room without jeopardizing its security protocol. It noted that both the prison warden and the chaplain declined to provide Ray the prison's policy in writing.
In a last-minute submission to the high court on Thursday, Alabama provided the justices with an affidavit from Jefferson Dunn, the commissioner of the Alabama Department of Corrections.
Dunn said in the affidavit that barring the imam and others who are not specifically trained on prison procedures was necessary "to maintain the security of the execution chamber and of the persons present, both employees and witnesses."
Attorneys for Ray disputed the claims in the affidavit, responding that Dunn "actually adds no new information" about specific security concerns and protesting the inclusion of new evidence so late in the legal process.
The imam, Yusef Maisonet, said he wanted to be present in the room to ensure that Ray's last words are "There is no God but God, and Muhammad is his prophet," in line with Muslim religious practice, according to local media.
"If they exclude me, they may ask him something and ask him to reply and those won't be his last words," Maisonet said.