“we can speculate that had Ray requested some other outside minister of the Christian faith, the same rules would have applied.”

We shouldn’t have to speculate; can we not consult prison records to determine if a Christian minister was ever given access to the execution room under the same law? If not, then we cannot claim discrimination. If there is no case in which a Christian minister was granted access to the execution room, then there has been no discrimination. You can’t discriminate between two things if there’s only one of them.

If there had been such a case, it would have been trivially easy for the defendant’s counsel to use that case as a basis for a discrimination claim, which I think would then be a no-brainer for the Supreme Court.

While it’s true that the “too late” reasoning is unsatisfying — and possibly wrong, if the defendant had indeed acted immediately upon learning of the denial of access — it reflects the Supreme Court’s reluctance to tackle such a hard case. The adage is “Hard cases make bad law.” Deciding whether religious ministers should have access to the execution — that is, balancing between procedural requirements and religious rights — would have been hellishly difficult. Can you state with certainty that the importance of getting everything perfect during an execution, given how many executions have been botched, must be subordinated to religious rights? I certainly can’t. I’d have to do a lot of research before I made up my mind.

Master of Science, Physics, 1975. Computer Game Designer. Interactive Storytelling. www.erasmatazz.com

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