NEW ORLEANS — The Louisiana Supreme Court on Tuesday denied a stay request for a condemned prisoner who wants a chance to demonstrate that making him breathe in nitrogen gas as he silently meditates would violate his constitutional rights.

In an unsigned 5-2 decision, the justices denied a stay for Jessie Hoffman, who is scheduled to die Tuesday night by nitrogen hypoxia. Hoffman says his execution could be torturous and that, as a Buddhist, a violent death could impact his reincarnation in violation of the First Amendment.

Justice Jay McCallum wrote in a concurring opinion Tuesday that the Constitution does not require that all executions be pain-free.

"While most humans wish to die a painless death, many do not have that good fortune," he wrote, citing a 2015 case from Oklahoma. Outlawing any pain would prevent all executions, he added, again citing the Oklahoma case.

Justice Piper Griffin said there was still an open question of whether asphyxiation with nitrogen gas is a cruel or unusual punishment, in violation of the Eighth Amendment. She suggested that Hoffman could file a lawsuit at the district court in Baton Rouge and claim that he was trying to correct an illegal sentence.

Lawyers for Hoffman were already at the 19th Judicial District Court earlier Tuesday, and lost after the state argued that federal judges had already decided Hoffman's claims, and that raising them again weren't appropriate.

Justice John Michael Guidry said, too, that a further review was warranted. 

"(T)he Department of Corrections should not carry out executions in a hurry and without careful consideration of the constitutionality and appropriateness of this most extreme and final punishment," he wrote. Louisiana adopted its execution protocol six weeks ago.

The state has argued at every turn that the U.S. Supreme Court and also courts in Alabama — where four nitrogen executions have occurred — have upheld the use of the gas to suffocate inmates.

Hoffman was condemned to death for the 1996 kidnapping, rape and murder of a New Orleans advertising account executive. Mary "Molly" Elliot was abducted in New Orleans and taken to St. Tammany Parish, where she was raped and then shot execution-style and left in wetlands along the Pearl River. She was 26.

Since Louisiana's adoption of a nitrogen hypoxia death protocol in February, Hoffman's lawyers have been arguing that asphyxiating a Buddhist who practices meditative breathing would not only be a cruel or unusual punishment, but that it would also violate his religious rights guaranteed under the Constitution.

His latest plea in state court failed when Judge Richard "Chip" Moore agreed with state lawyers who argued that a federal court decision over the same set of facts made additional arguments redundant.

"Louisiana threw up these procedural roadblocks in the face of his genuine moral motion to have his religion respected at the time of his death," lawyer Cecelia Kappel said after the hearing. "This is a moral issue. ... At what point does Jessie Hoffman get to say 'I cannot be tortured to death?'"

Hoffman, 46, is scheduled to die between 6 p.m. and 9 p.m. Central time. 

"I thought in Louisiana we valued the right to practice religion and at no time is it more important than at the time of your death. Your last rites," Kappel said outside the courthouse. "I thought wrong."

Hoffman's lawyers had wanted his spiritual adviser to tell Moore about Buddhist religious practices, but the state said there was no point because federal courts had considered the same evidence and ruled against the inmate.

"This matter has already been tried" and Hoffman lost, said lawyer Connell Archey, representing Louisiana. It was pointless to follow the same path since precedent dictates that the execution should proceed, he said.

But Hoffman lawyer Kathryn Burke said Louisiana law allows people broader religious rights and that Hoffman should be allowed to pursue them. 

Archey also said Hoffman's team engaged in "gamesmanship" by preparing the current court case last Wednesday but not bringing it until Monday. Burke said the federal court stay in effect at the time and would have made the current suit moot.

Witnesses for the state said in a federal court hearing two weeks ago that, if Hoffman breathes deeply, the nitrogen will force oxygen from his lungs and render him unconscious quickly. At the same hearing, Hoffman's witnesses said instinct would likely lead the inmate to hold his breath and that he would die in a cruel or unusual manner

In a court filing Monday, Hoffman said breathing in pure nitrogen would impact his ability to practice meditative breathing and cause him to panic instead.

"Mr. Hoffman sincerely believes that he must practice his Buddhist breathing exercises at the critical transition between life and death, called the Bardo," the lawyers wrote. "He believes that if he has traumatic final moments, they can negatively impact the Bardo, which can lead to a negative rebirth."